Punjab-Haryana High Court
Dev Raj vs The State Of Haryana Through Collector ... on 1 August, 1995
Equivalent citations: (1996)112PLR376
JUDGMENT N.K. Kapoor, J.
1. This is plaintiffs regular second appeal against the judgment and decree of the Additional District Judge reversing the judgment and decree of the trial Court.
2. Plaintiff filed suit for permanent injunction on the ground that he purchased a plot of land measuring 275 Sq. Yds. and 5 Sq. ft. situate in Mohalla Kharadian Kaithal from Municipal Committee Kaithal for a sum of Rs. 1928.89 vide sale deed dated 3.7.1983 and so defendant No. 1 has no right or claim over this property nor has any right to put it to auction.
3. Defendant filed written statement taking preliminary pleas that the suit property being evacuee property the civil court has got no jurisdiction to try the same in view of Sections 36 and 46 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and Administration of Evacuee Property Act, 1950 respectively that the suit is liable to be dismissed for want of valid notice Under Section 80 C.P.C. that the plaintiff has no locus standi to file the present suit. On merit it was alleged that plot in dispute belonged to Muslim migrants and so was declared evacuee property and vested in the Custodian by operation of law Under Section 8(2A) of the Administration of Evacuee Property Act. Since the plot is an evacuee property the Municipal Committee has got no jurisdiction to transfer the same and so the alienation in favour of the plaintiff is illegal and void abinitio. It was further alleged that the matter was decided by Tehsildar (Sales) and so on these grounds the suit is liable to be dismissed. Municipal Committee in a separate written statement admitted that the plot in dispute was sold to the plaintiff by the answering defendant.
4. On the pleadings of the parties, the following issues were framed :-
1) Whether the plaintiffs is the owner in possession on the plot in dispute? O.P.P.
2) Whether the plot in dispute was evacuee property, if so its effect? O.P.D.
3) In case issue No. 2 is held in the affirmative whether the Civil Court has got the jurisdiction to try the present suit? O.P.P.
4) Whether the plaintiff is a bonafide purchaser for lawful consideration. If so its effect? O.P.P.
5) Whether the plaintiff is entitled to the injunction prayed for? O.P.P.
6) Relief.
5. The trial Court came to the conclusion that the property in dispute is not an evacuee property and so decided this issue against the defendants. Resultantly, it was held that the civil court has jurisdiction to try the present suit. Under Issue No. 4, it was held that the plaintiff was a bona fide purchaser for lawful consideration. Under issue No. 5 it was held that since the plaintiff was owner of the plot in dispute he is entitled to the injunction as prayed for. Resultantly, the suit of the plaintiff was decreed.
6. Before the appellate Court the Government pleader once again raised the issue as to the jurisdiction of the Court to decide the matter. According to the counsel for the appellant the civil court had no jurisdiction to adjudicate as to whether property is or not an evacuee property. Counsel for the respondent on the other hand urged that since property has not been declared to be an evacuee property as per Section 7-A of the Administration of Evacuee Property Act, the jurisdiction of. Custodian is barred. This way the, civil Court has got jurisdiction to decide the matter. The lower appellate Court after carefully examining the statutory provisions in the light of judicial pronouncements of this Court as well as of the apex Court came to the conclusion that "the nature of the property will have to be determined keeping in view the cumulative effect of the East Punjab Evacuees' (Administrative of Property) Act, 1947, and the provisions of Sections 7, 7-A and 8 of the Administration of Evacuee Property Act, 1950. And these questions exclusively fell within the scope and ambit of the Custodian and the jurisdiction of the Civil Court is barred Under Section 46 of the Administration of Evacuee Act, 1950". Resultantly, the finding of the trial Court was reversed. Since the Court came to the conclusion that the civil Court has got no jurisdiction appeal was consequently accepted thereby dismissing the suit of the plaintiff.
7. Challenging the conclusion arrived at by the first court of appeal, the learned counsel for the appellant argues that there is an error apparent on the face of the record leading to miscarriage of justice and so impugned judgment and decree deserve to be set aside. According to the counsel, the property in dispute was never declared to be an evacuee property on or before 7th of May, 1954 nor any notice was issued within six months from the commencement of the Amending Act of 1954 whereby Section 7-A was added to the Administration of Evacuee Property Act, 1950. This way the finding of the lower appellate Court that the matter cannot be examined in a civil Court is per se wrong. Further arguing the counsel urged that before ousting the jurisdiction of civil Court it has to be proved that the disputed property is an evacuee property and in the absence of this civil court has got jurisdiction to decide the same. Thus, there has been manifest error in reading the statements of witnesses and documentary evidence produced on record. Since the property in dispute was not an evacuee property any order passed by an authority under the Administration of Evacuee Property Act or under the Displaced Persons (Compensation and Rehabilitation) Act is nonest and can be validly challenged in a civil Court. Reference has also been made to the decision of the apex Court reported as Dr. Rajendra Prakash Sharma v. Gyan Chandra and Ors., A.I.R. 1980 S.C. 1206 and the decisions of this Court reported as Union of India etc. v. Lachhi Ram etc., 1972 C.L.J. 934, The Union of India and others v. Arshad, 1981 P.L.J. 510 and Jaswant Rai v. Ram Singh, 1987 P.LJ. 126.
8. On the other hand learned Assistant Advocate General for the State of Haryana urged that property in dispute was infact an evacuee property and so the Court below rightly declined to adjudicate in respect of the same in view of the bar of Sections 36 and 46 of the Displaced Persons (Compensation and Rehabilitation) Act of 1954 and Administration of Evacuee Property Act, 1950 respectively. Elaborating the counsel urged tat as a matter of fact the dispute was with regard to the exact demarcation of the disputed property as the property adjacent to it was owned by the Municipal Committee, Kaithal. Thus, it is under some mistaken impression that the Municipal Committee happened to sell the same to the present appellant. Since the rehabilitation authorities had no notice with regard to the auctioning or sale of the property in dispute no possible objection could be taken at the time of such auction/sale. All the same no such transfer can bind the State in any manner. According to the counsel, the disputed property was an evacuee property and so the Court below rightly declined to examine the disputed view of the specific bar Under Section 46 of the Administration of Evacuee Property Act. A bare perusal of the order of the Settlement Officer, Sales-cum-Assistant Settlement Commissioner, Haryana, dated 2.6.1976, Exhibit D-3, brings out clearly that disputed property was an evacuee property though newly discovered. Infact the appellant fell aggrieved by the order of Tehsildar (Sales) cum-Managing Officer dated 22.9.1975; filed an appeal which was disposed of vide order dated 2.5.1976, Exhibit D-3, with a direction to the Tehsildar (Sales) Kurukshetra to demarcate the property on the spot and thereafter decide the case afresh after giving an opportunity of being heard to the appellant. It is worth noticing that both these orders i.e. of Tehsildar (Sales)-cum-Managing Officer dated 22.9.1975 and the order passed by the Settlement Officer dated 2.6.1976 were earlier to the institution of the present suit. The appellant having been unsuccessful before the authorities under Rehabilitation Act instead of approaching the higher authorities for its reversal have chosen to approach the Civil Court whose jurisdiction is completely barred in terms of the Act. Appeal accordingly is devoid of any substance and same be dismissed.
9. Dispute pertains to a plot of land measuring 275 Sq. Yds. which the appellant purchased vide sale deed dated 3.7.1983 from the Municipal Committee, Kaithal and at the same time filed an application before the Managing Officer-cum-Tehsildar (Sales) to find out as to whether State of Haryana has got any interest in the said plot. On verification Tehsildar came to the conclusion that disputed portion form part of the evacuee property. This order was challenged by way of appeal before Settlement Officer (Sales)-cum-Assistant Commissioner and a direction was issued by the Settlement Officer to demarcate the property at the spot and thereafter decide the matter afresh after giving an opportunity of being heard. It is pursuance to the request of the appellant the property was demarcated at the spot vide exhibit D-4. Vide Exhibit D-4 it was found that plot measuring 62 x 44 ft. which has been sold by the Municipal Committee infact is owned by the Rehabilitation Department. This order is dated 16.12.1977. Admittedly, no further proceedings have been initiated by the appellant seeking reversal/modification of the order before the Rehabilitation authorities. Present suit is not for setting aside the order passed by the rehabilitation authorities and in a way these orders have become final between the parties. This way the lower appellate Court rightly declined to examine the matter in view of bar of Section 46 of the Administration of Evacuee Property Act. It is further the case of the appellant that since property had not been declared to be an evacuee property on or after 7th of May, 1954 authorities have unauthorisedly usurped the jurisdiction which infact did not vest in them. This objection is misplaced. Present is infact not a case that there is no declaration to the effect that the disputed property is an evacuee property. In fact as per the case set up by the respondent it was merely a case of indentification of the boundaries of the property which had already been declared to be an evacuee property and precisely for this reason the demarcation was effected at the spot and in the presence of the appellant. Perhaps for this very reason Municipal Committee has not come forward to contest this plea of respondent No.1 and rightly so. Else the Municipal Committee would have given specific proof to the effect that the area sold was owned by the Committee. Otherwise too, Section 8(2-A) of the Administration of evacuee Property Act states that "all property which under any law repealed hereby purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall, notwithstanding any defect in, or the invalidity of, such law or any judgment decree or order of any Court, be deemed for all purposes to have validly vested in that person, as if the provisions of such law had been enacted by Parliament and such property shall, on the commencement of this Act, be deemed to have been evacuee property declared as such within the meaning of this Act."
10. Facts when examined in the light of statutory provision Under Section 8(2-A) of the Act covers the cases which on discovery have been found to be an evacuee property as well. It is not a case of fresh declaration. It is a case where hidden evacuee property has been identified by the department and so Section 7-A of the Act does not help the case of the appellant in any manner. The decision in Dr. Rajendra Prakash Sharma's case (supra) is for the proposition that Section 46 will not bar the jurisdiction of the civil Court where the Custodian has never declared the property as evacuee property after taking proceedings Under Section 7. Present is not a case where proceedings Under Section 7-A were to be initiated. As noticed in the earlier part of the judgment as well it is merely a case of identification of an evacuee property already declared so and deemed to have vested as per provision of the Administration of Evacuee Property Act. The other two judgments reported as the Union of India and others v. Arshad, 1981 P.L.J. 510 as well as Jaswant Rais case (supra) merely follow the dictum laid down by the apex Court in Dr. Rajendra Prakash Sharma's case (supra). Thus, these two authorities have also no applicability. The decision in Union of India v. Lachhi Ram etc., 1972 C.L.J. 934 deals with the Evacuee Interest (Separation) Act, 1951 wherein it has been held that as per Section 20 any claim to composite property has to be decided by the Competent Officer and not by a Civil or Revenue Court. According to this judgment this Section does not lay down that whether the property is composite or not has also to be decided by the authorities under the Act alone and no civil or revenue Court can entertain any suit or proceedings with regard to the character of the property. This way the section does not oust the jurisdiction of the Court to decide whether the property is a composite property or not. This case too has no applicability on the facts of the present case.
11. On facts it as been found by the Courts below that suit land forms part of the evacuee property. This finding is based upon the actual demarcation effected at the spot (exhibit D-4) in the presence of the parties pursuance to the direction given by the Settlement Officer (Sales)-cum-Assistant Settlement Commissioner, Haryana, vide order dated 2.6.1976 (exhibit D-3). In view of this proved fact the lower appellate Court rightly declined the relief sought on the ground of bar of jurisdiction of the civil Court. Thus, finding no merit in the appeal the same is dismissed.
12. No order as to costs.