K.S. Lodha, J.
1. Against the order dated October 1, 1973, the unsuccessful petitioner Bishandas has filed this appeal under Section 18 of the Rajasthan High Court Ordinance 1949. The petitioner-appellant filed the writ Petilioner for issuance of appropriate writ, order or direction against ffespondent No. 4 (the Tehsildar Colonisation Tehsil Gharsana Head-quarter Anupgarh), restraining him from proceeding with the case under Section 91 of the Rajasthan Land Revenue Act (No. XV of 1956) and further for a direction not to interfere with the possession of the petitioner-appellant over the land. Certain other reliefs were also sought.
2. For the disposal of this appeal, the material facts are these : Respondent No. 2 (The Managing Officer, Ministry of Rehabilitation) allotted out of the compensation pool, agricultural lands co uprising part of Khasra No. 2 measuring 44 Bighas 10 Biswas in village Jivendesar, Tehsil Anupgarh under Section 20(1)(c) of the Displaced Persons (Compensation rid Rehabilitation) Act (No. XLIV of 1954) (for short 'the Act' herein) in favour of the petitioner's father on April 11, 1963. The order has been submitted and marked as Ex. 1. In para 5 of the writ petition, it was stated that Khasra No. 2 was evacuee property on account of the migration of the Muslims Khatedars of lands to Pakistan after March, 1947 on account of the constitution of the dominions of India and Pakistan and as such it became the evacuee property within the meaning of Section 2(c) of the Bikaner Evacuee (Administration of Property) Order 1948 (hereinafter referred to as the Order of 1948) and also within the meaning of Section 2(f) of the Administration of Evacuee Property Act (No.11 of 1950) which will for the sake of brevity be rtferreu to as the Act of 1950 in terms of the provisions of s 4 of the Order of 1948 and Section 8(2) and Section 2(A) of the Act of 1950. As it was evacuee properly, it vested in the Custodian. The State Agricultural Evacuee Properly was acquired by the Central Government under Section 12 of the Act vide Government of India notification dated April 6, 1955 published in the Gazette of India Part II Section (2) dated April 6 1955 by the Ministry of Rehabilitation, New Delhi. It constituted a part of the compensation pool for the purpose of rehabilitation of displaced persons. The petitioner-appellant was not put in possession. Keptesentations were made for the purpose but they were of no avail. Ultimately the petitioner's father started cultivating the allotted lands. In para 8, the petitioner has mentioned the new rectangular marks of the lands. After the death of the petitioner's father the petitioner continued to be in possession as his successor. The petitioner was prevented from cultivating the land and respondent No. 4 invited applications for its allotment on July 4, 1972. The case of the petitioner is that he is being threatened to be dispossessed and his title is being clouded by the temporary allotment which may be made. He, therefore, tiled the writ petition as aforesaid. No reply was filed on behalf of the respondents. Additional affidavit of Panjuram who is the Mukhtiar of the petitioner was filed making reference of Asaram v. Union of India (SB Civil Writ Petition No. 1632 of 1970. decided on April 24, 1972 and SB Civil Writ Petition No. 164 of 1970). It was stated that the State Government has not denied that the land in question was not evacuee property and, therefore, documents bearing on this question were not filed. In para 5 of the affidavit it was stated that he has learnt that Kalu son of Sadu was the Khatedar of this land who had migrated to Pakistan after March 1947 and, therefore, the land in dispute became evacuee property. Along with the affidavit, copy Misal Bandobast village Jivandesar relating to the year Saravat 2003 was filed. After considering submissions that were made before him, the learned single Judge recorded the following findings:
(i) that the letter of allotment Ex. 1 is not sufficient for establishing that the land which was allotted to the petitioner's father was an evacuee property within the meaning of the Order of 1948 and that it became the evacuee property which subsequently ; vested in the Custodian of the State;
(ii) that while discarding the additional affidavit of the petitioner's Mukhtiar dated September 21, 1973, the learned single Judge opined that this is no evidence to prove that the land in question was an evacuee property and obviously it is a hearsay statement;
(iii) that having regard to the facts and circumstances of the case, Assaram's case(supia) cannot be availed of by the petitioner; and
(iv) that the petitioner's conduct does not appear to be clean and clear and, therefore, he is not entitled to any relief.
In view of the aforesaid findings by order dated October 21, 1973 the writ petition was dismissed. The petitioner filed the appeal as aforesaid on November 7, 1973. Along with the appeal, application under Order XL1, Rule 27 'Bad with Section 151 CPC for allowing the documents to be produced as additional evidence was filed by the learned Counsel for the appellants. Certified copy of the list of Khatas of Muslim evacuees of village Chhatar-jarh, Tehsil Anupgarh which has been entered as Raj land in the Jama and of the Revenue Department (Extract copies of Misal Bandobast of Samvat 2003) was also filed. In that statement name of evacuee Khatedar as been mentioned as Kalu son of Sadu and in the column' for the name the cultivator it is mentioned as 'Khud Kasth', On the basis of the aforesaid list, in the application it has been stated that Khasra No. 2 in question belonged to Kalu son of Sadu and it was an evacuee property and was a part of the compensation pool property. It was prayed that for the of decision of this case, this document may be taken on record as additional evidence. It may be stated that show cause notice was ordered to be issued of the appeal on November 9, 1973. On that very day on behalf of the Union of India, notice was accepted and it was ordered to be listed for admission on November 13, 1973 and thereafter the appeal was admitted on November 13, 1973. The paper-book of the special appeal was prepared and in that the application under Order XII, Rule 27 CPC as well as the copy of the aforesaid list were included. Nothing has been done or behalf of the respondents to controvert the allegations of facts made by the petitioner in the writ petition ; additional affidavit of Panjuram (filed on September 21, 1973) and the facts stated in the application under Order XII Rule 27 CPC submitted along with the appeal on November 7, 1973.
3. We have heard Mr. R.N. Bishnoi learned Counsel for the appellant and Mr. R.N. Calla learned Government Advocate. We have carefully examined the finding of the learned single Judge that the land allotted is not evacuee property. The reason that prevailed with him was that even this tincontroverted averment relating to the averment of evacuee property cannot amount to an admission under Order VIII, Rule 5 C.P.C. and as no other evidence has been placed on record it cannot be found that the lands in quetion are evacuee property. After examining the material on record, 'for proper decision of the appeal, in the interest of justice we consider it proper to admit the list of Khatas as additional evidence. In para 5, the petitioner has made a specific averment that Khasra No. 2 was evacuee property and that it became the evacuee property within the meaning of Section 2(c) ,pf the Order of 1948 and Section 2(f) of the Act of 1950. The averment has also been made that, the State Agricultural Evacuee property was acquired after issuance of a notification under Section 12 of the Act. After the admission of the writ petition until the date of its decision no reply was filed to controvert the averments made in para 5 of the writ petition. The arguments remained part-heard on Septerber 14, 1973. Affidavit dated September 21, 1973 along, with the copy of Misal Bandobast marked as Ex. 2 was filed. The arguments were concluded on September 25, 1973. Even upto thai stage no counter affidavit was filed after the filing of the additional affidavit of Panjuram on 'September 21, 1973. On the basis of the averments made in para 5 of the writ petition which has been supported by the affidavit of the petitioner himself and the additional affidavit of Panjuram, one thing is clear i.e. Khasra No. 2 was evacuee property and this has remained incontroverted. Even from the List of Khatas of Muslim Evacuees of Chhatargarh Tehsil Anupgarh which have been entered as Raj land in Jamabandi of the Revenue Department, Khasra Girdavari and Misal Bandobast of Samvat 2003. It is clear that ii Khasra No.2 measuring 63 Bighas name of Kalu son of Sadu has been showr as evacuee khatedar, and it was his Khudkast land. In the face of the uncoi troverted averments that Khasra No. 2 is evacuee property and the additional affidavit of Panjurara to this effect and the aforesaid List of Khatas it can safely be held that Khasra No. 2 is the evacuee property.
4. The letter Ex. 1 which was issued to the petitioner's father Uttamchand recites Khasra 2/44-10 situated in Chak Jivandesar. In that letter it is mentioned that land under Section 20(1)(c) of the Act is being allotted. 'Compenation Pool' and 'Evacuee Property' have been defined in Section 2(1) and (c) respectively of the Act. Material portion of Section 14 is as followos-
14. Compensation pool. - (1) For the purpose of payment of compensation and rehabilitation grants to displaced persons, there shall be constituted a compensation pool which shall consist of-
(a) all evacuee property acquired under Section 12, including the sale proceeds of any such property and all profits and income accruing from such property:
... ... ...
Compensation Pool amongst others consists of the evacuee property acquired under Section 12 of the Act. Section 12 of the Act empowers the Central Government to acquire evacuee property for rehabilitation of the displaced persons after publication of a notification. Land measuring 44 Bighas 10 Biswas of khasra No.2 was allotted to the petitioner's father under Section 20(1)(c) of the Act. under Section 20(1)(c) of the Act the allotment could be made to the petitioner's father from the property which formed part of the compensation pool. The compensation pool as stated above, amongst others consists of the evacuee property. Even from this point of view there remains no doubt, in ourmind, that land in question (Khasra No. 2) which was allotted to the petitioner's father was the evacuee property. For the aforesaid reasons, we do not find ourselves in agreement with the learned single Judge, when he held that the petitioner-appellant has not been successful in establishing that land in question of Khasra No. 2 is the evacuee property. It follows that it could be alloted to the petitioner's father. We reverse the finding of the learned single Judge in this respect.
5. In view of the conclusion to which we have arrived at, the next question that crops up for our consideration is whether the petitioner-appellant is entitled to an order or direction in terms of what he his prayed for in the writ petition. In State of Rajisthan v. Asaram DB Civil Special Appeal No. 285 of 1972 and 9 other Specials Appeals) and Sohan Lal v. Union of India DB Civil Writ Petition No. 502 of 1974 decided on February 24, 1984 it was held that the tenancy rights of the Mislim occupants of the land became evacuee property and those tenincy rights vested in the Custodian of the Evacuee Property and were acquired by the Central Government and further that those rights then formed part of the compensation pool..Thus, by virtue of the orders of allotment passed by the Managing Officer in favour of the writ petitioners, the tenancy rights in the lands in dispute would accrue in favour of the respective allottees and not Khatedari sights in such lands which could not be acquired by them on account of the provisions of Section 15 A of the Rajasthan Tenancy Act.
The Division Bench further opined that so long as the Managing Officer has lawfully allotted tenancy rights to tin lands in dispute to the writ petitioners in those cases, and the tenancy rights were held by them, the State Government has no right to make allotment of such rights. As a consequence up of that it was held that if any orders of allotment have been made by Managing Officer in respect of the allotted lands the same were without any authority of law and the State Government could not interfere with the management of the evacuee property or properties which formed part of the Compensation pool. We respectfully agree with the reasoning given by the Division Bench in the aforesaid State of Rajasthan's case (supra). As the letter Ex. 1 was made in favour of the petitioner's father Uttamchand and as the petitioner is his successor, no interference can be made by the respondents with the tenancy rights of the petitioner in respect of the land measuring 44 Bighas 10 Biswas of Khasra No. 2 which was allotted by the Managing Officer to the petitioner's father.
6. We, therefore, allow the appeal and set aside the order dated Oct. 21, 1973 of the learned single Judge dismissing the the writ petition filed by the petitioner-appellant. A direction is issued to respondent No. 4 (Tehsildar Colonisation Gharsana) not to proceed with the proceedings under Section 91 of the Rajasthan Land Revenue Act (No. XV of 1956) and the aforesaid respondent is further restrained from interfering with the possession of the petitioner over the land in question of Khasra No. 2 covered by the letter Ex. 1 Respondent No. 4 is further restrained from making any order of allotment; or the land in question (Khasra No. 2) covered by the letter Ex. 1.
7. In the circumstances of the case, the parties are left to bear their own costs.