Avadh Behari Rohatgi, J.
(1) The short question in this appeal is about the meaning of the word 'possession' as used in section 10(a)(iv) of the Evacuee Interest (Separation) Act, 1951 (Act of 1951).
(2) The appellant Suleman and some of his collaterals were co-sharers in land comprising Khewat No. 19 Khatauni No. 115 of 121 in village Satbari Delhi. They were the owners in possession of this land before the partition of the country. On account of the division of the country and the communal disturbances which followed in its wake the collaterals migrated to Pakistan. On their migration their right, title and interest in the property vested in the Custodian of Evacuee Property by virtue of the Administration of Evacuee Property Act, 1950 (Act of 1950).
(3) The share of the collaterals in the said land was found to be 11/12. The appellant's share was only 1/12. The appellant was a non-evacuee. The Custodian laid in- formation before the Competent Officer under the Act of 1951 that in the aforesaid agricultural land which was a composite property the evacuees' share which had vested in him be separated from the share of the appellant, a nonevacuee. The Competent Officer partitioned the land by his order dated 16th December, 1959. The composite property which was a joint Khata was divided into two separate Khataunies. To the share of the appellant he allotted Khasra No. 77/2 measuring 4 bighas 2 biswas. To the Custodian he allotted the remaining land measuring 44 bighas 15 biswas. The land allotted to the Custodian included Khasra No. 23/1 measuring 4 bighas. We are mentioning this because much will turn on this particular Khasra as we shall see later.
(4) On April 29, 1970 the appellant made an application to the Competent Officer requesting that possession of the land allotted to him on partition be delivered to him. One Fauji, respondent No. 4, atonce filed objections to this application alleging that he was in possession of the land allotted to the appellant and that he was a tenant of the Custodian therein and as such only symbolic possession can be given to the appellant. The objections of Fauji were dismissed by the Competent Officer. He held that Fauji was an unauthorised occupant. He ruled that the appellant was entitled to the actual delivery of possession of the land allotted to him on partition. He issued warrant for possession. This was his decision on March 16, 1972.
(5) From the order of the Competent Officer dated 16th March 1972 Fauji filed a revision petition before the Appellate Officer under the Act of 1951. The Appellate Officer took a different view. He held that only symbolic possession could be delivered to the appellant and not actual physical possession as had been ordered by the Competent Officer, He set aside the order of the Competent Officer on June 30, 1972.
(6) The appellant filed a writ petition under Article 226 of the Constitution in this court in 1972 challenging the validity of the order of the Appellate Officer. In the writ petition his main prayer was that he is entitled to actual physical possession of the land which has been allotted to him on partition. The learned single judge did not accept the contention of the appellant. He dismissed the writ petition on 8th February, 1980. From the order of the learned judge this appeal has been brought under clause 10 of the letters patent.
(7) One more fact may be stated here to understand the dispute. After the migration of appellant's collaterals then- interest: vested in the Custodian under the Act of 1950. As the interest of the collaterals was 11/12 the Custodian of Evacuee Property took over the management of the entire property. It appears that near about 1954 Fauji, respondent No. 4, entered on this land. It also appears that for some time the Custodian realised some money from him. Fauji himself has produced a receipt dated 20th May 1971 which shows the payment of 'rent/lease money' to the Custodian. On the strength of this payment Fauji claimed that he was a tenant of the Custodian. This is what he claimed before the authorities under the Act of 1951. But his claim was turned down. The authorities have found as a fact that he is an unauthorised occupant of the land and has continued to be so there from 1954 till today.
(8) The land in occupation of Fauji has been allotted to the appellant on partition. The appellant asked the Competent Officer under s. 10(a)(iv) of the Act of 1951 to deliver actual possession of 4 bifihas 2 bids was which has come to his share on partition. The Competent Officer held that the appellant was entitled to actual possession. But the Appellate Officer and the learned judge took a contrary view. They have held that he is entitled only to symbolic possession suggesting thereby that his remedy is to file a suit in a civil court against Fauji turn recovery of possession of the land allotted to him on partition. It is the validity of this view which has been canvassed before us in this appeal.
(9) Section 10(a)(iv) of the Act of 1951 in so far as it is material, reads as under :
'S.10. Separation of the interests of evacuees from those of claimants in composite property--Notwithstanding anything to the contrary in any law or contract or any decree or order of a Civil Court or other authority, the competent officer may, subject to any rules that may be made in this behalf, take all such measures as he may consider necessary for the purpose of separating the interest of the evacuee from those of the claimants in any composite property, and in particular may,
(A)in the case of any claim of a co-share? or partner
(I)direct the custodian to pay to the claimant the amount of money assessed in respect of his share in the composite property or deposit the same in a Civil Court having jurisdiction over such property and deliver possession of the property to the Custodian and the claimant may withdraw the amount in deposit in the Civil Court ; or
(II)transfer the property to the claimant on payment by him of the amount of money assessed in respect of the share of the evacuee in the property ; or
(III)sell the property and distribute the sale proceeds thereof between the Custodian and the cliamant in proportion to the share of the evacuee and of the claimant in the property; or
(IV)partition the property according to shares of the evacuee and the claimant and deliver possession of the shares allotted to the evacuee and the claimant to the Custodian and the claimant respectively ;
(10) Section 10(a)(iv) with which we arc concerned clearly lays down two powers of the competent officer. Firstly he is given power to partition the property according to the shares of the evacuee and the claimant. In our case this has been done. The competent officer has partitioned the property and has allotted 11/12 share to the Custodian and 1/12 to the appellant. Secondly power is given to the competent officer to 'deliver possession of the share allotted to the evacuee and the claimant to the Custodian and the claimant respectively'.
(11) This means that after specifying the shares of the parties in the composite property the competent officer has also to deliver possession of the shares allotted to the respective parties. What is the meaning of the term 'possession' as used in this section This is the sole question for decision in this appeal.
(12) Prima facie it would appear that where the Parties themselves are in possession then actual possession has to be delivered to them by asking them to interchange their position according to the allotment of the shares. They can exchange their shares, if they are equal. In this case the appellant has to be delivered actual possession of the land allotted to him. The Custodian is asking the appellant to hand over possession of the land which is in his occupation at the present moment. The appellant is in possession of Khasra No. 23/1 measuring 4 bighas. Admittedly this has been allotted to the Custodian. The Custodian now claims from him (hut he, the appellant, should deliver vacant possession to him and threatens that if he does not do so he will have recourse to his powers under s. 11 of the Act of 1951 and shall use force against him to take possession of the property allotted to him (the Custodian) on partition. The appellant in his turn says the same thing to the Custodian. He says : 'you deliver vacant possession of Khasra 77/2 measuring 4 bighas 2 bids was which has come to my share.' The Custodian refuses to hand over vacant possession mainly for the reason that Fauji is in occupation of the said land. The authorities under the Act of 1951 thereforee came to the conclusion that only symbolic possession of Khasra No. 77/2 could be delivered to the appellant.
(13) We cannot accept the view taken by the Appellate Officer and the learned judge. In our opinion the appellant is entitled to the delivery of actual possession. He can ask the competent officer to deliver vacant possession of Khasra No. 77/2. We think the competent officer has ample power to do so. Section 10(a)(iv) expressly authorises him to deliver possession. Possession in the circumstances of this case must mean actual physical possession. If this view is not taken it will lead to a most unjust situation. The Custodian will get vacant possession of the land. But the appellant will be left to the tedious and dilatory remedy of a suit for possession which may linger on for years. The Custodian will have the best of both worlds. He will take vacant possession from the appellant but will not give possession to the appellant on the specious ground that it is no longer his responsibility to evict Fauji because that land has gone to the share of the appellant. We cannot countenance such a view. He who seeks equity must do equity.
(14) The reason for our view is that for all practical purposes Fauji is in occupation of the property under the Cus- todian. Fauji has no independent right which he can claim against the Custodian or the appellant. Section 8(4) of the Act of 1950 says :
'where after any evacuee property has vested in the Custodian any person is in possession thereof, he shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorised by him in this behalf.'
Under s. 9 of the Act of 1950 the Custodian is armed with the further power to take possession of the evacuee property. He can use such force as may be necessary for taking possession of the property, if the person in possession of the exacuee property refuses or fails to surrender possession to him. These two provisions clearly apply to the present case. Fauji has been held to be in unauthorised occupation. He is in occupation of what was once an evacuee property admittedly. He is bound to deliver vacant possession to the Custodian on being asked to do so. The Custodian can employ force against him if he refuses to vacate. We do not see why this course of action was not taken when during the period from 1954 to 1959 it was found that Fauji was in unauthorised occupation. But in any case that cannot defeat the claim of the appellant. He is entitled to ask for vacant possession. It is custodians business to evict Fauji from the land which has fallen to the share of the appellant. The appellant cannot be asked to file a suit for recovery of possession. The jurisdiction of the civil court is barred under s. 20 of the Act of 1951. It is precisely for this purpose that the competent officer has got ample power to deliver vacant possession where on partition he allots separate shares to the custodian and the claimant.
(15) The learned judge has based his view on rule ll-E (3) (a) of the Rules framed under the Act of 1951. In our opinion, that rule talks of symbolic possession only in cases of transfer of a property on partition to a third person. In the present case there is no transfer. The appellant and his collaterals were co-owners. On partition between the co-owners there is no transfer of property. This has been held by the Privy Council (sec Girja Bai v. Sadashiv Dhundiraj, 2nd 43 Calcutta 1031(1) and the Supreme Court (sec Sarin v. Ajit Kumar, : 1SCR349 . thereforee, it is not a case of transfer on partition. Secondly we find that even under that rule only a tenant or a person entitled to remain in occupation of the land or an allottee are protected because such persons are in occupation of the property prior to transfer on partition. Fauji cannot claim any benefit of this rule. He is an unauthorised occupant. He has no equity in his favor. He cannot say that only symbolic possession be delivered to the appellant and that he be left undisturbed in his unlawful and illegal possession. We cannot concur in such a view, though we find that it appealed to the learned judge.
(16) 'THE learned judge was not unmindful of the injustice of the case. He said : 'The claimant is certainly entitled on partition to obtain actual physical possession of his share, as otherwise his share may be illusory.' But he thought that he was helpless because the legislature had not provided any 'machinery' in the Act to give actual possession to the appellant. With all respect we think he was in error. Under s. 10 the competent officer is empowered to 'take all such measures as he may consider necessary for the purpose of separating the interest of the evacuee from those of the claimants in any composite property' and in particular to deliver possession. These are words of ample conferment.
(17) We have come to the conclusion that in all the circumstances and justice of the case the appellant is entitled to actual physical possession of the land allotted to him on partition. Till actual possession of the land allotted to him is given, the Custodian has no right to call upon the appellant to deliver vacant possession to him of the land which has come to the share of the Custodian, viz Khasra 23/1. For these reasons we allow the appeal and set aside the judgment of the learned judge. The parties are however left to bear their own costs.