Avadh Behari Rohatgi, J.
(1) This is a letters patent appeal from the order of a learned single judge dated 11th August, 1972.
(2) The real question in this appeal is whether 1/12th share of Mst. Badri Jan, a muslim woman, in land was an evacuee property and had been validly declared as such by the authorities under the Administration of Evacuee Property Act, 1950, as it was subsequently amended by Act 32 of 1954 (the Act).
(3) These are the facts. One Dina Nath purchased a garden in village Jhamunma and Sadora Khurd on April 10,1896. He paid Rs.3500.00 as consideration. The vendors were two muslims-Mohd. Zaman Khan and Akram Khan. It was recited in the sale deed that by virtue of a judgment of the district court they, the vendors, had been declared as owners of the property which they were conveying to Dina Nath. From the recitals it appears that some parties had preferred an appeal from the order of the district judge dated 11th December, 1895 which had obviously gone infavor of the vendors. The sale deed further recites that till the appeal is decided I/I 4th of the consideration payable for the share of Elahi Begum will remain in the hands of the purchaser. The vendors convenanted in the sale deed that they will take steps to have the name of Mst. Badri Jan deleted from the revenue records. Badri Jan was an attesting witness to the sale deed. She was perhaps the wife of Mohd. Zaman Khan, one of the executants of the deed, though she is described as the daughter of Sakina Begum.
(4) From 1896 to 1955 nothing remarkable happened. Dina Nath continued to be in possession of the property as an absolute owner. His name was mutated in 1894. In 1902 he constructed a boundary wall. In 1902 a part of the property was acquired by the Government and Dina Nath received the enhanced compensation from the district judge Delhi, Mr. Clifford. In 1925 Dina Nath erected a building at a cost of about 3 lakhs. In 1945, 1948 and 1958 the bunglow was requisitioned and derequisitioned and the heirs of Dina Nath were paid compensation by the Government. There is ample evidence on the record that Dina Nath and his heirs exercised acts of ownership during this long period of more than 50 years and no one disputed their absolute right to the property. Dina Nath died after some time. His widow, sons and daughters succeeded him. They continued to enjoy the property as their ancestor had done.
(5) On 31st March 1956 a notice under Section 7A of the Act was issued. On 21st July 1956 the Assistant Custodian declared Badri Jan as an evacuee. Dina Nath's heirs were unaware of these proceedings. When they came to know that I/I 2th share of Badri Jan in their property had been declared evacuee they immediately moved in the matter. They preferred an appeal. In the appeal the order declaring Badri Jan as an evacuee was set aside. The case was remanded. The appellate authority directed that an opportunity be given to the heirs of Dina Nath and the matter be decided in their presence. On 31st May 1970 again an order declaring Badri Jan an evacuee was passed. That order was also set aside .on appeal. The matter came before the Deputy Custodian afterremand. On 30th June 1962 the Deputy Custodian Shri Tripathi held that Badri Jan was an evacuee and that her I/I 2th share vested in the custodian. On January 9, 1963 his order was confirmed in appeal by the Deputy Custodian General, Shri P.N. Bhanot. From his order the heirs of Dina Nath preferred an appeal to the Central Government which was dismissed on April 22, 1963.
(6) The heirs of Dina Nath brought a writ petition under Article 226 of the Constitution challenging the decision made by the authorities under the Act. The learned single judge held that the decision of the authorities was wrong and they had no jurisdiction to declare 1/1 2th share of Mst. Badri Jan in Khasra No. 395, 397 and 398 measuring 11 bighas 6 bids was evacuee property. The decision was held to be void and a nullity. From his decision the Custodian of Evacuee property has preferred this appeal.
(7) The principal question in this appeal is about onus of proof. The Custodian under Section 7A of the Act has to determine whether any property is or is not an evacuee property. In order to determine that he has to find out whether a particular person is or is not an evacuee. If he is, then the further question is as to whether the property in dispute belongs to that person. It is only after finding that the property belongs to that person that a declaration is possibly that the property is evacuee property. (See Custodian of Evacuee property v.Jafran Begum, A.I.R. 1968 S.C. 179).
under section 7A of the Act the property of any person can be declared evacuee property.
'WHOon account of the setting up of Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances had left on or after 1st day of March 1947 any place now forming part of India, and who on the 7th day of May, 1954 was resident of Pakistan'.
Therefore two conditions have to be satisfied before a property can be declared evacuee property. First that the evacuee left India on or after 1st day of March 1947. Secondly that he must be resident in Pakistan on 7th day of May, 1954. If these two conditions are fulfillled, then that person and his property can be declared evacuee. This was the main question which the authorities under the Act had to determine. They came to the conclusion that Badri Jan was an evacuee.
(8) In order to determine that BadriJan was alive to 1947 as well as in 1954 a lambardar was produced before the authorities under the Act. He made a cryptic statement that Mst. Badri Jan has migrated to Pakistan during the disturbances of 1947 and was a resident of Pakistan on 7th day of May, 1954. On this statement Shri Lakhmi Dass, Assistant Custodian, by order dated July 21, 1956 declared Badri Jan an evacuee and her l/12th share evacuee property. On appeal his order was set aside. The matter was remanded by the Deputy Custodian General, Shri Tara Ghand Aggarwal, Though again the authorities came to the same conclusion their decision was again question in appeal resulting in a further remand. Before the authorities the heirs of Dina Nath led evidence. They produced an inscription from the tomb of Mst. Badri Jan which showed that she had died some time in 1939. Other witnesses were also produced who said that they had participated in the funeral of Badri Jan and knew as a fact that she had died on 4.11.1939. This evidence of the heirs of Dina Nath was rejected by the authorities on the ground that it was unsatisfactory and unconvincing. thereforee they held that Mst. Badri Jari was an evacuee. This is the substance of their decision.
(9) Under S. 7A the onus to prove that a person is an evacuee lies on the custodian. He has to prove it as a fact that that person was alive on the relevant da e and that he was a resident of Pakistan on 7th May, 1954. Except the bare statement of the lambardar there was no evidence worth the name. That evidence cannot be the basis of any decision because the statement of lambardar was recorded in the absence of the heirs of Dina Nath. When they appealed the authorities were directed to give them an opportunity. This opportunity not only meant that they were entitled to produce their evidence it also meant that they were entitled to cross-examine such witnesses as the custodian produced. When the matter was at large before the authorities it was for the Custodian to establish by cogent evidence that Badri Jan was alive and was an evacuee. But no evidence was tendered in the presence of the heirs of Dina Nath. The evidence of the heirs was of course recorded. But that was rejected as unconvincing. Plainly the authorities misapprehended the legal position. They were mistaken in the law. It was not for the heirs of Dina Nath to prove that Badri Jan was alive and was residing in India and in Pakistan on the relevant dates. This was a wholly erroneous approach to the question which resulted in miscarriage of justice. The burden Jay on the custodian to prove that Badri Jan was alive at or about the time of the partition of the country and that she had left India for Pakistan on account of outbreak of communal strife and that she was in fact the owner of a l/12th share in the property which Dina Nath had purchased.
(10) The upshot of the discussion is that it was incumbent on the custodian to prove affirmatively that Mst. Badri Jan was alive in 1947 and that she had left India in or after March 1947 and that she was residing in Pakistan on 7th May, 1954. These are jurisdictional facts which were to be established before the property could be declared evacuee. The Custodian and for that matter any statutory tribunal cannot assume jurisdiction by deciding those facts erroneously. And if it does, the court in its writ jurisdiction will set aside those findings on the ground that there is no evidence to support them. .(See Anisminic Ltd. v. Foreign Compensation Commissien, 1969 A.C. 147). If a tribunal of enquiry misconstrues the provisions giving it power to act and determines the question of burden of proof erroneously which results insubstantial injustice it will be the duty of the court to correct the error.
(11) The other question that was argued before us, as was done before the learned single judge, was whether Badri Jan was the owner of l/12th share of the property. The central question here is again of onus. The custodian claims that 1/12th share of Badri Jan vests in him. For this he relies on the revenue entries which go to show that in the revenue record the name of Badri Jan continued to appear for a large nunber of years since 1906. This is the only evidence on the basis of which it is now contended that Badri Jan was the owner of 1/12th share.
(12) Counsel for the Custodian has urged that the revenue entries raise a presumption in favor of ownership of Badri Jan and that it was for the heirs of Dina Nath to rebut that presumption and to show positively that they were the exclusive owners of the entire property. In our opinion this argument is misconceived. The presumption of the revenue entries is sufficiently rebutted by the heirs of Dina Nath by the production of the sale deed of 1896. In the sale deed it is recited that the vendors were the exclusive owners in possession of the property and they had title to convey. Their rights to this property had been upheld by the district judge in the judgment of 1895. thereforee they were competent to sell the property. But some parties dissatisfied with the judgment of the district judge had gone in appeal. It may be that Mst. Badri Jan was one of them. But there is nothing to show on the record as to what happened to that appeal. There is nothing to indicate that Badri Jan actually succeeded in the appeal. It is highly improbable that Badri Jan claimed 1/12th share in the appeal after having attested the sale deed to which her husband was a party. I/I 4th share of Elahi Begum remained in the hands of the purchaser which indicates that it was probably Elahi Begum who was contesting in appeal the correctness of the judgment of the district judge. ' There is overwhelming evidence which militates against the custodian's case that Badri Jan had 1/12th share in the property which had not been conveyed to Dina Nath.
(13) For all practical purposes Dina Nath continued to be the owner. There was no one to challenge his title. If the custodian claims that 1/12 share of Badri Jan vests in him it is for him to show affirmatively that in subsequent litigation Badri Jan succeeded and was declared as the owner of 1/12th share. Against the positive proof of the sale deed executed in 1896 the presumption relied upon by the custodian will not prevail. -The sale deed is an ancient document. It was executed more than 30 years ago. The recitals contained in the sale deed have great evidentiary value. In the presence of the recitals which we have set put in an earlier part of the judgment it is not possible to hold that Badri Jan was the owner of 1/1 2th share merely because a presumption is raised in her favor on the basis of revenue entries. 'Presumptions' it has been well said 'may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts. (Quoted in Wignore on Evidence Vo. Ix p....9). Presumptions have no place in the presence of the actual facts disclosed in evidence. Badri Jan neglected for almost half a century to assert her claim by one single act of ownership. On the other hand Dina Nath was in uniterrupted possession on the strength of the sale deed executed in 1896 in his favor. The age of the document and other circumstances suffice, in combination as good evidence of title. The mere age is itself an evidential circumstance which cannot be lightly ignored.
(14) For these reasons the appeal is dismissed. The parties are however left to bear their own costs.