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Delhi District Court

Shri Mohd. Ishaq S/O Shri Mohd. Ibrahim vs Shri Munna @ Mohd. Yusuf Thorugh His ... on 19 March, 2009

                               -: 1 :-
                                                 Suit No. 739/08


IN THE COURT OF SH. VINAY SINGHAL, JSCC-CUM-ASCJ-
CUM-GUARDIAN JUDGE(WEST): DELHI

                          Suit No. 739/08

Date of Institution : 22.04.1985

Date of Decision : 19.03.2009

In re:

Shri Mohd. Ishaq S/o Shri Mohd. Ibrahim,
R/o Property No. XIV/8875-76 (Old)/
XIV/7764-65 (New), Qasabpura,
Sadar Bazar, Delhi.
                                                ......Plaintiff

Versus


1.       Shri Munna @ Mohd. Yusuf thorugh his L.R.s

         I).     Mst. Akhtari Begum - Widow
         ii).    Gulzar      -    Son
         iii).   Iqbal       -    Son
         iv).    Irfan       -    Son
         v).     Kallan      -    Son
         vi).    Nazma       -    Unmarried daughter
         vii).   Nassima -        Unmarried daughter

2.       Smt. Shahida,

3.       Smt. Zahida

4.       Suraya

5.       Shri Umar Daryaz alias Dr. Umar

6.       Shri Mohammed Aqil


                                                         Contd...
                              -: 2 :-
                                                 Suit No. 739/08




7.     Mohd. Kamil - Decd.

8.     Miss Nargis

       All sons and daughters of late Mohammed Iqhaq
       residents of H.No.XIV/6270, Gali Jharisian,
       Qasabpura, Sadar Bazar, Delhi.

9.     Sh. Kamarozamma alias Shabhu
       S/o Ahsan Ullah alias Chhanno,
       R/o XIV/7764, Qasabpura,
       Sadar Bazar, Delhi.

10.    Chief Settlement Commissioner,
       Jaiselmer House, New Delhi.

                                           .....Defendants


      SUIT FOR POSSESSION AND RECOVERY OF DAMAGES

                      JUDGMENT

PART - A The present suit is a suit for possession and recovery of damages. Brief facts necessary for the disposal of the same are as under:

1. It is the case of the plaintiff that the land underneath the property No. XIV/7764-65 (New), XIV/8875-76 (Old), Kasabpura, Delhi, belong to Sh.

Harphool Singh and Hari Singh, on which a structure was Contd...

Suit No. 739/08 raised by Sh. Habir Ahmad. The said Sh. Habir Ahmad during partition migrated to Pakistan and accordingly, the superstructure and the land underneath was declared an evacuee property. However, as Sh. Habib Ahmad was only occupier of superstructure, the above named owners of the land underneath raised objections before Assistant Custodian (Judicial) Sh. Jagdish Singh, who vide order dated 01.10.1953 declared the above named persons as the owners of the land beside declaring that the land in question has been wrongly notified as an evacuee property. It is also declared that only the superstructure is an evacuee property. A direction was also issued to the effect that the land in question be treated as deleted from the notification.

2. The above named owners also filed a suit for ejectment and recovery of damages against the said Habib Ahmad as well as custodian of evacuee property which was decreed by the competent court of law thereby determining the tenancy. Now it is submitted by plaintiff that despite the land in question being ordered to Contd...

Suit No. 739/08 be denotified by the order dated 01.10.1953, the said land was sold to the defendant no.1 in open auction, who further sold a portion of the same to the predecessor in interest of defendant nos. 2 to 9.

3. It is further submitted by the plaintiff that he purchased the land from the original owners vide registered sale deed dated 24.03.1973 registered on 23.04.1973. Accordingly, it is submitted that as vide order dated 01.10.1953, the land in question was declared to be non evacuee property, the plaintiff having purchased the same from the rightful owner is entitled for the possession of the suit land from the defendants as well as for recovery of damages towards use and occupation of the same.

4. In defence, it is submitted on behalf of defendant no. 1 that he has purchased the suit property in the year 1966 from the Custodian of Evacuee Properties and since then is in continuous possession of one shop while the defendant no. 2 to 8 are in possession of the other shops. It is further averred that as the Contd...

Suit No. 739/08 property was notified as evacuee property and the Central Government has acquired it U/S 12 of the Displaced Persons (Compensation & Rehabilitation) Act, the same had become a part of Evacuee Pool and by virtue of Sub Section 2 of Section 14 of the Act, after the vesting of the property in the Central Government, the same become free from all encumbrances and no body can claim any right over the same against the lawful owner declared by Central Government. It is further submitted that as the plaintiff has purchased the suit property in the year 1973 despite having knowledge that the property has been sold to the defendant no.1, it cannot claim equity as the so called right of the plaintiff has been acquired by him with the full knowledge of the same, which rights infact are not in existence.

5. As far as defendant no. 10 is concerned, it is submitted that though the property in question belongs to the original owner Harphool Singh and Hari Singh but keeping in view the fact that the property has already been sold to the defendant no.1 in the year 1966 and the Contd...

Suit No. 739/08 representation of the plaintiff against the said sale stands dismissed firstly by the Managing Officer of the defendant no. 10 and also subsequently by the Settlement Commissioner in an appeal filed by the plaintiff whereby it has been held while dismissing the claim of the plaintiff with respect to possession of the property that the sale has become final and the only remedy available for the plaintiff is to claim compensation, by virtue of order dated 12.10.1976, the suit is not maintainable.

PART-B

6. Accordingly, from the pleadings of the parties, issues were framed vide order dated 30.07.1987.

7. Both the plaintiff as well as defendant no. 10 led evidence with respect to their respective claims.

PART-C Accordingly, on the basis of the pleadings, evidence, documents on record and the arguments advanced, the issues are being decided as under:

Contd...

Suit No. 739/08 ISSUE NO. 1

"Whether this court has jurisdiction to try the present suit in view of S. 12 & 14 of the Displaced Persons (Compensation and Rehabilitation Act)? Onus on both the parties"

8. As far as the issue no. 1 is concerned, a perusal of Section 12 as well as Section 14 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 makes it clear that there is no bar placed by virtue of the said Section upon the civil court to entertain the said suit.

8.1 However, by virtue of Section 15, a clear cut provision has been made out, whereby it has been provided as under:

"Section 15. Exemption of property in compensation pool from process of courts -

No property which forms part of the compensation pool and which is vested in the Central Government under the provisions of this Act shall be liable to be proceeded Contd...

Suit No. 739/08

against for any claim in any manner whatsoever in execution of any decree or order or by any other process of any court or other authority".

Further Section 27 of the Act provides as under:

"Section 27 - Finality of Orders - Save as otherwise especially provided in this Act, every order made by any officer or authority under this Act, including a managing corporation, shall be final and shall not be called in question in any court by way of an appeal of revision or in any original suit".

Also Section 36 of the Act provides as under:

"Section 36. - Bar of jurisdiction - Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction to entertain any suit or proceedings in respect of any manner with the Central Government or any officer or authority appointed under this Act is Contd...

Suit No. 739/08 empowered or under this Act to determine and no injunction shall be granted by any court in respect of any action taken or to be taken in pursuance of any power conferred under this Act."

8.2 The combine reading of Section 15, 27 and 36 of the Act, makes it very clear that the sale in favour of defendant no. 1 by the Central Government has attained finality and the question of the said sale cannot be challenged by the plaintiff herein by virtue of filing civil suit as the jurisdiction of the civil court is totally barred by the above provisions in express terms. 8.3 Further more as per (1968) 70 Pun LR 568 (570), it has been clearly held as under:

"When a notification has been issued under Section 12 of the Act, the custodian of the Evacuee property becomes and absolute owner of the same."

8.4 Also by virtue of (1989) 2 Andh LT 193, it has been held that publication of a notification by Central Contd...

Suit No. 739/08 Government for acquisition of evacuee property, extinguishes pre existing right in the property. 8.5 Accordingly, by virtue of the above discussion also it is amply clear that once the property has been notified by the Central government, the original owners lost any right with respect to the said property and accordingly, the said notification itself having not been set aside, the plaintiff could not have acquired any right over the said property. Even otherwise the original owner of the property having not filed any objections at the appropriate time against the auction of the property in the year 1966, the sale of the property to defendant no.1 had become final. It is not the case herein where the sale itself has been challenged. Even the sale cannot be challenged before the civil court in view of the provisions mentioned above. The challenge to the sale has already been decided by the competent authority as per the documents Ex. D10/C and Ex. D10/D. 8.6 Accordingly, in these circumstances, the court hereby hold that it has no jurisdiction to try the present suit Contd...

Suit No. 739/08 in view of the above discussion. Issue No. 1 is accordingly decided against the plaintiff.

ISSUE NO. 2

"Whether suit is within limitation? Onus on both the parties"

9. As far as issue no. 2 of limitation is concerned, the same does not apply in the present case as the suit itself is not maintainable before the civil court. ISSUE NO. 3

"Whether the present suit discloses any cause of action?OPP"

10. As already held while discussing issue no. 1 above, the plaintiff has filed the suit for possession merely on the basis of his title on account of the sale deed executed in his favour. It has been held by virtue of Ex. D10/C and Ex. D10/D that the sale in question cannot be challenged and by virtue of Section 15, 27 and 36, the order passed by the competent authority under the Displaced Persons Act being not challengeable before the civil court, it can be stated that the plaintiff has no Contd...

Suit No. 739/08 cause of action having no right to file the suit for possession when the challenge to the sale has already been dismissed. Accordingly, issue no. 3 is decided against the plaintiff.

ISSUE NO. 4

"Whether plaintiff is the legal owner of the property in dispute bearing No. 14/7764-65, Qasabpura, Sadar Bazar, Delhi?OPP"

11. In view of the outcome of issue no. 1 to 3, the court has no hesitation to hold that the plaintiff is not the legal owner of the property in dispute. Issue no. 4 is accordingly, decided against the plaintiff.

PART-D ISSUE NOS. 5 & 6 Issue No.5: "Whether the plaintiff is entitled to the relief claimed as prayed for?OPP"

Issue No.6: "Relief"

12. In view of the outcome of issue nos. 1 to 4, the court hereby held that the plaintiff is not entitled for the Contd...

Suit No. 739/08 decree of possession as well as recovery of damages. Suit of the plaintiff is accordingly dismissed. No order as to costs. Decree sheet be prepared and file be consigned to Record Room.

Announced in the open court today the 19th March, 2009.

(VINAY SINGHAL) JSCC-cum-ASCJ-cum Guardian Judge (West),Delhi 19.03.2009 Contd...