Kashmir Singh vs Baderdin deceased through his L.Rs. Kamal Din and Others

A.L. Vaidya, J.—Badardin deceased Respondent preferred a suit against the present Appellant and proforma Respondents for declaration to the effect that the suit land, as described in the plaint, was owned and possessed by him as HISSEDAR and that the Defendants had no right, title or interest- in the said land. The Plaintiff, as a consequential relief, asked for permanent injunction restraining the Defendants from interfering in the Plaintiff''s possession over the suit land. In the alternative a decree for possession of the suit land was asked for.

According to the Plaintiff, he has been in exclusive possession of the suit land as owner in HISSEDARI possession and the Defendants were alleged to have procured some wrong entries in the records of rights qua the suit land in their favour behind the back of the Plaintiff and on the basis there of they were threatening to interfere in Plaintiff''s possession over the suit land. The Defendants right or interest in the suit land was denied.

The Defendants contested the suit and pleaded that the entries in the records of rights showed them to be owners in cultivating possession of the suit property which entries were legal, valid and binding. The Defendants took a specific plea that the Central Government had declared the suit property as evacuee property as described in SANAD TAQSIM ARAZI and thereafter the land was allotted, through allotment number K.G. 4/10 dated 28th July,1955 in favour of Khazana, predecessor-in-interest of the Defendants, who died on 19th April, 1959 leaving them behind as his successors.

The parties were put to trial on the following issues by the trial Court:

Whether the Plaintiff is owner in possession of the suit land, as HISSEDAR? OPP

Whether the suit property has been declared as evacuee property by the Government and has been allotted to the Defendants, as alleged? OPD

Relief.

Issue No. 1 was decided against the Plaintiff and he was held not to be the owner of the suit land while Issue No. 2 was answered in the affirmative and the suit property was held to be evacuee property, duly allotted to the Defendants, and consequently the suit was dismissed.

The Plaintiff assailed the aforesaid judgment and decree passed by the trial Court before the first appellate Court which, after hearing the parties, set-aside the judgment and decree, under appeal and decree the suit of the Plaintiff for declaration and consequently for permanent injunction, as prayed for by him.

The aforesaid judgment and decree passed by the first appellate Court have been assailed in the present appeal on various pleas.

I have heard the learned Counsel for the parties and have also gone through the records.

It may be very specifically pointed out that the Defendants did not raise specifically the plea that the civil Court has got no jurisdiction to try and decide the suit of present nature wherein the property already declared as an evacuee property could not be made the subject-matter of a civil suit. It has been submitted with force not only before the first appellate Court but before this Court also that the civil Court has got no jurisdiction to entertain and decide the suit of the present nature as there was a specific bar in this behalf u/s 46 of the Administration of Evacuee Property Act, 1950 (herein after to be called as "the Act"). It is not so simple a matter as has been argued on behalf of the Appellant.

Needless to say, at the initial stage .of the trial the averments made in the plaint solely have to be looked into to decide the question of jurisdiction of the Court. Section 9 of the CPC envisages that ''the Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.''

The suit, as framed by the Plaintiff, and as detailed above, is a suit for declaration and permanent injunction and as an alternative relief decree for possession has been asked for. On the basis of allegations made in the plaint, if those averments are presumed to be correct, the relief asked for can be granted by a civil Court and by no other forum. Altogether, it is a different, aspect that on the objection of the Defendants; this aspect of the matter of jurisdiction can be1 decided and taken note of in case it is proved on record not only factually but legally that the relief asked for cannot be granted by a civil; Court the jurisdiction of which has been expressly or impliedly barred. According to the Defendant-Appellant, Section 46 of the Act has to play an important part in determination of jurisdiction of the civil Court. For the sake of convenience Section 46 of the Act is being reproduced herein below:

Jurisdiction of civil Courts barred in certain matters-Save as otherwise expressly provided in the 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

(b) (omitted)

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

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

On the strength of the aforesaid provision of law it has been argued that in the present suit the property in dispute has been declared as an evacuee property and, as such, civil Court''s jurisdiction is barred to entertain or adjudicate upon any question whether this property or any right to or interest in the said property is or is not evacuee property. It is correct that the aforesaid provisions of Section 46 of the Act are self-explanatory. It has further been submitted that the only remedy to question any interest in an evacuee property by any party could be availed of under the writ jurisdiction of the High Court under Article 226 of the Constitution of India and not by way of civil suit.

There is no dispute to the proposition that the evacuee property under the provisions of the Act has to be declared in accordance with the various provisions of the Act. In this behalf Section 7 of the Act deals with issuance of notification of evacuee property while Section 7A deals with the property not to be declared evacuee property on or after 7th day of Hay,1954. Thereafter, u/s 8 it has been provided that the evacuee property shall vest in the Custodian and how it is to be dealt with.

There is unanimity to the proposition that in case the property has been declared as evacuee property under the provisions of the Act in that event Section 46 there of will come in to picture. But this provision will not bar the jurisdiction of the civil Court where the; Custodian has never declared the property as; evacuee property, after taking proceedings u/s 7 of the Act. Unless and until the| authorities acted under the provisions of the Act in declaring the subject-matter of the suit to be evacuee property Section 46 shall have no applicability at all.

It has been contended on behalf of the Appellant that even if the suit property is not held to have been declared evacuee property under the provisions of the Act but it was so considered while being allotted in favour of the Defendants, in that event also the void action of the authorities unless and until set-aside by a competent Court that shall still continue to exist, more so when, as has happened in the present case, the suit property has been considered as evacuee property and was allotted to the Defendants, as such. I think such a plea has to be rejected on the sole ground that as per averments made in the plaint the case of the Plaintiff has been that he has been in actual occupation of the suit land in HISSEDARI possession as an owner and continues to be so. If it was so, there was absolutely no occasion for the Plaintiff to have asked for assailing the order of allotment or some implied order of declaring the property in dispute as an evacuee property. His simple case has been that he was owner in possession as a title holder and the names of the Defendants have been manipulated to be recorded in the revenue record which was factually wrong. The Plaintiff is coming on the basis of title for declaration and injunction and in the alternative for possession also on the basis of title. In this view of the matter the submission put forth on behalf of the Appellant does not hold good especially when a party can only approach the Court when the rights of ownership and possession are threatened to be infringed.

It may be referred here that brother Devinder Gupta, J. who was at one time hearing this appeal, passed a detailed order on 23rd September, 1993 and referred the following question for adjudication by the Custodian of the Evacuee Property:

Whether the suit property or any part there of wasor was not an evacuee property, as defined under the Administration of Evacuee Property Act, 1950?

It was directed by brother Gupta J. that the aforementioned point will be decided by the Custodian of the Evacuee Property or by the Chief Settlement Commissioner, Himachal Pradesh, after affording due opportunity to both the parties in accordance with law.

The Custodian of the Evacuee Property, vide order dated 28th September, 1994, after giving reasonings returned the aforesaid reference with the following observations:

The specific question referred by the Hon''ble High Court, for adjudication by the undersigned, has been framed as follows:

Whether the suit property or any part there of was or was not an evacuee property, as defined under the Act.

Thus the matter to be determined is not whether the suit property was ever notified as evacuee property, nor is to be determined whether, if notified, it was correctly or incorrectly notified, but rather whether the suit property is an evacuee property as defined under the Administration of Evacuee Property Act, 1950.

Evacuee Property" is defined u/s 2(f) of the Act.

An "evacuee" is decided u/s 2(d) of the Act and "property" is defined u/s 2(i) of the Act.

The suit property is described in the order of the Hon''ble High Court as a piece of land "measuring 27 kanals 11 marlas entered in Khewat No. 13 min, Khatauni No. 53 min comprised in Khasra No. 5 647/321 and 648/321 min as per the jamabandi for the year 1968-69 situate in Gharbasra in Tappa Thara, Tehsil and District Una. "Thus it falls within the definition of "property" as defined under the Act.

Then the question that remains to be determined is whether it is an evacuee property i.e. whether it is the property of an "evacuee".

I have heard the learned Counsel for the Respondents. Despite repeated summons neither Shri Kashmir Singh nor his Counsel presented themselves. I have gone through all the records produced before me, including the relevant Jamabandis for Mohal Gharbasra (Hadbast No. 10), Tehsil Hamirpur (now Teh. Bangana) District Kangra (now Distt. Una), for the year 1943-44, 1951-52 and 1955-56. I have also carefully examined the Resettlement (R) File No. 9 which contains the allotment order K.G.4/10 whereby 2-6 1/4 standard acres of land were allotted to Shri Khajana s/o Chaudhury. This file also contains a list (Farist Numbrann Khasra Arazi Matruka, Tehsil Hamirpur, Distt. Kangra) of Khasra Nos. declared as "Matruka". This list (Farist includes the Khasra Nos. involved in the suit property.

The N.T.(Sales) appearing on behalf of the department, pointed out that the Urdu word "Matruka" when used in such documents, referred to evacuee property.

In this list a piece of land comprised in Khasra No. 321/1 measuring 31 Kanals and 11 marlas is included. This land is split into two parts under the column "Rakba as 4 Kanals (Barani awwal) and 27 Kanals and 11 marlas (Kharhettar). In the Kaifiyat (remarks) column is the entry "Hissa". The Id. Counsel for the Respondent pointed out that the piece of land measuring 27 kanals and 11 marlas is the suit, property and that in view of this entry, it is clear that only 2/3rd (two third) part of this land had been declared as evacuee property.

However, as discussed earlier, the matter to be decided is not whether the suit property (or some part there of) was declared/notified as evacuee property [ but, rather, whether it comes under the definition of evacuee property or not.

In the relevant Jamabandi for 1943-44 under Khewat No. 50 min, Khatauni Nos. 158, 159 and 160 min comprised in khasra Nos. 321 min, 321 min and 321 min (3 parts of Khasra No. 321) the total land included measured 31 kanals 11 marlas, of which 27 kanals 11 marlas is recorded as "Kharhettar" and 4 kanals as "Barani ek phasli". The land is recorded as "Shamlat Tika Hasab Rasad Malguzari" with Gohru, [[Badardin and Fazalidin in possession of 1/3 (one third) share each. In the relevant Jamabandi for the year 1951-52 under Khewat No. 46 min, Khatauni No. 86 comprised in khasra Nos. 647/321 and 648/321 the total land included is 27 kanals 11 marlas. The land is again recorded as Shamlat Tika Hasab Rasad Malguzari", in the possession of Badardin "Hissadar". A similar entry is recorded with respect 648/321 in the relevant jamabandi for the year 1955-56.

Thus, the presumption is that Badardin was in India as late as 1955-56 and, therefore, was not an "evacuee" as defined under the Act. Since he was not an evacuee his property does not fall under the definition of "evacuee property

I find, that of the suit land measuring 27 kanals 11 marlas, comprised in khasra Nos. 647/321 and 648/321 under Khewat No mm. and Khatauni No. 84 as recorded in the Jamabandi for Mohal Gharbasra (Hadbast No. 10), Tehsil Hamirpur (now Tehsil Bangana), Distt. Kangra (now District Una) for the year 1955-56, 1/3 (one third) part is not evacuee property as defined under the Act. This land can also be traced from the relevant Jamabandi for the year 1951-52 under Khewat No. 46 mm and Khatauni No. 86. Alternately this 1/3 (one third) part, which does not fall under the definition of "evacuee property" can be traced from the relevant Jamabandi of 1943-44 as the piece of land measuring 9 Kanals 3 marlas (Kharhettar), under Khewat No. 50 mm, Khatauni No. 159 mm, and comprised in Khasra No. 321 mm, which is recorded as being cultivated by Badardin.

The suit property, as per report of the Custodian of Evacuee Property, has not been found to be an evacuee property under the provisions of the Act so far as Badardin is concerned who has been held not to be an evacuee. Regarding other shares, the report does not say anything specifically.

The aforesaid findings have again been assailed on behalf of the Appellant during the course of arguments. It has been contended that this report has to be ignored in as much as there was sufficient material on record to prove that the entire property in dispute had already been declared as evacuee property.

Apart from the report of the Custodian of the Evacuee Property, referred to above, some documentary evidence has been examined by the parties during the trial of the suit which is also required to be appreciated.

The Plaintiff has brought on record the entries in the record of rights. Ex. P4, Ex. P5 and Ex. P6 are not the copies of Jamabandis for the years 1943-44, 1951-52 and 1955-56 respectively. The suit land in the column of ownership is shown to be owned by Shamlat Tikka Hasab Rasad Malguzari (in proportion to land revenue) but shown in the actual cultivation of Badardin Hissedar, who was the Plaintiff in the present suit. The next Jamabandi brought on record is for the year 1963-64 Ex. Dl) wherein the property in suit is shown to be exclusively in the ownership and possession of the Defendant-Appellant. This entry has been repeated in Ex. D2, copy of Jamabandi for the year 1968-69, Ex. D3, copy of Jamabandi for 1973-74. Ex. D4 is the copy of report Roznamcha Wagyati No. 17 dated 16th September, 1958, by virtue of which effect has been given in the revenue records to Sanad Takseem Arazi Ex. DS by showing the Defendant-Appellant as owner in possession and by deleting the name of Badar Din from the column of cultivation and also by deleting the name of Shamlat Tikka Hasab Rasad Malguzari. This entry nowhere reflected that at that relevant time in the revenue records the property in dispute was shown to have vested in the Central Government or with the Custodian of Evacuee Property. This Ex. D5 is a letter of allotment (Sanad Takseem Arazi Matruka) which in fact says that by allotment order No. K-G. 4/10 dated 28th July, 1955, property mentioned therein was allotted in favour of Khazana son of Shri Chaudhary. Ex .D7 is the Sanad in Form I, which recites that as per Sanad Takseem Araji Matruka No. K.G. 4/10 property has been allotted to Khazana son of Chaudhary, who had died leaving behind his widow Sarbi Devi etc, therefore, Sanad in their favour was being issued in the name of the President of India as by virtue of Notification of the Government of India in the Ministry of Rehabilitation No. S-III.19(44)54-1 dated 24th March, 1955, the Central Government has acquired an evacuee property described in the Sanad Takseem u/s 12 of the Act.

Ex. D8 is the copy of Khasra Girdwari from October 1974 to October 1975 wherein sons of Badar Din have been recorded to be in actual occupation of the suit land on payment of Rs. 25/- as rent. This change was effected in October 1975. Same is the entry in Ex. D9 copy of Khasra Girdwari from 1975 to 1977.

That means in the records of rights earlier the Plaintiff has been recorded in actual occupation as Hissedar over the suit land but in between the Defendant-Appellant was recorded in occupation as owner on the ba4sis of some allotment referred to earlier and thereafter actual occupation had been recorded to be that of the sons of the Plaintiff.

Admittedly, no notification under the Act has been brought to the notice of the Court whereby the suit land had been declared as evacuee property. Only the reference in allotment order, referred to above, was there. Needless to say, without there being any declaration under the Act, declaring the property in dispute to be evacuee property it could not be taken as an evacuee property and allotted in favour of any person. Moreover, in the present case, as discussed above, there has been the report of the Custodian also whereby it has been very specifically reported that Badardin was net an evacuee and property in dispute was not declared as evacuee property. This report has to be favourably considered especially when no document declaring this property as evacuee property under the provisions of the Act has been brought on record or even referred.

There is evidence on record that the Plaintiff, along with his other two brothers Gohru and Fazaldin, was in occupation of the suit land earlier but later on the two brothers of the Plaintiff, Gohru and Fazaldin, migrated to Pakistan during the year 1947 but the Plaintiff did not migrate to Pakistan. In the Jamabandi for the year 1943-44 all the three brothers had equal shares in the joint holding and on the migration o f the two brothers of the Plaintiff to Pakistan 2/3rd share of the joint holding was to become evacuee property and not the share of the Plaintiff who remained in India. It has also come in evidence that the Plaintiff was never ejected from the land of his own share out of the joint holding, on any occasion whatsoever. No doubt, some documents have been referred whereby the suit land was allotted in favour of the Defendants by the Department of Rehabilitation and entry to this effect was also made in the Roznamcha Waquiati, as discussed earlier. It is really very strange to note how the suit land could be allotted in favour of the Defendants, being an evacuee property when the property h-d not been declared as evacuee property under the provisions of the Act. The allotment under prima facie was not only illegal but unsustainable under the provisions of the Act.

On the basis of the aforesaid evidence examined by the parties, the entries in the records of rights favouring the Plaintiff appear to have been changed in favour of the Defendants on the basis of the aforesaid reports made in the Foznawcha Naquiati. In the present case at least the share of the Plaintiff could not be declared an evacuee property and it was bound to be held that the same did not vest in the Custodian and it could not be allotted in favour of any person more so, in favour of the Defendants. In the present case not only the share of the Plaintiff but the shares of his two brothers, who migrated to Pakistan, had also not been declared as evacuee property under the provisions of the Act and without that declaration the share of the two brothers also did not vest in the Custodian and as a natural consequence there of that too could not have been allotted in favour of the Defendants. The latest entries in the record of rights recorded the sons of Plaintiff Badar Din to be in actual occupation of the suit land. It appears that earlier Badar Din and thereafter his sons had been in actual occupation of the suit land and entry in between in favour of the Defendants, on the basis of the allotment order, appears to be a paper entry. The oral evidence examined only indicated that the Plaintiff had been in actual occupation of the suit land. This land was previously Shamlat and the Plaintiff has been in occupation of the same as Hissedar and recorded to be so in the records of rights.

Learned Counsel for the Appellant has tried to find support, on the point of jurisdiction, from some precedents.

Haji Siddik Haji Umar and Others Vs. Union of India (UOI), has been cited by the learned Counsel for the Appellant to find some support for the plea of jurisdiction, submitted by him. The facts involved in the aforesaid case makes the ratio of the ruling not applicable to the present case. In the reported case the suit properties had been taken over under Junagadh Act as evacuee properties and it continued to be in possession of the Custodian till the Central Act was passed and it could not be said that they were not evacuee properties. That means that in the reported case the properties in dispute were taken as evacuee properties and, with that background, it was held that the question arising whether the properties in dispute were the evacuee properties or not and the jurisdiction of the civil Court in that event was barred. Here in the present case, under reference, there is nothing on record to prove that the property in dispute had been declared as evacuee property under the provision of the Act.

Dr. Rajendra Prakash Sharma v. Gyan Chandra and Ors. (AIR 1980 S.C. 1206) can be taken note of as a guideline to solve the controversy in hand. Para 29 of the aforesaid case requires some consideration which is reproduced hereunder for the sake of convenience:

The matter can be looked at from another angle also. Clauses(a), (c) and (d) of Section 46 postulate that at the time when the question whether or not a property is evacuee property comes for adjudication, the power of the Custodian General or the Custodian under this Act of 1950 to determine that question is subsisting. That is to say, if at the point of time when the question arises, the power of the authorities constituted under this Act to adjudicate that question stands terminated or extinguished by the operation of Section 7A of 1954, none of the Clauses (a), (c) and (d) of Section 46 will bar the jurisdiction of the civil Court to determine that question, which had not been decided by the Custodian during the period he had the power to determine it.

In the aforesaid reported case no proceedings u/s 7 of the Act to declare the property in question to be evacuee property were taken by the Custodian against the persons who remained in India till 1963 and no notification u/s 7(3) of the Act was published in the official gazette declaring the property as evacuee property, nor were any proceedings initiated u/s 7(2) declaring it evacuee property pending on May 7, 1954 and the question of saving those proceedings under proviso to Section 7A did not arise. In the aforesaid background it was held that after May 7, 1954, the Custodian had no jurisdiction to declare the property as evacuee property and the jurisdiction of the civil Court, thus was not barred u/s 28 and 46 of the Act.

The aforesaid ratio is fully applicable to the present case and with that background it can safely be said that in so far as the present case is concerned the Civil Court has got jurisdiction to decide the suit of the present nature.

In the present case another aspect of the matter is required to be considered. It has come on record, as referred to above, that the share of Badardin could not be declared as evacuee property as he never migrated to Pakistan. Otherwise also there is no notification issued under the Act to declare the share of Badardin or that of his brothers to be the evacuee property. The Defendants got the land only on the basis of the allotment. Only the share of evacuee in the composite property vests in the Custodian free from all encumbrances and not the entire property. It is with that purpose that the Evacuee Interest (Separation) Act, 1951, came into being. The Preamble of this Act recorded that it was an Act to make special provisions for the separation of the interests of evacuee from those of other persons in property in which such other persons are also interested and for matters connected therewith. At this stage Section 12 of the aforesaid Act can safely be referred, wherein it has been provided that "nothing in this Chapter shall prejudice any rights in respect of the property transferred or delivered, or payment made, to a claimant under the provisions of this Act which any other claimant or other person may be entitled by due process of law to enforce against the claimant to whom the property is delivered or transferred or the payment is made. This provision gives ample right to the Plaintiff to assail the right of the Defendants to be recorded as owners in possession on the basis of some allotment. In this view of the matter also, the present suit, as filed, definitely comes within the legal competency of the civil Court, to be entertained and decided.

No other point has been stressed.

In view of the foregoing reasons, I do not find any infirmity in the judgment and decree passed by the first appellate Court and, accordingly, dismiss the present appeal, being devoid of any merit. Parties are, however, left to bear their own costs.