Mahendra Pratap Dubey vs Managing Officer, Evacuee Property & Ors

A.M. Khanwilkar, J.

This appeal takes exception to the judgment and order dated 26th February, 2007 passed by the High Court of Judicature at Allahabad in Civil Misc.

Writ Petition No.30158 of 1995, whereby the writ petition filed by the appellant challenging the decision of the Chief Settlement Commissioner, Board

of Revenue U.P. at Lucknow was rejected. The Assistant Custodian/Managing Officer (Evacuee Property), Board of Revenue, Lucknow had

allowed the application filed by respondent No.3 - Mainmum Nissa @ Kumani, W/o Subrati @ Algu, R/o Village Singramau, Tehsil Shahganj, District

Jaunpur, U.P., accepting her claim that she was occupying the suit property as owner thereof, having purchased the same at a public auction and in

furtherance whereof a certificate of sale came to be issued in her favour and that respondent No.4 - Mohd. Sattar @ Mokhan (through whom the

appellant claims his right, title and interest in the suit property) was causing obstruction to her possession in the suit property on the basis of some

fictitious sale certificate dated 30th September, 1968.

Be it noted that the statutory authorities and the High Court have concurrently found that Ram Abhilakh (through whom the appellant claims to

have acquired title in the suit property), to whom notice was issued by the authority and opportunity was given to produce the official record in his

possession to substantiate that he had acquired title in the suit property pursuant to a transfer by the Custodian in favour of Md. Sattar @ Mokhan,

failed to do so. He avoided filing any document. Further, there was no record or any entry in the official register to show that any sale certificate was

issued in favour of Md. Sattar @ Mokhan by the concerned department.

On the other hand, it has been concurrently held that respondent No.3 had produced a certificate of sale dated 7th August, 1965 in her favour issued

by the competent authority in reference to an auction conducted on 12th July, 1962, at which she purchased the subject property. Further, there was

nothing to discredit the documents and the testimony of respondent No.3 that she had acquired right, title and interest in the suit property by virtue of a

certificate of sale in her favour. Such finding has been recorded by the first authority vide judgment and order dated 4th May, 1985 and confirmed by

the Collector, District Jaunpur, by dismissing the appeal preferred by the appellant bearing Case No.8/1984/522 decided on 7th October, 1988 and

further upheld by the Chief Settlement Commissioner, Board of Revenue, Lucknow, U.P., being the revisional authority, by dismissing the revision of

the appellant bearing Revision No.1(RR) No./1988-89) District Jaunpur, decided on 5th August, 1995. The High Court, therefore, declined to interfere

in exercise of its writ jurisdiction and dismissed the writ petition preferred by the appellant vide impugned judgment and order.

The moot question agitated by the appellant before the concerned authorities and up till the High Court, was that the Managing Officer, appointed

under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 had no jurisdiction to determine the validity of a sale certificate issued by

the Custodian of Evacuee Property in exercise of the powers conferred upon him under Section 10(2)(o) of the Administration of Evacuee Property

Act, 1950. This contention, however, did not find favour with either the authorities or the High Court in view of the findings of fact recorded against

the appellant. The appellant was neither able to assail the concurrent findings of fact recorded by the authorities before the High Court nor did he

produce the original sale certificate dated 30th November, 1968 purportedly issued in favour of respondent No.4 (Md. Sattar @ Mokhan), who had

transferred the property to one Shri Vishwanath S/o Kukhekahar who in turn transferred the same to Ram Abhilakh S/o Parmananad, R/o Shahganj,

District Jaunpur, from whom the appellant claims to have acquired the same.

In the present appeal, the appellant has contended that if an Indian citizen had left India to live in Pakistan, his property would become an evacuee

property as defined in Section 2(f) of the 1950 Act; and whence the Custodian alone would have the power under Section 10 of the 1950 Act to

transfer such property in the manner prescribed by the 1950 Act. Further, such evacuee property could indeed be acquired under Section 12 of the

Displaced Persons (Compensation and Rehabilitation) Act, 1954 by the Central Government, consequent to which the property would lose the status

of an evacuee property and the Custodian would be divested of its power to deal with the same. That property would then become a part of the

compensation pool as envisaged under Section 14 of the 1954 Act and only thereafter, could the Managing Officer assume control or authority over

the same and dispose it of in the manner specified under Section 20 of the 1954 Act. On facts, it has been argued on behalf of the appellant that

respondent No.3 admits that the property is an evacuee property and has not claimed that it is a compensation pool property. For, in the suit filed by

the husband of respondent No.3 (Subrati), being suit No.520/1982, it was asserted that the evacuee property has been auctioned off to respondent

No.3 by the Custodian; but in the subject application dated 30th April, 1982 field before the Managing Officer, respondent No.3 claims that the suit

property was purchased in an auction and consideration amount was deposited in the office of the Managing Officer and the sale certificate dated 7th

August, 1965 came to be issued in her favour by the Managing Officer. Similarly, in the counter affidavit filed before this Court, respondent No.3 had

claimed that the property was transferred to her by the Managing Officer. In substance, the argument is that respondent No.3 has taken a

contradictory stand before different authorities and courts, which must militate against her.

The contesting respondent, on the other hand, would contend that regard being had to the concurrent finding of fact recorded by the authorities

concerned and also upheld by the High Court, the sole issue raised by the appellant about the jurisdiction of the Managing Officer does not merit any

interference. An abstract debate bereft of any proof produced by the appellant to establish that the suit property was transferred to respondent No.4

(Md. Sattar @ Mokhan) by the Custodian in terms of sale certificate dated 30th November, 1968, does not merit examination. The question whether

such a sale certificate was issued and, in fact, exists, could certainly be examined by the Managing Officer before whom the subject application dated

30th April, 1982 was filed by respondent No.3, by virtue of the enabling provision in Section 19 and the bar of jurisdiction of the civil courts in terms of

Section 36 of 1954 Act. In such an enquiry, all aspects were open including to determine as to whether the sale certificate issued in favour of

respondent No.3 by the office of the Managing Officer, is valid. It is submitted that all the authorities including the High Court have concurrently found

that the sale certificate issued in favour of respondent No.3 in respect of suit property dated 7th August, 1965 was genuine and valid. Furthermore, it

has been concurrently found against the appellant that despite sufficient opportunity, his predecessor-in-title Ram Abhilakh S/o Parmanand did not

produce any document; nor did respondent No.4 (Md. Sattar @ Mokhan), through whom he (appellant) had claimed right, title and interest in the suit

property, produce the original transfer document issued by the Custodian to prove the genuineness of the transaction and further there was no record

or any entry in the official register evidencing that any sale certificate was issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the

department. In that view of the matter, the question of law sought to be agitated by the appellant about the authority of the Managing Officer to decide

the matter in issue concerning the sale certificate issued by the Custodian of Evacuee Property under the 1950 Act would be tenuous and the Court

should not enter upon that issue.

We have heard Mr. Anurag Dubey, learned counsel appearing for the appellant and Ms. Meenakshi Kalra, learned counsel appearing for the

respondents.

Indisputably, the respondent No.3 had filed an application before the Assistant Custodian/Managing Officer (Evacuee Property), Board of Revenue,

Lucknow, which highlighted two aspects. First, that it be declared or directed that she had acquired right, title and interest in the suit property by virtue

of the sale certificate dated 7th August, 1965 issued by the Managing Officer. Second, the claim of respondent No.4 (Md. Sattar @ Mokhan) that the

suit property was transferred in his favour by virtue of a sale certificate dated 30th November, 1968, issued by the Custodian is non-existent and not

genuine.

Respondent No.3 in the subject application had asserted that she had purchased the suit property at a public auction held on 12th July, 1962; and

after payment of the sale consideration in the office of the Managing Officer, a certificate of sale was issued in her favour on 7th August, 1965. To

buttress this submission, reliance has been placed by respondent No.3 - Mainmum Nissa @ Kumani on (i) Receipt issued by the Office of the

Regional Settlement Commissioner, U.P., accepting the consideration amount paid by her, (ii) Acceptance Letter issued by the Assistant Custodian,

Government of India, dated 10th June, 1965, and (iii) Certificate of Sale issued under the signature of the Managing Officer, Varanasi. The said

documents read thus:

“Annexure -R2

EVACUEE SIRAI

FORM NO.1

OFFICE OF THE REGIONAL SETTLEMENT COMMISSIONER

UTTAR PRADESH

Srl. No. 4209 Receipt No.30

Dated: 12.7.62

Received from Mst. Maimunnisha alias Kumman, 170/-(Rupees One hundred seventy only) by cash on account of rent / licence fee / licence money

in respect of / as earnest money for KacchaKhander house of Evacuee Sirai in Village Sgramau, Teh. Shahganj, Jaunpur.

Previous Receipt No. Dated

Note: Where payment is made by cheque and the cheque is dishonoured by the bank, the receipt will be rendered in valid.

H/B (highest bid) 1700/-

Sd/ (illegible)

12.7.62

Jr. Accountant

Subject to the approval of higher authoritiesâ€​

“Annexure R-3

Form No. IX

ACCEPTANCE LETTER

GOVERNMENT OF INDIA

MINISTER OF REHABILITATION

Office of the Assistant Custodian

District Varanasi

Dated: 10.6.1965

Smt. Maimun Nisha alias Kumman w/o Subrati alias (illegible) Shahganj, Jaunpur.

Subject: Sale Kaccha House Khander,

Situated at: Sigramau, Shahganj, Jaunpur.

Evacuee: Sirai

You are hereby informed that you bid dated 12 July, 1962 for Rs. 1700/- for the above noted property, has been accepted. You are further required to

send by pot or to produce before the undersigned a treasury challan for the deposit of balance money of sale price amounting to Rs.1530/-, under

Central head “S-Deposits and Advances â€" Part IV Suspense Accounts â€" P.A.O. Suspense â€" Transactions Adjustable with Pay and

Accounts Office, Rehabilitation Delhi â€" Finally Adjustable by P.A.O. under the Head S â€" Deposits and Advances â€" Part II Deposits not

bearing Interest â€" IVIL Deposits â€" Personal Deposits â€" Deposits on Account of Un-acquired Evacuee Propertyâ€, within 15 days from the

date of issue of this letter.

Sd/-

(B.B. VERMA)

Assistant Custodianâ€​

“Annexure R-4

GOVERNMENT OF INDIA

MINISTRY OF REHABILITATION

OFFICE OF THE MANAGING OFFICER

VARANASI

APPENDIX XXII

CERTIFICATE OF SALE

(Free Hold Property)

Rule 90(15)

Dated:7.8.1965

This is to certify that Smt. Maimun Nisha alias Kamman w/o Subrati resident of Sigramau, Shahganj, Jaunpur having given the highest bid at a sale by

public auction held in pursuance of the powers conferred upon me under Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act,

1954 (44 of 1954) on the 12th day of July 1962 of the properly described in the Schedule and his bid having been accepted and the valid thereof having

been paid by him in cash/ by adjustment of compensation due on his and his associates claims has been declared the purchaser of the said property

with effect from 25th day of June 1965.

Given under my hand and seal of my office this 26th June of 1965.

SCHEDULE

Kaccha House Khander

EVACUEE

Sigramau, Evacuee

Sirai Sale price 1700/-

Shahganj, Sirai

Jaunpur

East â€" House of Jokhu& Field

West â€" House of Gaya Dargai

North â€" Road

South â€" House of Dase

Sd/-

(B.B. Verma)

Managing Officer

Varanasiâ€​

From the acceptance letter, it is noticeable that it has been issued under the signature of one B.B. Verma, Assistant Custodian and the same

person issued a certificate of sale in his capacity as Managing Officer. It must be kept in mind that the application was moved by respondent No.3 and

not by the appellant or any of his stated predecessor(s)-in-title. In that situation, the enquiry into the application ought to be limited to the fact as to

whether the documents relied upon by respondent No.3 before the authority, to claim that she had acquired right, title and interest in the suit property

as a consequence of issuance of certificate of sale, were genuine. Neither the appellant nor his predecessor-in-title has challenged the validity of the

said official documents issued in favour of respondent No.3 before the concerned authority or otherwise. In the proceedings initiated by respondent

No.3, because of the stand taken by her that respondent No.4 (Md. Sattar @ Mokhan) was also claiming right, title and interest in the suit property by

virtue of a sale certificate issued in his favour by the Custodian, notices were issued by the competent authority to him as well as Vishwanath S/o

Sukhi and Ram Abhilakh S/o Parmanand to evoke their response. Despite opportunity given by the competent authority, they failed to produce any

document, much less original documents, evidencing that the Custodian had issued a sale certificate in respect of the suit property in favour of

respondent No.4 (Md. Sattar @ Mokhan).

The appellant as well as respondent No.4 having failed to produce any original document and since there was no record or entry in the official

register to show that such a sale certificate was issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Department, as concurrently

found by the authorities, it must follow that their claim in respect of the suit property remained unsubstantiated. In other words, the appellant has not

been able to establish any causal connection with the suit property either on account of allotment of the suit property to him or his predecessors, by the

competent authority or otherwise. The Assistant Custodian on analysing the factual position in its judgment observed thus:

“I have gone through the file and found there is no such documents have been filed by the objector whose genuineness can be examined except the

objection which has been filed on behalf of O.P. Sri Ram Abhilakh stating that this tribunal has got no jurisdiction to examine the genuineness of sale

certificate that which one is correct out of these two documents.

In this regard I have to mention that this has been the consistent view of the higher tribunal under the O.P. (C & P) Act No. 44 of 1954, that in a case

in which the nature of each complaint is that some forged deeds have been reported to have been issued by the Assistant Castodian/Managing Officer

the said officer can meet enquiries and can ask the person concerned to produced the relevant papers to examine their veracity find out if any such

deed was at all issued. In this connection a copy of order of Sri Prem Narain, Settlement Commissioner (Judicial) passed on 11.10.76 in appeal

No.14/SC/PN/U/70,SriMohd. Shamim Vs. Managing Officer, Lucknow was filed as an examper, in which it has been held that the Managing Officer

can certainly look into the matter on receipt of complaint and can pass appropriate order on that basis. Accordingly, the parties were directed to

produce relevant papers, the applicant Smt. MaimunNissa filed the original & photo copy of receipt of earnest money, acceptance letter dt. 10.6.65

and the sale certificate dt. 7.7.65 referred to above, and supported her contention on affidavit. Sri Ram Abhilekh did not produce any document and

also did not produce Sri Mohd. Satar @ Mohkan the alleged original transferred from the custodian to prove the genuineness of the transaction. On

the other hand the evaded to file the documentation the plea that the same cannot be looked into by the tribunal; which as stated above can always be

looked in this circumstances of the case.

In the absence of any papers or evidence of Sri Ram Abilekh the matter was examined with the available records.

The connected file shows that first the house was put to sale on 16.3.62 when the bid of Smt. Amina was the highest for Rs.1210/- and an amount of

Rs.121/- was deposited but subsequently for non deposit the balance money the sale was cancelled and the earnest money deposited was forfeited.

It further seems from the documents filed that the house was put to sale on 12.7.82 and it was knocked down in favour of MaimunNissa, who

deposited Rs.170/- as earnest money and on receipt of acceptance letter dt.10.6….. she deposited the balance sale consideration money on 26.6.65

and thereafter the certificate of sale was issued in her favour on 7.7.65 by Sri B.B. Verma, Managing Officer, Varanasi. I have seen the original

documents. There is nothing to discredit the said documents and the testimony of Smt. MaimumNissa. There is no record in the office or any entry in

the office register to show that any Sale Certificate was issued in favour of Mohd. Sattar @ Mohkan by this department. The sale certificate issued in

favour of Smt. MaimunNissa is accordingly held valid.â€​

(emphasis supplied)

This finding of fact and conclusion came to be affirmed by the Appellate Authority as well as the Revisional Authority for which reason the High

Court declined to interfere. Once it is held that no sale certificate issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Custodian of

Evacuee Property, under the 1950 Act is forthcoming nor any entry in the official register is found in that regard, all persons claiming through him

(including the appellant) must suffer the consequences of such a finding of fact. Notably, respondent No.4 (Md. Sattar @ Mokhan) has not claimed

right in respect of the suit property in any other capacity, and in that view of the matter, we fail to understand as to how Md. Sattar @ Mokhan, or any

person claiming through him, could be permitted to question the validity of the sale certificate dated 7th August, 1965 issued by the Managing Officer

in favour of respondent No.3 (Mainmum Nissa @ Kumani).

The appellant had placed emphasis on the finding rendered in the civil suit filed by the husband of respondent No.3, for permanent injunction

against respondent No.4 (Md. Sattar @ Mokhan). However, we agree with the concurrent view taken by the authority concerned that the said finding

will be of no avail to the appellant. For, respondent No.3 was not impleaded as a party in the said suit.

Suffice it to observe that the appellant, having failed to produce the sale certificate in favour of respondent No.4 (Md. Sattar @ Mokhan) issued

by the Custodian of Evacuee Property under the 1950 Act, he cannot be heard to raise the issue of jurisdiction of the Managing Officer to deal with

the subject property, including the validity of the sale certificate issued in favour of respondent No.3. A deeper enquiry as to how the Managing

Officer assumed jurisdiction to issue the sale certificate in favour of respondent No.3 would become relevant and essential only if the appellant was

able to substantiate the fact, at least prima facie, that the suit property was, in fact, transferred in favour of respondent No.4 (Md. Sattar @ Mokhan)

by the Custodian of Evacuee Property under the 1950 Act. Accordingly, this appeal must fail.

In view of above, the appeal is dismissed with costs.