Madhya Pradesh High Court
Rameshwar Prasad vs Municipal Corporation on 16 March, 1992
Equivalent citations: 1992(0)MPLJ764
JUDGMENT K.L. Issrani, J.
1. The present appeal arises out of the judgment and decree dated 25-9-1984, passed by Shri S. K. Tiwari, Additional Judge to the Court of District Judge, Sagar, in Civil Appeal No. 41-A of 1984 arising out of the judgment and decree dated 23-12-1983, passed by the Second Civil Judge, Class II, Sagar, in Civil Suit No. 72-A of 1974.
2. The Municipal Corporation, Sagar, had filed a Civil Suit for ejectment against the appellant on the ground that the appellant was tenant in the suit premises at the rate of Rs. 5/- per month. The appellant has failed to pay arrears of rent. The premises were also in a dilapidated condition. The suit property was an evacuee property belonging to an evacuee and the said property was purchased by the respondent Corporation in an auction from the Central Government under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter called the 1954 Act). In the alternative, it was submitted that in case it is found that the appellant was not a tenant, the suit for ejectment should be decreed on the basis of title.
3. The defence of the appellant/defendant was that he was a tenant but in adverse possession. There was no privity of contract of tenancy between him and the Corporation.
4. The trial Court held that the respondent Corporation is the owner of the suit premises. It was earlier an evacuee property belonging to the Central Government. The appellant was not a tenant but a licensee. But it was held that the lease of the appellant has been validly terminated and the house is in good condition. It was further held that the suit premises cannot be repaired unless it is vacated by the appellant. The appellant was, therefore, ordered to vacate the premises with a direction to pay the licence fee to the respondent at the rate of Rs. 5/- per month till he vacates. Thus the suit was decreed.
5. Aggrieved by the said decree of the trial Court, the appellant filed an appeal before the lower appellate Court and the lower appellate Court upheld the judgment and decree passed by the trial Court.
6. This Court, while admitting the appeal, framed the following two substantial questions of law : -
"(i) Whether there was no evidence produced in the case to prove that the suit property had been previously an evacuee property?
(ii) Whether the Civil Court had jurisdiction to go into the said question?"
7. The submission of the learned counsel for the appellant is that (i) there is no notification placed on record declaring the property as an evacuee property; (ii) since no privity of contract between the parties was proved, the suit should have been dismissed; (iii) there is no basis for holding the appellant a licensee and (iv) there is no evidence of ownership of the property of the respondent or its predecessors.
8. Learned counsel for the respondent supports the judgments of the Courts below and submits that the findings arrived by the Courts below are concurrent findings of fact and do not call for any interference by this Court. He further submits that the appellant has failed to specifically plead and prove his adverse possession. The absence of the evidence of the terms of lease will give rise to the fact of presumption of the appellant being a licensee only. According to him though the appellant has denied the property to be the evacuee property but has not led any evidence to that effect. The Central Government or the Rehabilitation Department is not made a party to the suit. Therefore, the plea of the appellant that the suit property was not an evacuee property is not tenable against the oral and documentary evidence placed on record to this effect by the respondent.
9. So far as question No. (i) is concerned as to whether the property was earlier an evacuee property or not, the plaintiff has placed on record the sale-deed Ex.P-1 and has examined T. R. khanna (P.W.1) from the Rehabilitation Department, who was examined on commission. He identified and proved the signature of the Managing Officer Shri B. P. Maithani on Ex.P-1. According to him, the property shown in Ex.P-1 was sold to the Municipal Council, Sagar and the conveyance-deed was executed after receipt of full payment. According to him when this property was acquired, after declaration, as evacuee property they allotted the same to the tenant. However, he was not able to name the tenant occupying the same. This witness has not been cross-examined by the defendant-appellant and this statement has never been challenged before also; To this effect also is the statement of Diwakar (P.W.2) from the Municipal Corporation, Sagar, who has also proved Ex.P-1. Ex. P-1 is the certified copy of the deed of conveyance executed by the Managing Officer, Evacuee Properties, M. P., W. B., Bihar and Orissa at New Delhi for and on behalf of the President of India in favour of the Chief Municipal Officer, Municipal Council, Sagar, under Rule 33 of the rules framed under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. As shown above, this document stands proved by the witnesses T. R. Khanna (P.W.1) and Diwakar (P.W.2). The genuineness of this document has not been challenged by the appellant. The appellant's counsel's only argument is that there is no declaration on record to show that this property was ever declared as an evacuee property. The appellant in his statement before the trial Court stated that the disputed house belongs to him, and, he is living therein since the days of his father. The suit house was never an evacuee property and the custodian department was not in its possession (para 1). He further states in paragraph 3 of his deposition that his father is living in this disputed house since the year 1939 and they are living therein as owners thereof. But in cross-examination he admits that he has no document with him of his being the owner of the suit property. He further admits that he never got his name entered in Municipal records as owner or otherwise. He also admits that he never enquired about the property being the Government property because he never thought it proper to do so. According to him his father died in the year 1950. He is not able to say as to how old is the suit house. The other witness examined by him is Bhurabai (D.W.2), the mother-in4aw of Shivdayal, who admits to have given this statement at the instance of the appellant Rameshwar. She admits that a similar suit is also pending against Shivdayal. She only states that she had seen the father of the appellant living in the house but she has not seen any document to that effect.
10. From the statements of the appellant and his witnesses, the theory of adverse possession is destroyed. The definition of "evacuee property" as given in the 1954 Act is as under:
"evacuee property" means any property which has been declared or is deemed to have been declared as evacuee property under the Administration of Evacuee Property Act, 1950."
11. Under the Administration of Evacuee Property Act, 1950 (hereinafter called the Act of 1950), "evacuee property" is defined as under: -
"evacuee property" means any property of an evacuee (whether held by him as owner or as a trustee* or as a beneficiary or as a tenant or in any other capacity), and includes any property which has been obtained by any person from an evacuee after the 14th day of August 1947, by any mode of transfer which is not effective by reason of the provisions contained in Section 40, but does not include -
(i) any ornament and any wearing apparel, cooking vessels or other household effects in the immediate possession of an evacuee;
(ii) any property belonging to a joint stock company, the registered office of which was situated before the 15th day of August, 1947, in any place now forming part of Pakistan and continues to be so situated after the said date."
12. Section 12 of the 1954 Act gives power to acquire evacuee property for rehabilitation of displaced persons. All evacuee property acquired under this section shall form part of the compensation pool, as per sub-section (4) of this section. Section 14 of the Act deals with compensation pool. Section 20 gives power to transfer property out of the compensation pool, by sale, by lease or by allotment of any such property. Sections 22, 23 and 24 in Chapter IV of the Act of 1954 deal with the provisions of appeals and revisions. Section 27 attaches finality to every order made by any officer or authority under this Act, including a Managing Corporation. Section 36 bars the jurisdiction of the Civil Court to entertain any suit or proceeding in respect of any matter which the Central Government or any Officer or authority appointed under this Act is empowered to determine.
13. Section 7 of the Act of 1950 speaks about notification of the property being evacuee property declaring it to be so. Section 8 of the Act says that any property declared to be evacuee property under Section 7 shall be deemed to have vested in the Custodian for the State. Sub-section (4) of this section says that where after any evacuee property has vested in the Custodian, any person in possession thereof shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorised by him in this behalf. Section 16 of the Act says about restoration of evacuee property on the application of such person submitting that such property, which is vested in the Custodian, belongs to him and he is entitled for the same. Section 16(1-A) of this Act says that no such application shall be entertained unless before making the application, the applicant has filed appeals and revisions against the order declaring the property to be evacuee property and the application is to be made within sixty days of the final order of the Custodian General. Section 24 provides for appeals from orders under Sections 7, 40 and 48. Section 27 gives power of revision to the Custodian General. Section 28 attaches finality to the orders passed by the Custodian General.
14. The Civil Court has no jurisdiction to set aside these orders. As held in H. Esmail v. Competent Officer, Lucknow and Ors., AIR 1967 SC 1244, when no such objections are made and no steps taken under Sections 7, 24 and 27 of the Act such orders become final and the finding given therein cannot be questioned in writ proceedings. In the present case no such action having been taken by the defendant-appellant, the orders of the Custodian General have become final. The question whether the property has been vested or not being a question of fact cannot be used as a shield in the Civil Court, this Court cannot interfere in second appeal. The Apex Court in Haji Siddik Haji Umar v. Union of India, AIR 1983 SC 259 has held as under : -
"Section 16 of the Act provides for restoration of evacuee property by the Central Government. Section 27 of the Act gives power of revision to the Custodian General either on his own motion or on application made to him to call for the record of any proceeding in order to satisfy himself as to the legality or propriety of any order passed therein and to pass such order in relation thereto as he thinks fit. Section 28 of the Act bars the jurisdiction of any Court, of course other than the jurisdiction of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 and Article 136 of the Constitution to entertain any suit or proceeding with respect to any order passed by the authorities mentioned therein. Section 46 of the Act which is worded very widely bars 'the jurisdiction of Civil or Revenue Courts in regard to matters mentioned therein. No such Court can entertain any suit or proceeding in which the question whether any property is or is not evacuee property arises or in which the legality of any action taken by the Custodian General or Custodian under the Act is questioned. Any matter which the Custodian General or the Custodian is empowered to determine by or under the Act is also outside the jurisdiction of any such Court. (See Custodian of Evacuee Property, Punjab v. Jafrain Begum, (1967) 3 SCR 736 = AIR 1968 SC 109). In view of the above provisions, it was not open to the Civil Court in this case to decide whether the suit properties were evacuee properties or not. It was also not open to it to decide the correctness of the order of the Custodian General dated August 9, 1950 declining to interfere with the order of the Custodian dated June 2, 1950. The question whether a certificate should have been issued by the Central Government also was by implication barred as it was the Custodian who had to restore the property after holding an enquiry into the title of the evacuee when an application was made to him along with a certificate issued by the Central Government and a certificate of that nature by itself would be of no use. Neither Haji Umar Kasam nor after his death his heirs and legal representatives questioned those orders before the High Court under Article 226 of the Constitution or before the Supreme Court under Article 32 or under Article 136 of the Constitution. They thus became final and were beyond the jurisdiction of the Civil Court."
15. Therefore, Section 46 of the Act of 1950 bars the jurisdiction of Civil or Revenue Court to question the legality of any action taken by the Custodian General or Custodian under this Act. In the present case no steps were taken by the appellant to challenge the property being evacuee property. Even the sale-deed Ex.P-1 in favour of the respondent was not challenged. The statement of the witness T. R. Khanna (P.W.1) was also not challenged. According to Section 49 of the Act of 1950, all records prepared or registers maintained under this Act shall be deemed to be public documents within the meaning of the Indian Evidence Act, 1872, and shall be presumed to be genuine until the contrary is proved. I think the appellant has also no basis to challenge the sale-deed, because the appellant in this case has claimed himself to be the owner of the suit property. He is not claiming being so by way of adverse possession. No such pleading or proof of ownership by adverse possession has been alleged in this case. The fact that there was no privity of contract between the parties is of no avail because sub-section (4) of Section 8 of the Act gives right to the Custodian to eject a person in possession. Section 8(4) of the Act of 1950 is reproduced below -
"(4) Where after any evacuee property has vested in the Custodian any person is in possession thereof, he shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorised by him in this behalf."
On reading sub-section (4), the possession of the appellant will be only that on behalf of the Custodian. Therefore, it cannot be said that the finding arrived at by the Courts below that the appellant was in permissive possession cannot be said to be illegal. Again Section 50 of the Act of 1950 says that the Court shall not proceed to determine the question relating to the property of an evacuee or an intending evacuee until after notice has been given to the Custodian. In this case, the Custodian has neither any property nor any notice was given to him.
16. Therefore, the questions of law framed by this Court are answered in negative.
17. Consequently, the appeal fails and is hereby dismissed with costs. Counsel's fee Rs. 500/-, if certified.