Parmeshwar Mahton and Others vs Ramcharitar Singh and Others

R.K. Choudhary, J.—Defendants 5, 6, 7 and 9 are the appellants.

One Roshan Ali died leaving a son, Abid Ali, a widow, Bibi Khodiza, and a daughter Budha Bibi. According to the case of the plaintiffs, Abid Ali got 13 annas 4 pies interest in the properties left by Roshan Ali. The remaining 2 annas 8 pies interest vested either in Bibi Khodiza, the widow, or Budha Bibi, the daughter, or both; but ultimately, the entire 2 annas 8 pies share came in possession and ownership of the daughter, Budha Bibi. Abid Ali died leaving a son, Nawab (defendant No. 1), a widow Wazihan and four daughters, Soghra, Zohra, Bibi Buna and Noorzehan (defendants 12 to 15). Zohra has two sons, Farooq (defendant No. 3) and Nazir, a minor, defendant No. 16. In the inheritance of Abid AH, therefore, Nawab got 3 annas 10 pies share, the widow, Wazihan, got 1 anna 8 pies share and the four daughters got 7 annas 8 pies share. On the 15th March, 1947, Budba transferred her 2 annas 8 pies share to Farooq and Nasir, sons of Zohra. On the 24th October, 1953, the four daughters gave their 7 annas 8 pies interest in mokarrari to one Saheb Singh. On the same day, Zohra also gave 1 anna 4 pies share of her minor son, Nazir, in mokarrari to the said Saheb Singh. Thus, Saheb Singh got 9 annas share in the properties in question. On the 19th July, 1954, Saheb sold 14 kathas in survey plot No. 450 and 9 kathas 15 dhurs in survey plot No. 385 to one Sheoratan (plaintiff No. 4) and Guput (plaintiff No. 5), respectively. These lands appertain to khata No. 196. Saheb Singh, as plaintiff No. 1, and his two sons, as plaintiffs, 2 and 3, along with Sheoratan and Guput (plaintiffs 4 and 5), filed a suit for partition of the above 9 annas share against the various defendants, including the appellants. During the pendency of the suit, Saheb Singh died leaving behind his two sons, who were already on record as plaintiffs 2 and 3.

The suit was contested mainly by defendant No. 1, Nawab, who pleaded that the entire inheritance of Roshan Ali had passed on to him as all the females were excluded from inheritance. According to his case, on the death of Roshan, his entire inheritance passed to Abid Ali and nothing was inherited by Bibi Khodiza or Budha Bibi. Similarly, on the death of Abid Ali, his son, Nawab, got the entire inheritance, and the widow, Wazihan, and the four daughters of Abid Ali did not get any share in that inheritance. It was also pleaded that he was in possession of the suit properties for over 12 years and thus acquired right by adverse possession. He made bhaoli settlement of the suit lands with defendants 4 to 10 and later on the bhaoli rent was commuted into naqdi in 1353 Fs. Defendants 4 to 10, who were the bhaoli settlees, supported the case of defendant No. 1 and claimed that they were the tenants under him. The suit was compromised between the plaintiffs and defendants 4, 8 and 10, and a compromise decree was passed so far as they were concerned.

Both the Courts below recorded concurrent findings on the question of the inheritance got by the plaintiffs and the mokarrari settlement and sales, as alleged in the plaint, in favour of the plaintiffs and rejected the case of the defendants. The suit was, accordingly, decreed on contest against the contesting defendants. Being thus aggrieved, this second appeal has been filed.

This appeal came up for hearing before a learned Single Judge of this Court, and a point was raised on behalf of the appellants that the suit was not maintainable u/s 20 of the Evacuee Interest (Separation) Act (Act LXIV of 1951). The learned Single Judge, appreciating the importance of the question so raised, referred the case to be heard by a Division Bench. This case has, therefore, been placed before us for hearing.

I am afraid, the plea raised u/s 20 of the Evacuee Interest (Separation) Act (hereinafter referred to as "the 1951 Act") is not maintainable, inasmuch as no such plea was taken in the written statement, nor was the point raised in either of the two courts below. Mr. Prasad contended that the decision of this point depends purely on the decision of a question of law, and, therefore, even if it was not taken in the written statement, it could be taken at any time, even during the hearing in second appeal. True it is that, if the decision of this point involves only a question of law and no question of fact has to be investigated, the point could have been raised in this appeal. As I will presently show, questions of fact have to be decided in order to give effect to this plea. Sub-section (1) of Section 20 of the 1951 Act states that, save as otherwise expressly provided in this act, no civil or revenue Court shall entertain any suit or proceeding in so far as it relates to any claim to composite property which the competent officer is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the competent officer in respect of the composite property shall be granted by any civil Court or other authority. In order to give effect to the above provision, it must be found that the suit properties were composite properties. Section 2(d) of the 1951 Act defines composite property to mean "any property which or any property in which, an interest has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950 (XXXI of 1950).

There are some other provisions with regard to the definition which are not relevant for the purposes of the present discussion. In order that the property should be "composite property", it has to be found that the same has been declared to be an evacuee property, or has vested in the Custodian under Act XXXI of 1950. Sub-section (1) of Section 7 of this Act lays down that "where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property." Sub-section (1) of Section 8 States that "Any property declared to be evacuee property u/s 7 shall be deemed to have vested in the Custodian for the State....

Therefore, in order to give effect to the plea of Section 20 of the 1951 Act, the Court has ultimately to give a finding on the question that the property has been declared to be evacuee property and that it has vested in the Custodian,

It appears in the present case that an objection was taken in the written statement that Farooq, son of Zohra, had gone to Pakistan and he had been declared an evacuee. Although in the plaint Farooq was made defendant No. 3 with the allegation that he was in possession of a share in the suit properties as being a co-owner, the plaintiffs amended the plaint, in order to avoid any future confusion, by making the Assistant Custodian defendant No. 3(A) in the suit without admitting or saying anything about any declaration having been made as to Farooq being an evacuee. Beyond an objection in the written statement no evidence was brought on the record to prove that Farooq had been declared to be an evacuee and his properties had vested in the Custodian. That being the position, it is not possible to permit the appellants to raise this point for the first time in the second appeal.

On merits, the concurrent findings of the Courts below are in favour of the plaintiffs and they, being findings of fact, have not been and could not be challenged by Mr. Prasad. There is thus no merit in this appeal, which is, accordingly, dismissed; but, in the circumstances, there will be no order as to costs.

Shambhu Prasad Singh, J.

I agree.