Ali Naqi and another vs Mst. Noor Ashraf

Bhat, J.—This is a first appeal against the decree of the learned District fudge Srinagar dated 20-12-65 whereby he has dismissed the suit of

the plaintiff-applicants. The plaintiffs brought the suit for possession of 56 kanals and 15 marlas of land in Khewat Nos. 77/46 min and 66 min

situate in Bhagat Barzala Badgam with the allegation that the land belonged to them and was in their possession. Raja Mohd. Afzal Khan, who was

the Governor of Kashmir' in samvat year 1991, wanted to grab the suit property. The plaintiffs had just attained their age of majority and did not

know how to safeguard their interests. Under undue pressure and with improper use of his official position Raja Afzal Khan who was defendant 2

in the case exercised fraud and undue influence over the plaintiffs and got this land transferred in favour of defendant 1 who was his brother's wife

in exchange of 55 ks. and 15 ms. of land situate in village Rabitar Tehsil Khas. The mutations of exchange were got attested. As the transactions

were fraudulent and the mutations merely paper transactions, the plaintiffs were still the owners of the land. The so called exchanges were not

regular or according to law and therefore the whole transaction of the so called exchanges was void

The suit had a chequered career. It was first brought in the Court of the City Judge Srinagar. It was returned by him because the valuation was

Rs. 1,13200/- The plaint was then presented to the High Court which ultimately transferred it to the District Judge Srinagar who decided the case

as indicated above.

The suit was in forma pauperis.

It appears the defendants in the suit had migrated to Pakistan. An application was made under Sec. 35 of the Administration of Evacuees'

(Property) Act (hereinafter to be referred to as the Act) to make the Custodian E. P., a party to the proceedings. The Custodian appeared. He

contested the suit and filed the written statement on 11th Bhadon 2009 (Bikrami) The Custodian took the following pleas: There was a valid

exchange of land between the plaintiff and defendant 1. The plaintiffs had taken possession of the land in Rabitar which they got in exchange for the

suit land. Proper mutations were attested. There was no undue influence or misuse of official position by Raja Afazal Khan in getting this exchange

effected. The suit was not maintainable. The suit was time-barred. The suit was brought only to fling mud at Raja Afazal Khan. The plaintiffs were

estopped from bringing the suit. It was further averred in the written statement that the plaintiffs should sue for the canclleation of the exchange. The

defendants were in possession of the land. They had effected improvements worth more than Rupees fifty thousand. When the plaintiffs found their

erstwhile land having improved considerably they were prompted to file this vexatious suit.

The following issues were framed by the trial Court:

Whether on 11th Phagon 1991 exchange of property in dispute (45 kanals and 15 marlas) was cot effected by Raja Mohd. Afzal Khan in

favour of Noor Ashraf Begum by deceiving the plaintiffs and therefore mutation and exchange of this land was void and not binding on the plaintiff?

OPP.

Whether exchange of this land was against Land Alienation Act and not binding on the plaintiffs? OPP.

Whether defendants were in possession of land in dispute since Phagon 1991, but in spite of this exchange being fraudulent and against law, was

not binding on the plaintiffs? OPP

Whether registration of the deed of exchange was essential and whether because the document was not a registered one, it was not binding on

the plaintiffs? OPP.

Whether the exchange was in essence a sale, but this fact was hidden and was shown as an exchange? What effect has it on the suit? OPP.

Whether the plaintiffs were in possession of the suit land even though mutation had been effected in the name of defendant 1? OPP.

Whether at the time of exchange the plaintiffs were majors and had by their free will and consent effected exchange of property and were

estopped from questioning the validity of this transaction? OPDs.

Whether the suit in its present form was not maintainable and whether it was obligatory for the plaintiffs to sue for cancellation of the exchange?

OPDs.

Whether the suit was time barred? OPDs.

Relief.

The plaintiffs examined Mohd. Sodagar, Habib Bhat, Ghulam Mustafa Ram Chand, Sham Lai Patwari, Ghulam Ali. Ram Chand was examined

twice. Some documents were also put in. The Custodian did not produce any evidence. Later an application was presented on behalf of the

Custodian on 15-5-65 wherein it was stated that Raja Afzal Khan and Nur Ashraf had migrated to Pakistan. Raja Afzal Khan had died in

Pakistan. His son also lived in Pakistan and they were evacuees. The jurisdiction of the civil Court was barred to hear the suit. An additional issue

was suggested in the following form:

Whether the Court had no power to hear the suit?

This application was resisted by the plaintiffs. It seems no additional issue was framed, but arguments were heard on this aspect of the case. The

trial Court took up this very objection first of all and came to the conclusion that the civil Court had no jurisdiction to hear the case and therefore

the case should be dismissed, but it returned a finding on all the issues framed in the case. Issue 1 was decided in favour of the plaintiff. Issues 2, 4

and 5 were also decided in favour of the plaintiff. Issues 3 and 6 were thought unnecessary. Issue 7 was decided in favour of the plaintiffs. Issue 8

was also decided in favour of the plaintiffs. Issue 9 relating to the limitation was also decided in favour of the plaintiffs. As the suit was held to be

not cognizable by a civil Court, it was ultimately dismissed.

In this appeal the learned counsel for the respondent tried to support the judgment of the trial Court on the finding recorded by it on the issue of

jurisdiction The learned counsel for the appellant, however, contended that the judgment of the trial Court on this issue was erroneous. The matter

involved in this case was a question of title to the property. The property was not evacuees' property; it did not vest in the Custodian at all under

law. The proper forum to determine the right or the absence of right to this property of the so-called evacuee was the civil Court and hence this

finding of the trial Court was incorrect. In his support the learned counsel for the plaintiffs referred to the following authorities:

Khalil Ahamad Khan Vs. Malka Mehar Nigar Begum and Others, ; Ram Gopal Vs. Banta Singh and Others, ; Mst. Jafran Begum Vs. Custodian

Evacuee Property, Punjab and Others, ; M.B. Namazi Vs. Deputy Custodian of Evacuee Property and Others, ; Sat Narain Beli Ram Vs.

Custodian Evacuee Property, Jullundur and Another, and Ram Gopal Reddy Vs. Additional Custodian Evacuee Property, Hyderabad, . was also

referred to me by the learned counsel for the appellant.

The learned counsel for the respondent referred to the provisions of the Act and to Amtubai Kamruddin Vs. Daudbhai Akbarali and Others,

and AIR 1953 Hyd 157.

As the point of jurisdiction of a civil Court is an important point which has been raised in this case and may come up for adjudication in other

cases, we have thought it necessary to discuss the position of law, though strictly speaking the question of ousting the jurisdiction of the civil Court

in this case does not at all arise. It will be recalled that the suit as ultimately framed was presented in this Court on 16-10-1946. The purport of the

plaint was that the land measuring 56 ks. and 12 ms. situate in Bagat Barzalla had been fraudulently sought to be exchanged with 55 kanals in

Rabitar Tehsil Khas belonging to defendant 1. The exchange was got effected through the exercise of undue influence and official pressure by

defendant 2 Raja Afzal Khan when he was the Governor of Kashmir. During the pendency of the suit or rather this application in forma pauperis,

the State of Pakistan was created. Our State enacted a law known as the Administration of Evacuees' Property Act (6 of 2006) (Supra). In this

Act provision was made for vesting of the property of an evacuee in the Custodian. Evacuees were defined in the Act under Ss. 2 and 2-C and

evacuee property was defined in the same section as any property in which an evacuee has any right or interest, and includes any property which

has been obtained by any person from an evacuee after 14th day of August 1947 by any mode of transfer unless such transfer has been confirmed

by the Custodian....

This Act came into force on 5th December 1949. Ordinarily only that property could vest in the Custodian which was the property of an

evacuee on the date of the promulgation of the Act. For the sake of argument - it is not otherwise also denied - both Nur Ashraf and Raja Afzal

Khan are evacuees within the definition of this Act. Under Sec. 5 of the Act all evacuee property situate in the State shall be deemed to have

vested in the Custodian, from various dates as contained in Clauses (a), (b) and (c) of sub-section (1) of this section. Clause (a) places the date as

the date on which a person leaves or left any place in the State for any place outside the territory now forming part of India, so on and so forth. u/s

6 of the same Act, the Custodian has to notify either by publication in the Government Gazette or in any other prescribed manner the evacuee

properties which have vested in him under this Act. Under Sec. 7 he has the power to take possession of the evacuee property. Section 8 is

important and it says that any person who claims any right to or interest in any property which has been notified under Sec. 6 as evacuee property

or in respect of which a demand requiring surrender of possession has been made by the Custodian under Sec. 6 can lay claim to the property

requesting the Custodian to hold that the property is not evacuee property. Sub-section (2) of this section gives a limitation of 30 days for making

such an application from the date on which the notification was issued or demand requiring surrender of possession was made by the Custodian.

On receiving an application under sub-sec. (2), the Custodian shall hold a summary enquiry and take such evidence as may be produced and pass

an order stating the reasons therefor, either rejecting the application or allowing it wholly or in part. An appeal against this order is provided under

Sec. 30 of the same Act and a power of revision also is vested in the Custodian General.

To see whether the objection of the respondent that the civil Court has no jurisdiction to hear the suit as held by the District Judge is valid, it

has to be seen whether the formalities as required by the scheme of the Act have been observed or not. In the first place it is admitted by the

parties that there was no notification with regard to this property declaring it to be an evacuee property by the Custodian under Sec. 6 Section 35

of the Act enjoins upon a civil or a revenue Court to give a notice to the Custodian Sub-sec. (2) of this section gives the power to the Court to add

the Custodian as a party to the suit or the proceedings, if it thinks that such an addition is necessary for the proper or a satisfactory determination

of the suit or the proceeding.

The Custodian became a party in terms of this section and he filed a written statement in the suit. Issues were struck and evidence was led by

the plaintiffs. The reference to Section 8 of the Act is uncalled for because a person has to lay claim to any right or interest in such property, when

it has been notified as an evacuee property or in respect of which a demand requiring surrender of possession has been made by the Custodian. It

was neither notified nor was any demand requiring surrender of possession ever made by the Custodian. Therefore the suit cannot fall under Sec.

31 which will be discussed later on.

During the proceedings before the trial Court no specific plea was raised that the property had vested in the Custodian or that the Custodian

had adjudicated upon the property as belonging to the evacuees or that he had made an inquiry or considered the claim of the appellant. All that

was done towards the fag-end of the case was to put an application before the Custodian on 15-5-65. In this application the only objection taken

was that the civil Court was not competent to hear this case as the owners of the property were evacuees. Therefore an issue should be added. If

this argument of the learned counsel for the respondent were upheld, it would mean that a mere assertion on the part of the Custodian about the

merits of the claim of the plaintiffs would be taken as a finding given by him under the Act. The Custodian nowhere inquired into the claim nor did

he notify the property as evacuee property, but when notice under Sec. 35 was given to him he put in a written statement controverting the

allegations contained in the plaint. This attitude on the part of the Custodian can never amount to a decision of the Custodian on the matters

pertaining to the right of the so-called evacuee to the property and a determination of the same so as to oust the jurisdiction of a civil Court.

As a matter of fact the litigation had started much before the Act was passed or enforced and much earlier than the two defendants in the suit had

migrated to Pakistan. There was no such law when the suit was instituted. The defendants in the suit were contesting it in their individual capacity.

When they left for Pakistan, the Custodian stepped into their shoes and tried to defend it as they would have done.

As the suit had been instituted much before the coming into force of the Act, the suit cannot be held to be barred by the provisions of this Act and

the jurisdiction of the Civil Court could not be taken away. Therefore, strictly speaking, the consideration of the implications of Sec. 31 of the Act

does not arise in this case, but as already remarked, the matter of the interpretation of this section comes up before Civil Courts very often and

therefore we have thought it necessary to discuss this point in some detail.

There are authorities of the Indian High Courts some of them Full Bench decisions which lay down that when the question of title is involved

with respect to some property, it can be decided only by a Civil Court and the Custodian is not the Judge of such matters. These authorities are:

Ram Gopal Vs. Banta Singh and Others, ; M.B. Namazi Vs. Deputy Custodian of Evacuee Property and Others, ; Khalil Ahamad Khan Vs.

Malka Mehar Nigar Begum and Others, and Mst. Jafran Begum Vs. Custodian Evacuee Property, Punjab and Others, .

The relevant section in the State Act is Sec. 31 which reads as under:

Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction:

(i) to entertain, or adjudicate upon any question whether any property is or is not evacuee property or whether an evacuee has or has not any right

or interest in any evacuee property; or

(ii) to question the legality of any action taken by the Custodian General or the Custodian under this Act;

(iii) in respect of any matter which the Custodian General or the Custodian is empowered by or under this Act to determine.

The corresponding Section in the Central Act is Sec. 46 which reads:

Save as otherwise expressly provided in this Act no civil or revenue Court shall have jurisdiction:

(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or

(c) to question the legality of any action taken by the Custodian General or the Custodian under the Act; or

(d) in respect of any matter which the Custodian General or the Custodian is empowered by under this Act to determine'.

After comparing the two sections we feel that the purport and the substance of both the sections is the same, but the learned counsel for the

respondent has tried to distinguish the Indian law from the State law on the ground that under the Indian Law before any property is declared as

evacuee property, it is necessary for the Custodian to give a notice to the person interested and after holding such inquiry in the matter as the

circumstances of the case permit, pass an order declaring any such property to be evacuee property. According to him when the Custodian is of

the opinion that any property is evacuee property, he may give notice as indicated above. There is no section like Sec. 8 of the State Act in the

Central Act. Section 8 of the State Act says that any person claiming any right to, or interest in, any property which has been notified as evacuee

property has to put in an application within a prescribed period praying that the property is not evacuee property or that his interests in the

property have not been affected by the provisions of this Act. The learned counsel suggested that the Custodian has to make an inquiry and then

adjudicate upon the matter whether any property is evacuee property or whether the claim of any person to such property has to be accepted or

rejected. After the Custodian gives his finding that finding cannot be challenged by any Civil Court. Emphasis is laid on sub-sections (i) and (iii) of

Sec. 31 of the Act. We shall examine the implications of this bar further, but before doing that we would like to point out that in substance Section

7 of the Central Act and Sec. 8 of the State Act are the same. In the State the Custodian has to notify the property as evacuee property, either by

notifying it in the gazette or in such manner as may be prescribed When once this notification is made, the person claiming any interest or right in the

property has to prefer his claim. In Sec. 7 of the Indian Act before a Custodian passes an order declaring any property to be evacuee property, he

has to cause a notice thereof to be given in the prescribed form to the person interested and he has to hold an inquiry in the matter as the

circumstances of the case permit. So the only difference is that in the State Act the notification may come earlier and the inquiry later, whereas in

the Central Act the declaration whether any property is evacuee or not has to be made after notice to the interested persons and after holding

inquiry. Holding of an inquiry is compulsory under both the Acts and then the order of the Custodian whether any property is or is not evacuee

property becomes a finding and may be binding. According to the learned counsel this finding cannot be challenged in a Civil Court.

Before we examine that aspect of the argument, one more matter which was argued before us has to be taken notice of. When it was pointed

out to the learned counsel for the respondent that the Custodian had not notified the property as required by Sec. 6 or had not asked anybody to

surrender possession of the same, Section 8 could not come into action at all. his reply was that it was not obligatory for the Custodian to publish

the property either in the Gazette or in the manner prescribed by the rules. It was discretionary with the Custodian to make a publication or

demand possession of the same. He laid emphasis on the word 'may'. In our opinion this is not a correct interpretation of the section. The word

'may' here has the force of 'must'. What it connotes is that the Custodian can have recourse to two modes of notifying the property; either he has to

publish it in the Gazette or he has to publish it in some recognized manner as laid down in the rules. The Custodian may in his private chambers be

of the opinion that some property is evacuee property; he may even record this opinion on some paper or maintain some other record which is not

amenable to the public. The public is not expected to know the mind of the Custodian as indicated in his private note or diary, and after such a

notice is made by the Custodian, nobody can be expected to claim the property and deprived of the same if the claim is not made within 20 days

of his noting down as indicated above. This can never be the intention of the law nor is such an interpretation at all reasonable and consistent with

any norm of justice and fairplay. Therefore this argument of the learned counsel for the respondent is devoid of force.

Now before discussing the authorities mentioned above, let us examine the language of the Act. Section 8 (3) lays down the procedure to be

adopted after a claim is preferred to some property which has been notified as evacuee property. Under sub-sec. (2) the Custodian shall hold a

summary inquiry"" in the prescribed manner after taking such evidence as may be produced and pass an order stating the reasons therefor, either

rejecting the application or allowing it wholly or in part. It is significant to note that the inquiry contemplated is at best and at the most a summary

inquiry. It is not a complete inquiry and it would be against the basic notions of justice if on some summary inquiry the title to the property which is

alleged to be evacuee property were to be finally and for all time to be determined. The language of Section 31 of the State Act as well as of Sec.

46 of the Central Act is similar. On a prima facie reading of these sections it would appear that some adjudication with respect to any property

holding it to be or not to be evacuee property cannot be questioned in a Civil Court. Further the language of CI. (iii) of this section would indicate

that it is not matters which have been expressly decided by the Custodian or the Custodian General that cannot be agitated in the Civil Court, but

other matters also which this officer or officers are empowered to determine cannot be questioned in a Civil Court. In other words this clause

constructively bars the jurisdiction of the Civil Court.

But the established rule of interpretation of statutes is that a rational interpretation should be put on the various provisions of an enactment and

different provisions of the Act should be so construed as to lead to an harmonious interpretation of a particular enactment. As was pointed out the

scope of an inquiry before the Custodian is at best of a summary nature and therefore as in other enactments a summary inquiry does not preclude

a full fledged inquiry about the title involved in certain property; similarly the object of Section 31 of the Act seems to be that apparently the finding

of a Custodian that any property is or is not evacuee property should not be challenged by a Civil Court, but reading Sec. 8 (3) and Sec. 31 of the

Act together it would lead to the inference that where the title to any property is in controversy, that jurisdiction is and as always vested in the civil

Court. It is on the basis of this interpretation that various Full Bench and D.B. authorities of the Indian High Courts have laid down the law. The

ratio decidendi of those cases is exactly the same as we have arrived at after examining the provisions of the State Act for ourselves. We may add

here that both Sec. 31 of the State Act and Sec. 46 of the Central Act begin with the words; 'save as otherwise expressly provided in this Act'.

This clearly connotes that the inquiry contemplated under this Act in regard to title is at best a summary inquiry and not a complete adjudication of

the same.

We may now begin with the Full Bench authorities. The latest is Mst. Jafran Begum Vs. Custodian Evacuee Property, Punjab and Others, . In

this authority a Full Bench of the Punjab High Court has laid down:

When any question arises whether any property is or is not evacuee property, two matters have to be considered (1) whether a particular person

has or has not become an evacuee and (2) whether the property in dispute belongs to him The first question almost invariably a question of fact is

to be determined finally by the Custodian and the civil Courts have nothing to do with it. The second question however may involve a simple

question of fact or a complicated question of law or a question of title.

In this case it was further held that the determination of the question of title to the property by the Custodian is not final and the question can be

reopened in a Civil Court.

In this case the plaintiff who was not an evacuee claimed title to a house declared as evacuee property on the basis of a will executed by her

husband and the claim involved a question as to the validity of the will according to the Muhammadan Law. On these facts it was held that the

determination of that question by the authorities under the Act is not final and the jurisdiction of the Civil Court is not barred by Sec. 46.

In another Full Bench authority, Khalil Ahamad Khan Vs. Malka Mehar Nigar Begum and Others, it was held:

Where the Custodian has not given any notice as prescribed in Sec. 7, he has no jurisdiction to determine whether the property in dispute is or is

not evacuee property.

In a case of dispute, whether the property has vested in the Custodian it is the Civil Court which must determine the question as the Act does

not give the Custodian the power to determine such a question. Therefore in such a case Clauses (a) and (d) of Sec. 46 do not bar the jurisdiction

of the Civil Court.

In M.B. Namazi Vs. Deputy Custodian of Evacuee Property and Others, , it has been held that if any property belongs to a person who has

been declared to be an evacuee within the meaning of the definition in the ordinance, then the Custodian's order would be final. But if someone else

says that the property does not belong to the evacuee but belongs to himself who is not an evacuee the order of the custodian is not final.

The same can be easily inferred from the latest Supreme Court authority, Ram Gopal Reddy Vs. Additional Custodian Evacuee Property,

Hyderabad, . It fays down:

Where the property or any right to or interest in any property undoubtedly belonged to the evacuee and any transferee from the evacuee claims the

property or any right to or interest therein he has to avail of the remedies provided under the Act. If he fails to do so he cannot file a suit in the civil

or revenue court to have the question whether any property or any right to or any interest therein is or not evacuee property decided in view of the

clear provisions of S. 46 (a) of the Act.

In para 4 of their Judgment their Lordships have said:

It is unnecessary to consider the cases cited at the bar on behalf of the appellant for whatever may be the position of law whether the title of the

evacuee himself is in dispute, as to which we express no opinion there can be no doubt that where the property admittedly belonged to the evacuee

and the person filing the suit claims to be transferee from the evacuee, the suit would certainly be barred in view of S. 46 of the Act.

S. 31 also uses the expression 'save as otherwise provided in the Act.'

The other authorities Sat Narain Beli Ram Vs. Custodian Evacuee Property, Jullundur and Another, and Ram Gopal Vs. Banta Singh and

Others, are also to the same effect and need not be quoted in extenso. We are therefore of the opinion that the ground of dismissing the suit

mentioned in the order of the learned District Judge is not tenable and we do not agree with him.