Avadh Behari Rohtagi, J.
(1) This is a letters patent appeal from the order of a learned single judge dated 23-11-1973.
(2) The salient facts are simple. The dispute centres round a plot of land No. 783-A situated in Mohalla Guru Nanakpura, Namaul. The single question is whether this plot was evacuee property. The respondents, Lala and Hari Ram (hereinafter referred to as the respondents) are father and SON. They claim that the said plot was owned by them and it was their ancestral property.
(3) On 6-4-1963, this plot was listed as evacuee property in a report prepared by the Assistant Settlement Officer. That the said plot was an evacuee property was described as a 'new discovery' in the report. This is what the survey report said : 'ft is a new discovery. It is lying vacant at the spot. It is owned by one Hakim Sadiq Ali Patwari as told by Shri Net Ram member M. C. Illaqa.' The value of the property was estimated at Rs. 995. The officer who signed the survey report was one Sunder Dass, Rent Controller. After the survey report the property was dealt with as an acquired evacuee prporety under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. It was taken over by the Regional Settlement Commissioner and was treated as a pool property. It was ordered to be sold.
(4) On 28-9-1963 the respondents applied to the Tehsildar (sales) Namaul saying that the house and the court-yard sought to be sold belonged to them and that it was not a Muslim evacuee property. In the application it was said that the property had been in possession of the respondents since the time of their forefathers and consequently the auction dated 29-9-1963 should be cancelled. An office report on this application confirmed that the respondents were in possession of the plot and had constructed a house over it. The tehsildar on the application made an order that the plot in question be transferred to the respondents at the reserved price of Rs. 9951-. Accordingly the respondent Lala paid Rs. 9951- as price of the plot and a conveyance was executed in his favor.
(5) This transfer was challenged by Net Ram appellant No. 2, a local municipal commissioner stated to be on inimical terms with the respondents. His appeal against the transfer was accepted by the Assistant Settlement Commissioner, Ambala. The appellate authority was of the view that Net Ram was 'instrumental in detecting the property' and the property being evacuee it could not be transferred by the Tehsildar to benefit Hari Ram who was a peon in his office. He condemned the action of the Tehsildar and set aside the sale in favor of Lala He ordered that the property be reauctioned. The amount paid at the time of the sale was ordered to be refunded to Lala.
(6) Against the order of the Assistant Settlement Commissioner a revision was filed before the Chief Settlement Commissioner, Punjab. This revision was rejected on 16-10-1964. A revision to the Central Government also failed. Later the property was reauctioned by the Tehsildar (sales) and sold to Kundan Lal, appellant No. 1, who is stated to be the brother of Net Ram, appellant No. 2, for a sum of Rs. 1100.00 .
(7) After having purchased the property Kundan Lal brought a suit against the respondents for permanent injunction on February 2, 1965 in the court of the Senior Subordinate Judge Narnaul. The respondents contested the suit mainly on the ground that the property was not an evacuee property and as such the sale did not create any rights in favor of the purchaser, Kundan Lal.
(8) The learned Senior Sub Judge passed an order on 2-3-1966 holding that he had no jurisdiction to determine whether the property was evacuee as that question had to be decided by the Custodian in view of sec. 46 of the Act. He directed the respondents to obtain an adjudication from the Custodian regarding the character of the property in question. He accordingly stayed the suit.
(9) After the order of the Senior Sub Judge the respondents filed a revision petition under sec. 27 of the Administration of Evacuee Property Act, 1950 (the Act) on 12-4-1966 before the Custodian General, New Delhi, praying that the property in question was non-evacuee property and was owned by the respondents and that an enquiry be made regarding the ownership of the property. Mr. H. R. Nair, Deputy Custodian General, by order dated 9-11-1966 rejected the revision principally on the ground of limitation. A reference to the order of the Custodian General shows that the respondents had filed the revision to challenge the automalic vesting of the plot as evacuee property. They claimed that the property was their ancestral property and was not an evacuee property. The Deputy Custodian General found that the revision was directed against proceedings or action taken in 1963 and he thereforee held that the petition was barred by time. On the merits of the case he was of the view that the respondents had produced no evidence to establish their ownership in the property and that they had no title to the same. The- respondents' claim was rejected both on the ground of limitation and ownership. The respondents then brought a writ petition under Articles 226 and 227 of the Constitution on 19-1-1967 challenging the validity of the order of the Deputy Custodian General dated 9-11-1966. The learned single judge partly allowed the writ.
(10) The principal question in this appeal is whether the property was evecuee property. On behalf of the Custodian of Evacuee Property it has been contended that this property had automatically vested in the Custodian under the East Punjab Evacuee (Administration of Property) Ordinance Iv of 1947 which was repealed and replaced by the East Punjab Evacuee Administration of Property Act, (Act 14 of 1947). On 17-4-50, the Administration of Evacuee Property Act, Act 31 of 1950, received the assent of the President of India, sec. 58 repealed the earlier laws of automatic vesting. Sec. 8(2) of the Act of 1950 is relevant for our purpose. Sec. 8(2) reads :
'(2) Where immediately before the commencement of this Act, any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby, the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest.'
The learned judge was of opinion that there could be no automatic vesting in 1963 in view of sec. 7A of the Act which lays down that a property cannot be declared evacuee property on or after 7th May, 1954. He, thereforee, held that the action of the Custodian in declaring the property as evacnee was illegal. For this conclusion he chiefly relied on Darshan Lal v. R. L. Aggarwal and others, (1), Rubab Bai and others v. Assistant Custodian of Evacuee Property-cum-Managing Officer, Indore and another, : AIR1962MP38 (2) and Azzizun Nisa and others v. Custodian and others, : AIR1957All561 (3).
(11) Now all the three authorities followed by the learned judge had been overruled in subsequent decisions. It is unfortunate that later decisions overnuling them were not brought to his notice. So far as Darshan Lal v. R. L. Aggarwal, is concerned this decision of Grover J. was overruled by a division bench in jagatjit Distilling & Allied Industries Ltd. v. Dv. Custodian General, India and others, (4) (Mchar Singh and A. N. Grover JJ). In Darshan Lal's case Grover J. had mainly followed a decision of Weston Cj in Custodian, Evacuee Property Punjab v. Gujar Singh, (5). Weston Cj had propounded the theory that for the purpose of automatic vesting there must be some positive action, something tangible and objective which the Custodian department should have done, for example, assumption of physical control, specification of particular property as an evacuee property, express notification and the like. Tek Chand J. dissented from the view in Sham Singh v. The Custodian General, 1961 Plr 420. The theory of positive action was ultimately exploded in Jagatjit Distilling and Allied Industries (supra).
RUBABBai v. Assistant Custodian Evacuee Property, Indore, : AIR1962MP38 was overruled by a division bench of Madbya Pradesh High Court in Union of India v. Ismail Abdul Shakoor, : AIR1968MP159 (7).
Azimunnisa v. Custodian, : AIR1957All561 was overruled by the Supreme Court in Azimunnisa v. Deputy Custodian G. E. P., : 2SCR91 8). The Allahabad High Court had held that there was no valid vesting under Ordinance Xii of 1949 or Ordinance Xx of 1949 for lack of legislative competence and thereforee the deeming clause in Act Xxxi of 1950 could not continue the vesting. This defect was cured by Act I of 1960 retrospectively validating the vesting under the earlier laws. The Supreme Court thereforee held that after the amendment of Act of 1950 by Act I of 1960 automatic vesting under the repealed ordinance had been validated. (See H. Esmail Noor Mohd. and Co. v. Competent Officer, Lucknow, : 3SCR134 ) (9).
(12) The legal position thereforee is this. There is no question of issuing further notice or making a declaration that a property is evacuee property under sec. 7 of the Act if the property has automatically vested in the Custodian. As the Supreme Court has said in H. Esmail v. Competent Officer, (supra) 'Section 7 only applies to properties other than those which have been vested automatically in the Custodian. Such a vesting cannot be reopened under the central ordinance of the Central Act, for it has already vested there under by a fiction.' thereforee, no declaration that property was evacuee property was necessary under the Act. Notwithstanding the repeal of the earlier laws of automatic vesting the property continued to vest in the Custodian without any action under sec. 7 of the Central A:t. There was no need to take any action under sec. 7. Such action is necessary only in cases where the property had not already vested under the provisions of the repealed ordinance. (Sec Assistant Custodian v. B. K. Agarwala, : 2SCR359 (10).
(13) We cannot agree with the learned judge that sec. 7A of the Act applies to this case and that the vestment was bad because the property was declared evacuee after 7-5-1954. Sec. 7 of the Act does not apply to property which had already vested under State law and which under sec. 8(2) is deemed to be evacuee property. Sec. 7A is in the nature of a proviso to sec. 7 placing limitation on its operation.
(14) The theory of automatic vesting not being in dispute the question remains whether there was any automatic vesting in the present case. The authorities under the evacuee legislation have held that it was a case of automatic vesting. We do not agree. In our opinion there is no evidence whatsoever, slight or substantial, to support the conclusion that the plot of land in question was evacuee property. Two questions will always arise 'in every case where the property is claimed to be evacuee property. These two questions are : 1. Whether a particular person has or has not become an evacuee, and 2. whether the property in dispute belongs to him'. In the present case all that we have is the survey report prepared by the Rent Collector dated 6-4-1963. He was 'told' by Net Ram, appellant No. 2, that this property was owned by the one Hakim Sadiq All Patwari. On this basis it is said that the property had automatically vested. There is nothing to show that the property was owned by Hakim Sadiq Ali. We do not know who this Sadiq All was. Did he own this property All these questions arise. There is no satisfactory evidence on the record that the property was evened by Sadiq Ali and that he migrated to Pakistan in the wake of disturbances following the partition of India.
(15) Merely because Net Ram, a powerful and influential member of municipal committee, told the Rent Collector that the property belonged to Sadiq Ali the property was treated as evacuee property. It was called a 'new discovery', as if something had been unknown which was disclosed to view after a purposive search and investigation. The Assistant Settlement Commissioner paid tribute to Net Ram in his order dated 31-7-64 when he said that he was 'instrumental in detecting the property'. To Net Ram went the ward and credit for 'detection' and 'discovery'. No magic power resides in these two words. The department in substance held that the property was lost and hidden and Net Ram brought it to light. The question is whether such an assumption is justified. Now all that we have is the word of Net Ram. This cannot be accepted as proof. No careful enquiry or intensive investigation was made by the Custodian in the matter. He did not apply his mind at all to the question. There is no adjudication on the question of ownership of the property.
(16) It appears to us that the survey report dated 6-4-1963, on which the whole case of the Custodian is based is a perfectly worthless document. If the authorities under the evacuee legislation do not discharge their duty and live in a world of make believe, the court cannot accept their decision as final. If there is no proped inquiry, adjudication, or investigation that the property is an evacuee property the proceedings must be held to ultra vires. The Custodian must institute an enquiry and determine the evacuee character of a given property. It is not open to him to choose to name any property as evacuee he likes.
(17) Though the survey describes the plot as 'a new discovery' we think it is a misnomer to call' it so. The Custodian merely learnt from Net Ram that the plot was owned by Sadio Ali because the report uses the words 'as told by Net Ram member Mc Illaqa'. Ipse dixit of Net Ram was accepted as the gospel truth. 'Told' means that the Custodian learnt if from Net Ram'. This is what the report says. The Custodian made no enquiry in the matter. He abdicated his function. He effaced his personality. Such a finding of automatic vesting we cannot accept.
(18) Net Ram is the brother of Kundan Lal. He was an infiluential member of the municipal committee. He was on inimical terms with respondents. His brother purchased the property at the auction. thereforee a bald statement by Net Ram that the property belonged to Hakim Sadiq Ali Patwari is no evidence. And f it is evidence it is the worst type of heresay evidence. From an order of the Deputy Commissioner dated 30-10-1964 it appears that Lala applied to the municipal committee Narnaul for sanction to build a house. His building plans were rejected on the ground that the land belonged lo the municipal committee. This shows that even the municipal committee laid claim to this plot. That it was so because of Net Ram's influence we do not know.
(19) We are thereforee of opinion that there is no material on the record whatsoever to hold that there was automatic vesting of this plot in the Custodian. Not a jot or title of independent evidence, either probative or corroborative, is there. This case affords a good example of the well-known ''no evidence rule' of administrative law.
(20) Before giving the Custodian dominion over the property there ought to be a proper enquiry into the question whether the property is evacuee property, that it was owned by a Muslim owner and that the owner left India at the critical time. If Sadiq Ali was not the owner of the property or even if he was the owner but did not migrate to Pakistan in the wake of disturbances there can be no automatic vesting of the property in the Custodian. To hold after 7-5-1954 that the property is evacuee property on the ground of automatic vesting when there is no proof to sustain such a binding is clearly illegal and ultra vires. Such an order is not under the Act. It is outside the' provisions of the Act. It is in excess of jurisdiction the Act confers on the Custodian. Such an order of the authority can be called in question in the civil court. (Rajendra Pratash v. Cyan Chandra, : 3SCR207 (II). So we reach the same conclusion as did the learned judge but by a different route of reasoning.
(21) There is one other question. The learned judge gave a limited relief to the respondents. Though he held that the property cannot be treated as Muslim evacuee property and cannot be taken over by the Custodian he was of the view that the respondents have to establish their title to the property in older to obtain its possession, because he thought that the Custodian had acquired a 'good possessory title' which can only be displaced by a person having a better title. The learned judge said: 'This declaration of the rights or the parties should be sufficient to enable the parties to get their respective rights determined in the civil suit which is even now pending in the court of the Senior Sub-judge, Narnaul.' On this part of the case we do not agree with the learned judge. The suit brought by Kundan Lal must inevitably fail. He has sued for an injunction restraining the respondents from interfering with his possession. The fact remains that the possession remained throughout with the respondents. Kundan Lal, though he was declared a purchaser of the property at the auction sale, was never handed over the possession which remained with the respondents. Once we come to the conclusion, as we do, that the property is not evacuee property it cannot be said that the Custodian has acquired a possessory title to it. The Custodian has neither possession nor title to the plot. Kundan Lal, similarly, will have no title to the plot because he has purchased the interest of the Custodian. The purchaser's interest is derivative. He is the creature of the Custodian. If the Custodian has no right, Kundan Lal has no right. This is perfectly plain.
(22) Kundan Lal's suit is founded on the sale in his favor by the Custodian. The Custodian sold it because it was thought that it was evacuee property which formed part of the compensation pool. If it was not evacuee property it cannot be part of the compensation pool. It could not be sold by the Custo- dian. In view of our finding that Hie property was not evacuee property the suit by Kundan Lal cannot be maintained. The truth is that the fate of the suit depends on the character of the property. If the property is non-evacuee that is the end of the suit. We need not pursue the matter further. The senior Subjudge will decide. He is seized of the suit. We thought it necessary to say what we have because on this part of the case we definitely disagree with the learned judge.
(23) It was said that the respondents do not have locus standi to challenge the action of the Custodian. The learned judge was of the view. He thereforee left the respondents to litigate their title against the Custodian in the pending suit. We cannot assent to this approach. The respondents' locus cannot be disputed because they claim both ownership and possession. They need not establish their better title against the Custodian who is a creature of the statute and who exercises only such powers as the statute confers on him. To say that he has acquired a 'good possessory title' against every one else except the real owner is to equate him' to a wrong doer who takes possession by force or fraud, under no colour of title, no statute, and refuses to hand over possession. See Kura v. Deputy C. G., E. Property, : AIR1974Delhi142 . Once the property is held to be non-evacuee the Custodian completely goes out of the picture. To hold that he has a 'good possessory title' is to give validity to that which is a nullity. 'And theree are no degrees of nullity'. Lord Reid has told us (Anisminic v. Foreign Compensation Commission, (1969) 2 A.C. 147.
(24) For these reasons the appeal is dismissed with costs.