Delhi District Court
Addl. District Judge-19: Central ... vs Mst. Fatma Sultana (Now Deceased) on 13 August, 2009
1
IN THE COURT OF SHRI RAKESH TEWARI:
ADDL. DISTRICT JUDGE-19: CENTRAL DISTRICT,
TIS HAZARI COURTS : DELHI.
RCA NO.33/08 (old no.218/72)
Mohd. Usman (deceased)
through legal heirs
(i)Mst. Shehzadi Begum
widow of Late Mohd. Usman
(ii)Mohd. Rizwan
son of Late Mohd. Usman
(iii)Rehnaz Begum
Wife of Abdul Khalique
and daughter of Late Mohd. Usman
(iv)Nazneed Begum
wife of Liaqat Hussain
and daughter of Late Mohd. Usman
(v)Yasmeen Begum
daughter of Late Mohd. Usman
(vi)Mohd. Sugiyan
son of Late Mohd. Usman
(vii)Mohd. Iiman
son of Late Mohd. Usman
(viii)Mohd. Rayyan
son of Late Mohd. Usman
(ix)Safya Saseem
daughter of Late Mohd. Usman
(x)Mohd. Noman
son of Late Mohd. Usman
(xi)Mohd. Farman
2
son of Late Mohd. Usman
(xii)Mohd. Mannan
son of Late Mohd. Usman
All resident of 222, Gali Garhiya,
Matia Mahal, Jama Masjid,
Delhi-110006.
(Impleaded vide order dated
25.3.1987 in C.M No.713/86)
....Appellants
VERSUS
Mst. Fatma Sultana (Now deceased)
Through her legal heirs
(i)Mohd. Jameel
son of Late Mohd. Vakil
r/o 735, Kabir Market, Jama Masjid, Delhi.
Also at:
1622, Sui Walan, Darya Ganj, Delhi.
(ii)Mohd. Fahmida
daughter of Late Mohd. Vakil
r/o 748, Suiwalan, Jama Masjid, Delhi.
(iii)Mst. Naeema
daughter of Late Mohd. Vakil
r/o 1622, Suiwalan, Jama Masjid, Delhi.
(iv)Mst. Firdoz
d/o Late Mohd. Vakil
r/o 2482, Baradari, Ballimaran,
Delhi-110006.
(v)Mst. Shamim
d/o Late Mohd. Vakil
3
r/o 1563, Gali Kotna, Suiwalan,
Jama Masjid, Delhi-110006.
(vi)Mst. Naseem Begum
wife of Ahmad Sayeed
r/o 2761, Gali Garhayya,
Darya Ganj, Delhi-110002.
(vii)Mst. Talseem Begum
wife of Mohd. Atiq,
r/o 1635, Suiwalan, Darya Ganj,
Delhi-110002.
(viii)Mst. Nasreem Begum
wife of Mohd. Hanif
r/o 1748, Hauz Suiwalan,
Darya Ganj, Delhi-110002.
(ix)Mst. Waseem Begum
w/o Mohd. Razak
r/o 2021, Kucha Chelan,
Darya Ganj, Delhi-110002.
(Impleaded vide order dated
10.2.1999 in C.M No. 1794/96)
....Respondents
Date of Institution : 24.5.1972
Date when the case reserved for order : 31.07.2009
Date of Order : 13.08.2009
ORDER
1. This is an appeal filed by the said legal heirs of the deceased appellant against the impugned judgment and decree dated 23.2.1972 passed by the then Ld. Sub Judge 4 First Class, Delhi, whereby the suit of the deceased respondent/plaintiff was decreed for possession of H.No.740, Kabari Bazaar, Jama Masjid, Delhi, along with costs and Rs. 2385/- with proportionate costs were also decreed in favour of the deceased respondent/plaintiff.
2. At the very outset, it is necessary to mention here that out of the said legal heirs of the deceased appellant/defendant, one of the legal heirs namely Mohd. Rizwan mentioned at Sl. No. 2 in the memo of parties has not appeared to prosecute his appeal as he was not found residing at the address given for the last 56 years and he was being represented by another Lawyer during the trial of the suit before the Ld. Trial Court and as such appeal qua the said legal heir namely Mohd. Rizwan was ordered to be dismissed vide my order dated 7.7.2009.
3. The facts giving rise to the present appeal are that the deceased respondent namely Mst. Fatma Sultana filed a suit for possession and for recovery of Rs.3200/- and for mesne profits against the deceased appellant late Mohd. Usman s/o Sh. Mohd. Siddique, on the ground that the deceased respondent was the owner of H. No.740 (new), 5 Kabari Bazaar, Jama Masjid, Delhi, which was purchased by her from Union of India for a consideration of Rs. 9873/- vide Deed of Conveyance dated 31.12.1963 which was duly registered and it was alleged in the plaint that the deceased appellant was in unauthorized possession of the said house and was liable to surrender possession thereof to the deceased respondent and that the deceased appellant refused to deliver the possession of the said house inspite of repeated demands and requests and thereafter a legal notice dated 13.7.1966 was also served upon him to that effect but with no consequence and as such the deceased appellant was also liable to pay compensation/mesne profits to the deceased respondent for use and occupation of the said house with effect from 1.1.1964 at the most reasonable and proper rate of compensation/mesne profits @ Rs.100/- per month, taking into consideration the extent of accommodation, the locality and the value of the house as well as the rental etc which the same could fetch and thus, for the period from 1.1.1964 up to the date of filing the suit, a sum of Rs. 3200/- had fallen due as compensation/mesne profits and he was also liable to pay compensation/mesne profits from the date of the institution of 6 the suit till the delivery of possession to the deceased respondent and a preliminary decree directing an enquiry regarding the said future mesne profits was requested to be passed.
4. In the written statement, filed by the deceased appellant, he took the preliminary objection that suit was not properly stamped for the purposes of court fee and that the respondent had no locus standi as she was not the owner of the property in dispute (without prejudice to the ownership rights of the deceased appellant in superstructure the word "property" has been used in the written statement). The further preliminary objection in the written statement was that the property in dispute was not the property forming part of the compensation pool and if there was any sale in favour of the deceased respondent as alleged, there was no legal sale but a void sale and that no right, title or interest was thus created in the deceased respondent on the basis of which the said suit was brought by her against the deceased appellant and he has further objected that Union of India/ Custodian of Evacuee Property/Managing Officer were necessary and proper parties since the deceased respondent 7 was neither a displaced person-allottee nor the occupant of the property in dispute and that the sale was made in her favour under the political pressure, concealment of true facts, misrepresentation and a regular fraud was played with the authorities and in the said circumstances, the above said authorities were necessary and proper parties.
5. The deceased appellant in his written statement on merits has denied the ownership of the deceased respondent but it was admitted that at one time the property in question belonged to the custodian of Evacuee Property, Delhi but subsequently it became a 'Khandar' (dilapidated) and there was no superstructure worth the name and that the entire superstructure thereupon was raised with the consent, approval, without any objection in any manner whatsoever from any side at any time and thus, the deceased appellant was its owner and he has also denied the Deed of Conveyance dated 31.12.1963 and submitted that it was the result of misrepresentation, concealment of true facts under the political pressure and a fraud played upon the authorities by the deceased respondent. The deceased appellant in his written statement has further denied that he was an 8 unauthorized occupant of the property in question and submitted that he was authorized occupant and a tenant of the Custodian of Evacuee Property, Delhi at a rent of Rs. 8.50p per month and his possession stood approved and accepted by the various press-notes of the Custodian of Evacuee Property/Managing Officer and the Ministry of Rehabilitation, New Delhi and as such, the deceased appellant was in no way liable to surrender the possession thereof. He has further denied that the deceased respondent was entitled to any mesne profits much less at the rate of Rs. 100/- per month as claimed by her and he submitted that as the land belonged to the Custodian of Evacuee Property, Delhi, the rate of damages, at worst, could be Rs. 8.50p and not more than this and the said submission was without prejudice to the other grounds taken in the written statement. He has further denied the entitlement of the deceased respondent to recover Rs. 3200/- as claimed.
6. The deceased respondent has taken "additional pleas"
in his written statement to the effect that he was a "Sakka", the water carrier by caste and belonged to a backward class and that according to the press-notes issued by the Ministry 9 of Rehabilitation, New Delhi, (now Ministry of Labour, Employment and Rehabilitation, Department of Rehabilitation) all persons belonging to Scheduled Castes or Backward classes and Scheduled Tribes were entitled to get the properties at a value fixed by the authorities and that the request of the deceased appellant was turned down by the said authorities without any cogent reasons and discriminating him with other citizens of the country and as such also the sale in favour of the deceased respondent was void ipso facto and he has further pleaded that he moved various applications for transfer of the property in question in his favour which were rejected arbitrarily for the reason that political pressure weighed heavily on the authorities which the deceased respondent utilized in her favour. He has further pleaded that the property in question was put to auction and the appellant gave the highest bid of Rs.6,000/- and a sum of Rs.1200/- was lying deposited representing 20% earnest money under the Rules but this sale was also rejected for the reasons stated above. It was further objected by him that the property no.IX/739-40 (new), Kabari Bazaar, Jama Masjid, Delhi was composite property and treated as such by 10 the Competent Officer, Delhi on the information and claim filed by the Custodian of Evacuee Property, Delhi under Section 6 and 7 of the Evacuee Interest (Separation) Act 64 of 1951 and never formed part of the compensation pool as required under the Displaced Persons (Compensation and Rehabilitation) Act 44 of 1954 and that the deceased respondent was a party to the said proceedings and in such circumstances, there could not possibly be any sale in favour of the deceased respondent under the law. He has further alleged that the Regional Settlement Commissioner, New Delhi, without any authority transferred the property and it was established on record that the orders for the resale of the property became final and this record maintained by the officers working in the Ministry of Rehabilitation, amply proved the case of the appellant and that the respondent was in collusion absolutely with the office of Regional Settlement Commissioner/Managing Officer who had issued her some letters without any proper justification or reasons and it was prayed that the suit of the respondent may be dismissed and it may be held that the respondent was neither the owner of the property nor there was any valid, legal sale or a sale with 11 jurisdiction within the provisions of the Act or the Rules framed thereunder and that the appellant was the owner of the superstructure.
7. On the basis of said pleadings, the then Ld. Trial Judge, vide his order dated 10.1.1967, framed the following issues:
1. Whether the plaintiff is owner of the premises in dispute? (OPP)
2. Whether the defendant is in unauthorized possession of the suit premises? (OPP) (Onus objected to)
3. Whether defendant is a tenant of the suit premises at a monthly rent of 8.50/-? (OPD)
4. Whether the plaintiff is entitled to recover any damages or compensation on account of wrongful use and occupation from the defendant and if so at what rate and for what period? (OPP)
5. Whether the sale of the property in favour of the plaintiff is void and illegal as pleaded? (OPD)
6. Whether the plea covered by 12 issue no.5 can be taken in this case?
(OPD)
7. Relief.
8. The Ld. Trial Court has decided the issue no.1 and 5 taken together, issue no.2 and 3 taken together and issue no.4, 6 and 7 separately and all the issues have been decided in favour of the deceased respondent and against the deceased appellant.
9. I have heard Ld. Counsels for both the parties and perused the Trial Court Record also.
10. I shall be dealing with all the said issues in chronological order in this appeal and shall appreciate the arguments advanced on behalf of both the parties, the evidence on the record in that order only.
11. The issue no.1 was to the effect as to whether the deceased respondent was owner of the premises in dispute and onus to prove the same was on the deceased respondent who was plaintiff before the trial court. The framing of this issue in itself presupposes its effect. The first effect is that if the respondent was the owner of the premises, she was entitled to bring the suit before the Ld. Trial Court and if she 13 was not the owner of the premises in dispute, she was not at all entitled to bring the suit against the deceased appellant.
12. Let me now revert back to the evidence on the record which the deceased respondent has proved to show her ownership of the disputed premises. Her attorney has appeared in the witness box as PW7 and has proved the Deed of Conveyance as Ex. PW5/1 and both the PW5, the official from the office of Regional Settlement Commissioner as well as PW7 have deposed that it was a sale deed but the document is titled as Deed of Conveyance. PW7 has further proved the mutation of the property in the name of the deceased respondent with the M.C.D vide document Ex. PW7/5. It is the case of the deceased respondent in the plaint that Deed of Conveyance was executed on 31.12.1963 in her favour for and on behalf of the President of India and was duly registered. PW5, the official from the office of Regional Settlement Commissioner, Delhi, has further deposed that the suit property was an evacuee property and it later on vested in Custodian and the same was acquired by Union of India under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act 1954 (hereinafter 14 referred to as Act of 1954 for reference). He has further deposed that the property was later on auctioned and Mst. Fatma Sultana (deceased respondent) purchased the same in auction. However, in his cross examination he has admitted that there is no notification with regard to the occupants of the suit property in the file and that there are separate survey report of the property no. 739 and 740 and the old corresponding number of the said two property was 436 and that there was a copy of the sale deed with regard to the property no.739 on the record in which it was mentioned that occupant of house no. 740 would have the right to access through house no.739 which was issued in the name of the deceased respondent. He could not tell as to whether the said sale deed was issued as a co-sharer or not. He could not tell as to whether the property no. 739 and 740 were composite property or not. He replied that the sale deed with regard to the property no.739 was issued on 9.12.1960. He admitted it as correct that the suit property was not auctioned but otherwise transferred to the plaintiff. He could not tell as to whether the suit property was transferred by negotiation. The PW5 was put a specific question to the effect that the 15 transfer of the suit property was effected in favour of the deceased respondent as per recommendation and persuasion of Shri Sikander Bakht, the then member of Metropolitan Council and member of Delhi Pradesh Congress Committee. This question was disallowed by the Ld. Trial Court as there was detail about Shri Sikander Bakht on one copy of noting and the witness could not refer the same. PW5 further could not tell from the record who passed the order regarding transfer. He could not tell the name and designation of the officer passing the order.
13. PW7, the attorney of the plaintiff, specifically replied that he knew Shri Sikander Bakht, General Secretary of Delhi Congress Committee, who helped in getting the property no.9/740 and he could not say as to whether he approached the Government so that this property be given to the deceased respondent.
14. On the other hand, the defendant has also produced official witnesses out of which DW8 throws light as to how the conveyance deed Ex. PW5/1 came to be executed in favour of the deceased respondent and in this regard he has produced the copy of the note dated 23.11.1963 as Ex. DW8/1 16 and copy of the order dated 27.11.1963 as Ex. DW8/2 and in his cross examination, order of the Regional Settlement Commissioner Sh. O.N. Vohra was also exhibited by him as Ex. DW8/3.
15. I have gone through the documents Ex. DW8/1 to Ex. DW8/3 which are noting sheets in continuation and in effect it is one and the single document and since this document shall also be helpful in appreciating all the issues, it is necessary to reproduce the same as below:
"True copy of noting on C.S.C' s office file No.43(12)/Comp & Prop/62.
......
Property No. IX/740 (New) about which Shri Sikander Bakht has written to Honourable Minister is an acquired evacuee property and is in possession of one Shri Mohd Usman. The access to this property is through property No.IX/739(New) which was purchased by Shrimati Fatima Suleman (it should have been Sultana) in auction held under the orders of the Competent Officer. The sale deed was issued to her on 9.12.60 with the clear stipulation that the occupant of H.No. IX/740(New) will have the 17 right to access through H.No. IX/739. The latter property was put to auction on 19.10.1963 when it fetched the highest bid of Rs.6000/- against the reserve price of Rs.9827/- (it should have been Rs.9873/-). The bid was rejected as it was below the reserve price. The property will be included in the next sale programme which will commence after 9th January, 1964.
2. Shrimati Fatima Sultan approached us for transfer of property No. 740 to her on the ground that it was not an independent property and was situated inside property No.739 already purchased by her. She also contended that the property was situated in a predominantly Muslim area and that it should be transferred to her according to the policy of the Government. The matter was enquired into and it was found that the property was not situated in a predominantly Muslim area and therefore, the question of its transfer to her did not arise. The property cannot be transferred to her by negotiated sale as she is not in possession of it.
3. The occupant, Shri Mohd Usman s/o Mohd. Sadiq, has also requested for regularisation of his occupation and transfer 18 of the property to him on the ground that he is a member of the Backward class and is the sole occupant of the property. He also contended that the property was situated in a predominantly Muslim area. This property was originally occupied by Mohd Usman s/o Mohd. Ismail who left the property in January, 1959 and thereafter the property came to be occupied by Shri Mohd Usman son of Mohd Sadiq. He is an unauthorised occupant and has not paid any rent to the Department. In the circumstances, the property cannot be transferred to him and the petition made by him u/s 33 of the Displaced Persons (C&R) Act, 1954 which is at page 27-28/C is, therefore, liable to be rejected.
4. The request of Smt. Fatima Sultan for transfer of property to her was examined by OSD(J), Shri Tara Chand Aggarwal, in his note dated 5.8.63 at page 20/ante when he observed that the only point in favour of transfer of the property to her by negotiation was that there is right of passage over her house to the property in dispute and he accordingly suggested that the property might be transferred to her at the reserve price of 19 Rs.9873. Shri Sikander Bakht was requested to intimate whether she was prepared to purchase the property at the above price and since there was no response either from Shri Sikandar Bakhat or Smt. Fatima Sultan, H.M. desired that the property should be put to sale. In this connection please see H.M.'s minutes dated 17.8.63 at page 21/ante.
5. The reserve price of the property is Rs.9,873/-. It fetched the highest bid of Rs.6,000/- in auction held on 19.9.63. The bid was, however, not accepted. The property is still available for transfer to Smt. Fatima Sultan if she is prepared to pay the reserve price of Rs.9873/-. If approved, we may again extend the offer to her.
Sd/Gobind Ram 23.11.63 ASC(P) Dy.C.S.C.(P) Sd/- H.R. Nair 26.11.63.
P.S. To HM spoke to me about this a few days ago. He may see. We may send a written offer to the lady and if she does not reply within 7 days, the property will again be put to auction. From what I can see, however, she is 20 not willing to pay the reserve price.
Sd/ N.P Dube 27.11.63 Shri Sikandar Bakhat told me that Smt. Fatma Sultana is prepared to pay Rs.9873/- for the property. The money will be deposited within two days.
Sd/- V.K. Harurey 19.12.63.
CSC
Sd/- N.P. Dube
19.12.63
ASC(P)/RSC/Shri Vohra
MO to see for compliance. He should
keep on his file relevant copy of noting.
Thereafter this file is to be returned.
Sd. O.N.Vohra 20.12.63
True Copy Sd. Bishan Lal M.O. 27.12.63"
16. On the basis of the said evidence on record Ld. Trial Court, with regard to issue no.1, has come to the conclusion that it was admitted by the deceased appellant that the deceased respondent was the owner of the premises in dispute but it was asserted that the sale of the same in her 21 favour was illegal as the property was never put to auction. It has further been concluded by the Ld. Trial Court that it was admitted by the parties that the property was transferred in favour of the deceased respondent vide the sale deed dated 13.12.1963, the copy of which is Ex. PW5/1. It was further concluded by the Ld. Trial Court that although Section 20 of the Act of 1954 empowers the Managing Officer or Managing Corporation alone to transfer the property out of compensation pool by sale, lease, allotment or by transfer of shares or in any other way which may be prescribed but it does not bar any other official from transferring the property out of compensation pool and that the word "may" has been used in the section and not "shall" and accordingly, it can be interpreted that if the transfer of the property has been made by the person other than the Managing Officer or Managing Corporation, as provided in Section 20 of the said Act, then the same would not be illegal.
17. Ld. Counsel for the appellant has argued that there was no basis for the Ld. Trial Court to record that the deceased appellant ever admitted the deceased respondent as the owner of the suit property and that the property was not 22 sold to the deceased respondent by the appropriate authorities as mentioned in Section 20 of the said Act of 1954 and that the conveyance deed in itself does not create any right, title or interest in favour of the deceased respondent so as to be called the owner of the property and entitled to file the present suit.
18. With regard to the first contention of the Ld. counsel for the appellant that there was no basis for the Ld. Trial Court to reach to the conclusion that it was admitted by the deceased appellant that the deceased respondent was the owner of the property, I am in complete agreement with the Ld. counsel for the deceased appellant because it was due to the mixing of issue no.1 and 5, which were decided together, that the Ld. Trial Court misdirected itself and reached to the said conclusion. If he would have dealt the issue no.1 independent of issue no.5 then there would not have been any justification for arriving at the said conclusion by the Ld. Trial Court. Whatever contention was raised in issue no.5 was in the alternative and it was the case of the defendant/ appellant in his written statement also that even if the sale of property is there in favour of the deceased respondent, the 23 same is void and illegal. There is no bar in raising the alternative pleas or even contradictory pleas so long as the same are not killing each other or contradictory to each other or cannot co-exist together. Right from the written statement up to the time when the defendant/appellant appeared as DW10 and also at the time of final arguments before the Ld. Trial Court, it was the plea of the present appellant throughout that the deceased respondent was not the owner of the property.
19. With regard to the second contention that the Conveyance Deed Ex.PW5/1 in favour of the deceased respondent was not made according to the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (in short the Rules of 1955 shall be used for further reference) and the order for transferring the property to the deceased respondent was passed not by the Managing Officer or the Managing Corporation, as provided in Section 20 of the Act of 1954, the Ld. Trial Court has reached to the conclusion that in Section 20 of the Act of 1954 the word "may" has been used and not "shall" and it could be interpreted that even the property could be transferred by any person other than the 24 Managing Officer or Managing Corporation.
20. I have gone through the law laid down in this regard by the Superior Courts and I am of the considered opinion that this finding of the Ld. Trial Court was in utter disregard to the law laid down in this respect. The reference can be made of a judgment of the Hon'ble Punjab High Court in the case titled Mangal Sain Vs. The Chief Settlement Commissioner, New Delhi and others reported as AIR 1960 Punjab 626 wherein the Hon'ble High Court has held in para 6 that "under Section 20 (Act of 1954) a transfer can only be made by the Managing Officer or the Managing Corporation and that the transfer by the Regional Settlement Commissioner is no transfer in the eye of law and it cannot confer any right whatever on the transferee and that the order passed by the Managing Officer is subject to revision under Section
24."
21. Further reference can be made to a judgment of the Hon'ble High Court of Delhi titled Union of India and another Vs. The Wearwell Cycle Co. (India) Ltd. and 25 another reported as AIR 1986 Delhi 5 wherein a Division Bench of the Hon'ble High Court of Delhi held that the decision to transfer a property forming part of the compensation pool made in exercise of the power under Section 20 of the Act read with Rule 87 of the Rules framed thereunder could only be by the statutory authorities under the Act and non-making thereof in the name of the President could not be stated as in breach of Article 299 of the Constitution.
22. The said proposition of law laid down by the said two Hon'ble High Courts go to establish that the word "may" used in Section 20 of the Act of 1954 does not confer power on any other person except the Managing Officer or Managing Corporation to transfer the property.
23. Besides the said law laid down by the said Hon'ble High Courts, PW5, the Officer of the office of Regional Settlement Commissioner, New Delhi has specifically admitted in his cross-examination that the suit property was not auctioned but otherwise transferred to the plaintiff. When he was given a specific question to answer as to whether the 26 property was transferred on the recommendation and persuasion of Shri Sikander Bakht, the then member of Metropolitan Council and member of Delhi Pradesh Congress Committee, the said question was disallowed by the Ld. Trial Court. The PW5 could not tell from the record as to who passed the order regarding transfer. He could not tell the name and designation of the officer passing the order. On the other hand, the DW8 has specifically answered that the case was referred to Sh. O.N. Vohra, the then Regional Settlement Commissioner, who passed the order Ex.DW 8/3. He further answered that there is a report of Sh. Lachman Dass, Managing Officer dated 26.12.1963 about the deposit of money and for return of the file to the Chief Settlement Commissioner Office.
24. From the said evidence on the record it is quite clear that this decision of transferring the property in the name of the deceased respondent was never taken by the Managing Officer at all and if we go by the document Ex.DW8/2 and Ex.DW8/3, the decision seems to have been taken by Sh. V.K. Harurey and the file was sent to the Chief Settlement Commissioner Sh. O.N. Vohra who ordered for looking at the 27 compliance and to return the file to him again. It seems that no authority while taking this decision of transferring the property to the deceased respondent vide Conveyance Deed Ex.PW5/1, was acting as such the authority as mentioned in Section 20 of the Act of 1954.
25. Now the question before me is as to whether the execution of the Conveyance Deed Ex.PW5/1 was in itself sufficient to declare the deceased respondent as the owner of the suit property and that whether on the basis of the said Conveyance Deed she was entitled to bring the suit against the present appellant even if he has to be taken as a trespasser, for the sake of argument, though not holding so.
26. I have carefully gone through the Conveyance Deed Ex.PW5/1 which mentions that the Vendor i.e. the President of India was seized and possessed of the land, hereditaments and premises as shown in Schedule I and the vendor has agreed with the Purchaser i.e. the deceased respondent, for the absolute sale to her of the said land, hereditaments and premises intended to be hereby granted at or for the price of Rs. 9873/- paid to the Vendor by the Purchaser in cash and by adjustment against the compensation payable under the Act 28 of 1954 to the Purchaser. The property number was shown as IX/740 (new) Kabari Bazaar, Jama Masjid, Delhi.
27. From the bare reading of the said Conveyance Deed Ex.PW5/1, it is nowhere mentioned that this property was either sold by way of auction or by way of tender as provided in Rules 90 and 91 of the Rules of 1955 nor the person executing the Conveyance Deed nor the Sub Registrar who registered the document was declaring anywhere that the person executing the Conveyance Deed was authorized by the Managing Officer to execute the Deed of Conveyance.
28. The most glaring feature of this transfer in favour of the deceased respondent was that no sale certificate was ever issued in her favour as provided under Rule 90(15) of the Rules of 1955 which commands that when the purchase price has been realised in full from the auction purchaser, the Managing Officer shall issue to him a sale certificate in the form specified in Appendix XXXII or XXXIII as the case may be and that a certified copy of the sale certificate shall be sent by him to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the property to which the certificate relates is situated. In the absence of the 29 sale certificate even if this Deed of Conveyance might have been issued, the same does not create any right, title or interest in the property in favour of the deceased respondent and she cannot bring this suit even on the basis of said Conveyance Deed and the Deed of Conveyance has been executed in utter disregard of not only Section 20 of the Act of 1954 but the said Rule 90(15) of the Rules of 1955.
29. The first case to be cited in this regard with regard to my said conclusion is the judgment of the Hon'ble Supreme Court in the case titled M/s Bombay Salt and Chemical Industries Vs. L.J. Johnson and others reported as AIR 1958 Supreme Court 289 wherein a constitution bench of the Hon'ble Supreme Court held in para 10 as follows:
"It is clear from the rules and the conditions of sale imposed under R.90(3) and set out in the notice of sale that the declaration that a person was the highest bidder at the auction does not amount to a complete sale and transfer of the property to him. The fact that the bid has to be approved by the Settlement Commissioner shows that till such approval which the 30 Commissioner is not bound to give, the auction-purchaser has no right at all. It would further appear that even the approval of the bid by the Settlement Commissioner does not amount to a transfer of property for the purchaser has yet to pay the balance of the purchase-
money and the rules provide that if he fails to do that he shall not have any claim to the property. The correct position is that on the approval of the bid by the Settlement Commissioner, a binding contract for the sale of the property to the auction-purchaser comes into existence.
Then the provision as to the sale certificate would indicate that only upon the issue of it a transfer of the property takes place."
30. The next reference in this regard is the judgment of Hon'ble Allahabad High Court in the case titled Manohar Lal Vs. Rent Control and Eviction Officer, Bareilly reported as AIR 1959 Allahabad 388 wherein the Hon'ble High Court in para 5 and 6 held as follows:
"A sale under S.20 of the Displaced 31 Persons (Compensation and Rehabilitation) Act does not become final and the auction purchaser does not become the owner of the property until the sale certificate under R.90(15) is issued in his favour. Therefore, where a house was admittedly evacuee property vested in the Custodian and on its sale under S.20, the sale certificate had not been issued the mere fact that the highest bid of the purchaser was approved by the Settlement Commissioner, or the fact that the auction purchaser had entered in the occupation of the house would not be sufficient to cease that house from being evacuee property, and the auction purchaser could not claim to be the owner of the house."
31. The same view was adopted by the Hon'ble High Court of Delhi although it utilized the said view in positive terms thereby declaring the suit of the auction purchaser as filed within the period of limitation. The case before the Hon'ble High Court of Delhi was tilted Dr. Bhargava & Co. and another Vs. Sh. Shyam Sunder Seth reported as AIR 32 1988 Delhi 349 wherein a Division Bench of the Hon'ble High Court has held that where the sale has taken place under Section 20 of the Act of 1954, the purchaser becomes owner only from the date when sale certificate is issued in his favour and not earlier, though it takes effect from the date his bid was accepted.
32. The other view of the matter is that as per the own case of the deceased plaintiff/respondent, the property in question was a composite property and was part of property no. 739 and it was the case of all the official witnesses who appeared as witnesses either for the plaintiff/respondent or for the defendant/appellant and it is also mentioned in the noting Ex.DW8/1 that access to the property no.740 is through property no. IX/739 which was purchased by the deceased respondent in auction held under the orders of the Competent Officer with a clear stipulation that the occupant of H.No. 740 would have the right to access through property no.739. If this was the situation then I fail to understand as to how this property could be acquired and placed under compensation pool because Rule 93 of the Rules of 1955 33 specifically mentions that the Central Government may acquire any property declared or deemed to have been declared as evacuee property under the Administration of Evacuee property Act, 1950 except the properties enumerated in clause (i) to (viii) in the said Rule. Rule 93(5) mentions that any property which is composite property within the meaning of the Evacuee Interest (Separation) Act, 1951 cannot be acquired as such and this is a specific objection of the deceased appellant in his written statement. The Evacuee Interest (Separation) Act, 1951 in Section 2(d) defines the "composite property" as 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 and (i) in which the interest of the evacuee consists of an undivided share in the property held by him as a co-sharer or partner of any other person, not being an evacuee; or (ii) in which the interest of the evacuee is subject to mortgage in any form in favour of a person, not being an evacuee; or (iii) in which the interest of a person, not being an evacuee, is subject to mortgage in any form in favour of an evacuee; or (iv) in which 34 an evacuee has such other interest jointly with any other person, not being an evacuee, as may be notified in this behalf by the Central Government, in the Official Gazette. If this was a composite property then it could not have been acquired as per Rule 93 of the Rules of 1955 and no one can pass a better title than he himself possesses and as such the authorities as mentioned in the Act of 1954 would not have transferred this property in favour of the deceased respondent as the authorities were themselves could not have acquired the said property so as to form the same as part of the compensation pool. I am fortified in my said view by a judgment of the Hon'ble Allahabad High Court titled Smt. Masoom Banoo Vs. Hari Singh and others reported as AIR 1974 Allahabad 462 wherein Hon'ble Division Bench of the said High Court held that composite property could not be acquired by the Central Government and could not be validly transferred to a person by the Government and that the sale would be without jurisdiction and void.
33. Further, I have also noticed a strange conclusion 35 reached by the Ld. Trial Court while deciding issue no.1 and 5 together, at page 5 in para 9 which was to the effect that in the present case, the suit property was treated not as an independent property since it was situated inside the property no.739 and that this order was perfectly valid under Rule 22 of the Displaced Persons Act 1954.
34. I fail to understand as to what was in the mind of the Ld. Trial Court. If I take it as Section 22 of the Act of 1954 then it provides for appeals to Chief Settlement Commissioner and as such it becomes irrelevant and makes no sense. If I take the same as Rule 22 of the Rules of 1955 which mentions about classes of acquired evacuee property which may be allotted and same is reproduced as below:
"22. Classes of acquired evacuee property which may be allotted - The following classes of acquired evacuee property shall ordinarily be allotted, namely :
(a) any residential property in the occupation of a displaced person, the value of which does not exceed fifteen thousand rupees :
(b) any shop in the occupation of a 36 displaced person, the value of which does not exceed fifteen thousand rupees;
(c) any industrial concern in the occupation of a displaced person, the value of which does not exceed fifty thousand rupees;
Explanation - No property referred to in clause (a) or clause (b) shall be allottable, if it is in the occupation of two or more person, whether any or all of them be displaced persons or not."
35. From the bare reading of the said Rule 22 of the Rules of 1955, it was mentioning about allotment of the evacuee properties but we are not concerned here in the present case regarding allotment and even if by any stretch of imagination an analogy is to be drawn from the said Rule and the word "allotment" is to be taken as word "transfer or sale" of the property then in the present case the transfer of the property or the allotment of the property, for the sake of argument, is in utter violation of the explanation attached to the said Rule 22 because admittedly at the time of alleged conveyance of the property in question and if properties no. 739 and 740 are to be treated as one and the same property, then admittedly 37 property no.739 was in occupation of the deceased respondent and the very filing of this suit go to establish that property no.740 was in occupation of some other person. Hence, from my said discussion, the holding of the Ld. Trial Court on issue no.1 to the effect that deceased respondent was the owner of the property is hereby set aside and accordingly, the issue no.1 is decided in favour of the deceased appellant and against the deceased respondent.
36. Let me now examine the issue no.2 which is to the effect as to whether the deceased appellant was in unauthorized possession of the suit premises and the onus to prove the said issue was on the deceased respondent and the Ld. Trial Court has decided the said issue along with issue no.3 against the deceased appellant and in favour of the deceased respondent but I am considering the said issue independent of issue no.3.
37. It seems that the onus to prove issue no.2 was objected to on behalf of deceased respondent. In my considered opinion if it was to be proved by the deceased appellant as per the objection, then it amounts to saying that the deceased appellant has admitted himself to be 38 unauthorized occupant. If it was so, then what was the need of the suit itself. It is well established proposition of law that one who asserts a fact or objection, must prove it. It was the deceased respondent who was asserting that the deceased appellant was an unauthorized occupant in her plaint as well as replication, then as a common sense also, she must prove the same, because the deceased appellant has claimed himself to be the tenant in the premises in question. Hence, the objection is overruled.
38. Let me examine now what is the evidence on the record produced on behalf of the deceased respondent with regard to the unauthorized possession of the deceased appellant. After the execution of the said Conveyance Deed, the deceased respondent wrote a letter Ex.D1 dated 3.7.1964 to the Managing Officer, Office of the Regional Settlement Commissioner, New Delhi, wherein an information was sought by the deceased respondent through her attorney regarding names of the unauthorized persons for which she might get rent from them and it was requested that necessary notices be forwarded to the said unauthorized persons under information to her. In response to the said 39 letter, the Managing Officer of the said office wrote a letter dated 4.7.1964 which is Ex.PW5/2 mentioning that one Mohd. Usman son of Mohd. Siddique (deceased appellant) was an unauthorized occupant and as such she (deceased respondent) was asked to deal directly with him. The letter Ex.PW5/2 was never forwarded to said Mohd. Usman son of Mohd. Siddique. Further, the deposition of PW1 namely Mohd. Usman son of Mohd. Ismail mentions that the deceased appellant asked for some accommodation to put his luggage in the property in question and he got the house demolished through corporation and the deceased appellant asked the said witness to remove his luggage for removal of Malba and accordingly, the witness removed his luggage and thereafter the deceased appellant did not allow him to keep his luggage and PW1 has claimed that he had lived in the house since 1930 to 1960 and it was owned by one Abdul Qasim and after his death one Japanwala was looking after the house after 1947.
39. In his cross-examination, the PW1 could not tell as to when custodian got the property although it remained in his possession. He further answered that the whole house except 40 the wall was demolished and the deceased appellant had put roof on the wall and also affixed almirah in the wall and there was no bathroom, kitchen but there was one kolki and at the relevant time of deposition there was one room. PW2 is again a public witness who deposed that PW1 Mohd. Usman used to live in it for number of years and the deceased appellant was occupying the house for the last 8-10 years and that one Muslim was the owner of the property. However, in his cross-examination, PW2 has replied that the house was demolished by the defendant/appellant as there was no proprietor and hence, nobody objected and that the deceased appellant has constructed one room and also constructed the side wall and one room below was being used as godown and that the PW1 was not living in the house for 7-8 years and that the deceased appellant got the house from PW1 first for keeping goods but he did not vacate the same afterwards. PW4 is again a public witness who deposed that Haji Mohd. Ismail, since deceased, used to live in the property in question and after his death his son Mohd. Usman started living in the same and at the time of deposition the deceased appellant was living there for the last 6 years and that the 41 deceased appellant was brother-in-law of Mohd. Usman but he could not tell as to how the deceased appellant came in possession. Further, PW5, the official from the office of Regional Settlement Commissioner, New Delhi, has deposed that according to survey report Mohd. Usman son of Haji Ismail was shown as occupant and that Mohd. Usman son of Mohd. Siddique (deceased appellant) was not shown as occupant and the letter Ex.PW5/2 was signed by Sh. Bishan Lal, Managing Officer. However, in his cross-examination, he replied that the old number of property no.739 and 740 was 436 and as per report of fresh inspection dated 30.12.1958 the property was lying collapsed and was in occupation of nobody and the survey report referred by him pertained to the year 1953. Thereafter, the attorney of the deceased respondent appeared as PW7 who also deposed that deceased appellant was a trespasser to whom a notice Ex.PW7/2 was given but in his cross-examination, he could not tell the date as to when the deceased appellant became the trespasser.
40. On the other hand, some of the official witnesses produced by the deceased appellant have also declared the deceased appellant as trespasser. DW3, who was a Field 42 Inspector of the office of Regional Settlement Commissioner, in his cross-examination has replied that name of father of Mohd. Usman was not given in the report dated 30.12.1958 and when he visited the property nobody was in occupation of the premises in dispute and the entire house was collapsed. DW6 is another official from the office of Regional Settlement Commissioner, New Delhi, who deposed that suit property was firstly surveyed in 1953 and rent was assessed but name of Mohd. Usman did not appear and that in survey report name of Mohd. Usman appeared and that no rent was paid by Mohd. Usman from September 1947 to February 1957 and that a show cause notice is issued to its unauthorized occupant and Assistant Custodian or the Managing Officer decides about the status of unauthorized occupant. He categorically admitted that no show cause or surrender notice was ever issued to Mohd. Usman son of Mohd. Siddique (deceased appellant). He further replied that after the collapse of the house in question rent was assessed at Rs.8 and 8 annas which was of land. He could not tell as to who was the owner of the superstructure. However, in his cross- examination, he has admitted that parentage of Mohd. 43 Usman was not shown in the survey report. There is no survey report in the name of Mohd. Siddique. He further replied that at the time of declaration of the property in question as Evacuee Property, a School Jama Ulma or Ismail were in possession. He further replied that parentage of Mohd. Usman was not shown in the reports made by him and his address was given as shop No. 9/473, New Kabari Bazaar, Jama Masjid, Delhi but he could not say as to whether the said address was of Mohd. Usman son of Mohd. Ismail or not and thereafter DW8 has produced the said record which is already reproduced by me above as Ex.DW8/1 to Ex.DW8/3 which also mentions at page 2 that occupant Mohd. Usman son of Mohd. Siddique(deceased appellant) as an unauthorized occupant and who did not pay any rent to the department. All the documents proved on record for showing the deceased appellant as an unauthorized occupant are nothing but self serving documents of the deceased respondent. Vide her letter dated 3.7.1964, Ex. D1, the deceased respondent specifically asked for information regarding names of unauthorized persons so that she may get rent from them and she further requested that necessary 44 notices be forwarded to the said unauthorized occupants also under information to her but in response to the same, vide letter dated 4.7.1964 Ex.PW5/2, the deceased appellant was declared an unauthorized occupant and instead of sending this information to the deceased appellant it was asked to the deceased respondent to deal directly with him. Similarly, in the document Ex.DW8/1, as reproduced above, deceased appellant was declared an unauthorized occupant but there is no mention in the same that the said information that deceased appellant was an unauthorized occupant was ever communicated to him or not. It is an admitted case in the cross-examination of DW6, the official of the office of Settlement Commissioner wherein it has been admitted by him that no show cause or surrender notice was ever issued to the deceased appellant. The law provides for dealing with the unauthorized occupants under Section 19 of the Act of 1954 and Sub clause (2) and (3) of Section 19 are reproduced below:
"S.19 Power to vary ..............
(2) Where any person, -
(a) has ceased to be entitled to the 45 possession of any evacuee property by reason of any action taken under sub-
section (1), or
(b) is otherwise in unauthorised possession of any evacuee property or any other immovable property forming part of the compensation pool, he shall, after he has been given a reasonable opportunity of showing cause against his eviction from such property surrender possession of the property on demand being made in this behalf by the managing officer or managing corporation or by any other person duly authorised by such officer or corporation.
(3) If any person fails to surrender possession of any property on demand made under sub section (2), the managing officer or managing corporation may notwithstanding anything to the contrary contained in any other law for the time being in force, eject such person and take possession of such property and may for such purpose' use or cause to be used 46 such force as may be necessary.
41. Sub clause (5) of Section 19 further provides for assessing the damages and claiming the same from the unauthorized occupant but admittedly no such action against the deceased appellant was ever initiated or proved on record on behalf of the deceased respondent and this is the reason that it can safely be concluded that the suit of the deceased respondent also suffered from the defect of non joinder of necessary parties i.e. the officials under the Act of 1954 so that the factum of unauthorized occupation of the deceased appellant could have easily been proved on the record.
42. I am surprised to see that the Ld. Trial Court in the impugned judgment has relied upon and referred to the survey reports but the survey reports or the extracts thereof were never produced or proved on the record on behalf of any of the parties. Mere verbal statement should not have been relied by the Ld. Trial Court in this regard particularly in view of the fact that some of the official witnesses have given a particular status of the deceased appellant in their statement which I shall be discussing while taking the issue no.3. For the said reasons, I am of the considered opinion 47 that the deceased respondent has miserably failed to establish on the record that the deceased appellant was a trespasser or unauthorized occupant or he was an unauthorized occupant to his/her knowledge. Hence, the finding of the Ld. Trial Court on the issue no.2 is hereby set aside and the said issue is decided in favour of the deceased appellant and against the deceased respondent.
43. With regard to issue no.3, which was to the effect as to whether deceased appellant was a tenant of the suit premises at a monthly rent of Rs. 8.50p., the onus to prove which was on the deceased appellant and the evidence on record was the two rent receipts Ex.DW6/1 and Ex.DW6/2, the deposition of DW6 and the deceased appellant himself. The deceased respondent also produced PW1 in this regard who claimed to be in occupation of the suit property w.e.f. 1930 to 1960.
44. The finding of the Ld. Trial Court on issue no.3 was to the effect that as per Section 2 of the Administration of Evacuee Property Act, 1950 (in short the Act of 1950) the definition of the "allotment" meant the grant by a person duly authorized in this behalf of a right of use or occupation of any 48 immovable evacuee property to any person but does not include a grant by way of lease. Further, the Ld. Trial Court relied upon the deposition of DW6 and official witnesses and held that DW6 had supported the case of the deceased respondent though he was produced by the deceased appellant. Further, the Ld. Trial Court relied upon the cross- examination of the deceased appellant as DW10 wherein he admitted that he never paid any rent to any person from 1947 to 1958 and the Ld. Trial Court concluded that he did not pay rent because he was not in possession of the property and as such he did not pay the rent to anybody. Ld. Trial Court further reached to the conclusion that as there were no letters received at the suit property prior to 1960, the deceased appellant failed to show his occupation and the deceased appellant also tried to take advantage of the same name as that of PW1 and came to the conclusion that deceased appellant was not a tenant. Ld. Trial Court has further discarded the receipts Ex.DW6/1 and Ex.DW6/2 since the same were issued "without prejudice to the rights of the parties" and as such a person even if holding the receipts could not claim himself to be a tenant. Further, the receipt 49 Ex.DW6/2 was discarded on the ground that there was some overwriting in the parentage of the deceased appellant and the Ld. Trial Court further came to the conclusion that the receipt actually was issued in favour of the previous occupant namely Mohd. Usman (PW1) but the deceased appellant got his parentage changed as that of his in order to prove the factum of tenancy.
45. Ld. Counsel for the deceased appellant has contended that if the two receipts were belonging to PW1 Mohd. Usman s/o Mohd. Ismail as to how then the signatures of the deceased appellant came on the receipt Ex.DW6/2. He has further contended that PW1 Mohd. Usman s/o Mohd. Ismail has categorically admitted that he never paid any rent to anybody during the time of his alleged occupation of the property in question. Ld. Counsel for the deceased appellant has further contended that the Ld. Trial Court has misread the deposition of DW6 and has adopted pick and choose method while reading the deposition of DW6 in order to arrive at the conclusion that the deceased appellant was an unauthorized occupant and particularly the last sentence of his cross-examination to the effect that according to record 50 the deceased appellant was never taken as tenant.
46. On the other hand, Ld. Counsel for the deceased respondent has argued that the said two receipts Ex.DW6/1 and Ex.DW6/2 were issued "without prejudice" and as such created no tenancy in favour of the deceased appellant and the Ld. Trial Court has rightly come to the conclusion that deceased appellant was never a tenant and a trespasser.
47. Although in the impugned judgment Ld. Trial Court has discussed the definition of "allotment" as given in Section 2 of the Administration of Evacuee Property Act, 1950 but held in para 15 of the impugned judgment that the definition of allotment as provided in Administration of Evacuee Property Act 1950 is not applicable to the facts of the present case because the deceased appellant was an unauthorized occupant and not an allottee as discussed above.
48. In my considered opinion, this is how the Ld. Trial Court misdirected itself. Although the Ld. Trial Court was right in holding that definition of "allotment" as provided in the Act of 1950 was not applicable to the present case but the Ld. Trial Court wrongly concluded that it was not applicable because the defendant/appellant was unauthorized occupant. 51 I have carefully gone through the said Act of 1950 and I am of the considered opinion that there was no occasion for the Ld. Trial Court to discuss the said aspect because the said finding of the Ld. Trial Court suggested that if the defendant/appellant would not have been in unauthorized occupation then he would have become an allottee. But the definition in Section 2 of the Act of 1950 mentions that an allottee is person who was given a right of use or occupation of any immovable evacuee property but does not include a grant by way of lease. I would have understood the said reference of the Ld. Trial Court if it was of the opinion that as the deceased appellant claimed himself to be a tenant, he could not be termed as an allottee. But again that would amount to saying that under the Act of 1950 no evacuee property can be transferred by way of lease which is incorrect proposition of law in view of Section 10(2)(o) which provides that the Custodian of Evacuee Property may transfer in any manner whatsoever any evacuee property. Further, in Section 10-A there is power to recover rent or damages in respect of evacuee property vested in the custodian. Further, in Section 12 of the Act of 1950 there is a power vested in the 52 Custodian for cancellation of any allotment or termination of any lease or amending the term of any lease or agreement under which any evacuee property is held or occupied by a person irrespective of allotment, lease or agreement was granted or entered into before or after the commencement of the Act. These provisions go to show that the said aspect of the matter as to whether the deceased appellant was an allottee or not should not have been gone into by the Ld. Trial Court.
49. Coming to the rent receipts Ex.DW6/1 and Ex.DW6/2, the said rent receipts have been issued by the office of the Regional Settlement Commissioner(Management Wing), New Delhi. The receipt's number, dates, amount are mentioned in the receipts and noticeable feature is that numbers of previous rent receipts have also been mentioned in the said rent receipts and date of the said previous rent receipts is also mentioned. The rent receipt Ex.DW6/2 admittedly bears the signatures of the deceased appellant. The rate of rent was Rs. 8.50p. with regard to the property no. IX-436/740.
50. I find that on receipt Ex.DW6/1, the name of the person from whom the rent was received is mentioned as "Sh. 53 Mohd. Usman s/o Mohd. Sadiq". There is no grudge of overwriting, cutting etc with regard to the receipt Ex.DW6/1, argued before me. The receipt Ex.DW6/2 is again mentioning the name of the said person as "Sh. Mohd. Usman s/o Mohd. Sadiq". It is the receipt Ex.DW6/2 which has been agitated by the parties before me that there was a cutting or overwriting in the name of the parentage of Mohd. Usman. From a plain reading, I could find that Mohd. Sadiq is clearly legible and it seems that there was the spread of ink in writing the words "Mohd. Sadiq". One markable feature is that the spellings of the word "Mohd. Sadiq" in both the receipts are the same. The formation of the word "Mohd." prefixed to "Usman" and "Sadiq", to a naked eye, is clearly establishing that it was written by one and the same person in Ex.DW6/2. The formation of the letter "M" is also identical in the word "May", one of the months for which the rent was paid and proving that author of the word "May" and the word "Mohd." is one and the same person. It further seems that as there was spread of ink or fault with the pen that once again the months "May" and "June" have been written on the receipt Ex.DW6/2. The overall impression of the receipts is 54 that the same had been issued in a professional and departmental manner and there is nothing to suggest any fabrication or forgery with regard to the said rent receipts.
51. Coming to the deposition of DW6, in his examination- in-chief he deposed that the suit property was firstly surveyed in 1953 and rent was assessed but name of Mohd. Usman did not appear and that in survey report the name of Mohd. Usman appeared and that he was well conversant with the procedure of his office and that the property was declared evacuee on 27.4.1949 and that according to the report of Finance and Account Officer, letter dated 31.5.1957, no rent was paid by Mohd. Usman from September 1947 to February 1957 and that arrears of Rs. 1966/50p. were shown against his name up till 28.2.1957. He further deposed that a show cause notice is issued to its unauthorized occupant and Assistant Custodian or the Managing Officer decides about his status. He further admitted that no show cause or surrender notice was ever issued to Mohd. Usman s/o Mohd. Siddique. He further deposed that as per report of Field Inspector, the suit premises was lying collapsed in 1958 and Mohd. Usman was in occupation in 1958 and that after the 55 collapse the rent was assessed as Rs. 8/8 annas which was of land. He could not tell as to who was the owner of the superstructure. He further deposed that damages are recovered from unauthorized occupant. He further stated on Oath that Ex.DW6/1 and Ex.DW6/2 (the rent receipts) were issued by his office and that he had brought the rent demand and collection register from 1960 to 1963 and that Mohd. Usman has paid rent who applied for a transfer by applications dated 2.1.1962, 6.1.1962, 27.2.1962 and 10.12.1962 and that the copy of the application dated 6.1.1962 is Ex.DW6/3. He further deposed that according to the report of Gazette Notification, Conveyance Deed was issued on 31.12.1963 to Fatima Sultana and that they (the department) could not take any action against the unauthorized occupant after the issuance of the Conveyance Deed.
52. In his cross-examination, DW6 replied that there is no Act or Rule prohibiting action being taken against the unauthorized persons but there are restrictions to that effect which he had not brought. He admitted that parentage of Mohd. Usman has not been shown in the survey report. He 56 further answered that there was another survey report showing Mohd. Usman as in possession. He further answered that there was no survey report in the name of Mohd. Siddique. He further replied that at the time of declaration of the property as evacuee, School Jama Ulma or Ismail were in possession. He further answered that according to rent register the number of the property number 739 and 740 was earlier as 436 but he could not say about its correctness. He could not say as to whether in receipt Ex.DW6/2 the parentage of the defendant/appellant was overwritten or not. He could not say as to whether in fact it was overwritten at mark A in Ex.DW6/2. He further replied that Ex.DW6/1, the receipt was issued without prejudice to the rights and they (the department) issued receipts in this manner always. He could not tell as to who issued the receipt Ex.DW6/1. He further replied that it was ordered that Rs. 8/8 annas be recovered from Mohd. Usman as damages or action be taken against him as unauthorized occupant and that one Mukh Chand had made the report who was since working in the office but the parentage of Mohd. Usman was not shown in the reports made by him and his address was 57 given as shop No. 9/473, New Kabari Bazaar, Jama Masjid, Delhi but he could not say as to whether the said address was of Mohd. Usman s/o Mohd. Ismail or not and finally he answered that according to the record, the defendant/appellant was never taken as tenant.
53. From the said deposition and the document Ex.DW6/3, I fail to understand as to how the Ld. Trial Court has reached to the conclusion that DW6 had supported the case of the deceased respondent. Ex.DW6/3 is admittedly an application of the deceased appellant whose name and parentage is mentioned as Mohd. Usman s/o Mohd. Sadiq in the said application and as admitted by DW6 that the said application was moved by the same person for transfer of the property in his name to whom the rent receipts Ex.DW6/1 and Ex.DW6/2 were issued. He further deposed about the arrears of rent against the said person. By proving the said application Ex.DW6/3, on which no cross-examination was made on behalf of the deceased respondent, the DW6 has not only corroborated the issuance of the receipts Ex.DW6/1 and Ex.DW6/2 but also established the identity of the person who was the tenant in the premises in question and the same was 58 undoubtedly the deceased appellant. In the last sentence when the DW6 says that according to record the deceased appellant was never taken as tenant, there was no request on the part of the deceased respondent to prove that record as per law and no effort was made to get the said record produced before the court. Thus, reading the said two receipts and the letter of the deceased appellant Ex.DW6/3 and the deposition of DW6, go to establish beyond reasonable doubt that it was the deceased appellant who was a tenant in the premises in question and no doubt he was in arrears of rent.
54. Regarding the contention of the Ld. Counsel for the deceased respondent that the rent receipt Ex.DW6/1 was issued without prejudice to the rights of the parties, I have reproduced almost the entire deposition of DW6 in which he says that the department used to issue the rent receipts in this manner always. The said answer go to establish that DW6 has no reason to state as to why the rent receipts were being issued without prejudice.
55. I have tried to read the stamp put on Ex.DW6/1 which is illegible in part and whatever part is illegible, I have left 59 the same blank in reproducing the said seal relating to without prejudice as below.
"The payments and acceptance of the amount is without prejudice and shall in no way ......... the status of the contracting parties ............ or legal aspect."
56. Although the said missing words are not giving any rational construction of the said sentence but one thing can be ascertained from the said seal that it was the payment and acceptance of the amount which was without prejudice and shall confer no status on the contracting parties. This aspect of "without prejudice" can be interpreted in various ways. One of the reasons mentioned for issuing such a receipt with such words is mentioned in Section 29 of the Act of 1954 itself which provides for special protection of the tenants under the Act of 1954 without following the procedure prescribed in the said provision of law. The other interpretation may be given to the words "without prejudice" which is provided in Section 19 of the Act of 1954 which provides the power to vary or cancel the lease or allotment of any property acquired under 60 the Act. But unless and until the requirements mentioned in Section 19 and 29 of the Act of 1954 are fulfilled, a person continues to be a tenant as such.
57. The other conclusion of the Ld. Trial Court that no letters were received at the suit premises in the name of the deceased appellant has been successfully explained by the deceased appellant in his deposition as DW10 wherein he has categorically answered that he did not get any letter at suit premises from 1947 to 1960 because he had been receiving the same at the shop address and there was nothing to disbelieve him on this account as it was not the case of the deceased respondent that the deceased appellant was not having a shop separate from the suit property. The remaining finding of the Ld. Trial Court based upon the deposition of PW5, the official witness, were based upon survey report and admittedly the survey reports were never produced and proved on the record.
58. In view of my said discussion, I am in complete agreement with the Ld. Counsel for the deceased appellant that it was the deceased appellant who was the tenant in the premises in question under the very same authority who was 61 allegedly holding the deceased appellant as unauthorized occupant. It is not the case of the deceased respondent nor it was suggested to the official witness on behalf of the deceased respondent that the receipts Ex.DW6/1 or Ex.DW6/2 or the letter Ex.DW6/3 were manipulated or prepared in collusion and connivance with the officials of the office of Regional Settlement Commissioner, New Delhi. Accordingly, the finding on the issue no.3 of the Ld. Trial Court is hereby set aside and the said issue is decided in favour of the deceased appellant and against the deceased respondent.
59. With regard to the issue no.4, no argument was advanced before me in view of the arguments raised by the Ld. Counsels for both the parties on other issues and the issue no.4 is regarding entitlement of the deceased respondent to recover any damages or compensation for wrongful use by the deceased appellant. In view of my findings on the issues no.1, 2 and 3 above and issues no.5, 6 and 7 below, I am of the considered opinion that the deceased respondent is not entitled to recover any damages or compensation in view of the fact that the deceased appellant was not an unauthorized occupant and that he was a tenant 62 in the premises.
60. With regard to issue no.5, the Ld. Counsel for the deceased respondent vehemently argued that the said issue should not have been framed to which the Ld. Counsel for the deceased appellant replied that during the whole trial the deceased respondent never objected to the framing of the said issue nor any application under Order 14 R 5 CPC was ever made for striking out the issue and that the said issue was rightly framed as the deceased appellant has rightly challenged the said Conveyance Deed in this suit.
61. I had also put a question to the Ld. Counsel for the deceased respondent during the course of the arguments on the said issue as to why the deceased respondent has not preferred cross-appeal against framing of the said issue, to which the Ld. Counsel for the deceased respondent replied that since the issue no.5 was decided in favour of the deceased respondent, there was no occasion for her to file the cross-appeal or objection.
62. Ld. Counsel for the deceased respondent has further vehemently argued that the deceased appellant has not filed any counter claim to get the said Conveyance Deed declared 63 as null and void nor he preferred an appeal to the appellate authority provided under the Act of 1954.
63. In my considered opinion, the Ld. Counsel for the deceased respondent has tried to kill two birds with a single stone by advancing the said arguments. Nobody can be allowed to remain sitting tight over the fence and watching the game and when he is about to loose the game, to jump into the arena and start playing the game. The deceased respondent cannot be allowed to blow hot and cold in the same breath. I find that the Ld. Trial Court has also elaborately discussed the said issue in the impugned judgment and now in these circumstances, the deceased respondent cannot be allowed to wriggle out of the said issue by saying that it should not have been framed. The other reasons as to why this issue was rightly framed has been given by me while discussing the issue no.6 below. I am in complete agreement with the Ld. Counsel for the deceased appellant that the deceased respondent should have moved the Ld. Trial Court under Order 14 R 5 CPC for striking out the said issue and I am of the further considered opinion that if issue no.5 was not to be framed, then there was no need of 64 framing the issue no.1 and issue no.6 also. Thus, there was no need for the deceased appellant to file a counter claim because he was taking his defence by mentioning the same in his written statement that the sale or conveyance deed was void and illegal and the said plea was taken by him in his written statement alternatively to the issue no.1 and for doing so the deceased appellant was fully entitled to under the law. Even otherwise, if it is to be held that the defendant should have challenged the sale or conveyance of the property in question in favour of the deceased respondent by way of independent suit, it would amount to nothing but giving rise to multiplicity of the suits/ litigations between the parties. Hence, for the said reasons, the said contentions raised by the Ld. Counsel for the deceased respondent are hereby rejected.
64. Ld. Counsel for the deceased appellant has contended that the said property was transferred to the deceased respondent in utter defiance of Rule 90 and 91 of the Rules of 1955 framed under the Act of 1954 and that the property was transferred to the deceased respondent by way of negotiation under the political pressure and although the deceased appellant also applied for the transfer of the said property in 65 his name, but he was never communicated with the fate of his application and thus the property was transferred to the deceased respondent in violation of the principles of natural justice and by way of sweet will and arbitrary decision of the authorities under the political pressure and not in their official capacities as provided under Section 20 of the Act of 1954 and the Rules framed thereunder.
65. Coming to the findings of the Ld. Trial Court on issue no.5, Ld. Trial Court held that there is a mention of Sh. Sikander Bakht in the notings Ex. DW8/1 to Ex. DW8/3 but it did not state that any sort of pressure was put by him upon the officials in reaching the conclusion that the suit property be transferred in favour of the deceased respondent. Ld. Trial Court has further held that as a matter of fact after going through the said noting it was evident that the case of both the parties was decided on merits and now the deceased appellant could not allege that the property in dispute was transferred in favour of the deceased respondent due to some political pressure. It was further observed by the Ld. Trial Court that the property fetched Rs. 6000/- in the auction held on 19.9.1963 which was not accepted as its reserved price was 66 Rs. 9873/- and that the deceased respondent purchased the property for the said amount only three months after it was put to auction and that a property which could hardly fetch Rs. 6,000/- in the auction was purchased by the deceased respondent for a sum of Rs. 9873/- only because of the same being a composite property and that the sale could have been challenged by the deceased appellant if the deceased respondent had purchased the same at a price less than the reserved price. It was further held by the Ld. Trial Court that in order to succeed the deceased appellant was to show that the said decision was bad or without jurisdiction and that nothing was pointed out on merits to show as to why the decision was not in accordance with the law.
66. I am surprised to note the said finding of the Ld. Trial Court that though name of Sh. Sikander Bakht was mentioned in the notings Ex. DW8/1 to Ex. DW8/3 but it did not state that any sort of pressure was put by him upon the officials in reaching the conclusion that the suit property be transferred in favour of the deceased respondent. The reasons for my surprise is that I have heard of a scientifically invented instrument called "Barometer" to measure the 67 atmospheric pressure but the scientific and technological development has not invented till date any instrument whereby to judge or measure the "political pressure". The Ld. Trial Court has conveniently hushed up the notings Ex. DW8/1 to Ex. DW8/3 and the other surrounding circumstances which have been proved or otherwise come on the record and have not been disputed by the parties. In order to know as to whether a transaction was in utter disregard to the procedure established by law, one has to go by the evidence proved on record and the surrounding circumstances and this is the only method known to the law to answer a question as to whether a transaction was according to law or against the law.
67. I have put a question to myself at the inception while reading the Ex. DW8/1 to Ex. DW8/3, as reproduced by me above, as to why the name of Sh. Sikander Bakht even appeared in the said notings. Was he a competent or superior authority to guide the other authorities who were writing the notings Ex. DW8/1 to Ex. DW8/3? If not, in what capacity his name was repeatedly discussed and a bare reading of the said three documents go to establish that right from the very first 68 line the said person was in picture during the process of taking decision by the officials with regard to the transfer of the property and in para 2 of Ex. DW8/1 the official concerned categorically came to the conclusion that the property cannot be transferred to her (deceased respondent) by negotiated sale as she was not in possession of the property. In para 2 of Ex. DW8/1, the other contentions of the deceased respondent that property was situated in a predominantly Muslim area was also rejected by the said authority. Similarly, he also rejected the claim of the deceased appellant in para 3 of Ex. DW8/1.
68. The said observation of the authority in para 2 of the Ex. DW8/1 go to establish that the property was never auctioned as per procedure laid down in Rule 90 of the Rules of 1955, there was no fall of hammer, there was no highest bidder over and above the reserved price, there was no acceptance of the highest bid in the auction, no bid was ever accepted either provisionally or finally, no payment was made and this was the reason no sale certificate was issued in favour of the deceased respondent as per Rule 90(15) of the Rules of 1955. The very language of the notings in para 2 69 and 3 of Ex. DW8/1 go to establish that it was well within the knowledge of all the officials who were involved in arriving at a conclusion vide document Ex. DW8/1 to Ex. DW8/3 that the procedure established by law for transferring a property from the compensation pool either by way of auction or by way of a tender as provided under Rule 91 of the Rules of 1955, has not been followed in the present case and they were in full knowledge that the said transfer was being done otherwise in accordance with law and thus, they were reluctant to mention either in the Conveyance Deed Ex. PW5/1 or otherwise issuing the sale certificate in favour of the deceased respondent for the obvious reason that nothing was in their control but the officials were being controlled by some other force.
69. If the property could not have been transferred to the deceased respondent, as mentioned in para 2 of Ex. DW8/1, then why a somersault was taken by another official Sh. Tara Chand Aggarwal as mentioned in para 4 of Ex. DW8/1 that only point in favour of transfer of the property to the deceased respondent by negotiation was that there was right of passage over her house to the property in dispute and it 70 was suggested that the property might be transferred to her at the reserved price of Rs. 9873/- and again the name of Sh. Sikander Bakht appeared and he was requested to intimate whether the deceased respondent was prepared to purchase the property at the above price and this noting was dated 5.8.1963 by Sh. Tara Chand Aggarwal as mentioned in para 4 of Ex. DW8/1 wherein it is further mentioned that since there was no response either from Sh. Sikander Bakht or Smt. Fatima Sultana (deceased respondent), H.M. (the full form of the abbreviation has not been made clear anywhere in the noting or otherwise established on record and probably it stood for Home Minister as is clear from the other part of the document Ex. DW8/2) desired that the property should be put to sale and in this connection reference was made to H.M's minutes dated 17.8.1963.
70. Para 4 of the Ex. DW8/1 speaks of volumes of political pressure on the authorities while transferring the property to the deceased respondent coupled with other circumstances established on record which I may be referring at the appropriate place in this judgment/order. Surprisingly, a point that there was a right of passage through the property 71 in question to the house of the deceased respondent was already in the knowledge of the official who was writing para 2 and para 3 of the Ex. DW8/1 and it was in the full knowledge of all the officials of the department that the property no. IX/739(new) was already purchased by the deceased respondent in an alleged auction and the sale deed was issued to her with regard to said property on 9.12.1960 with the clear stipulation that the occupant of H.No. IX/740 (new) would have the right to access through house no. IX/739, then what was the need of making this a ground in para 4 of Ex. DW8/1 by Sh. Tara Chand Aggarwal, OSD(J), to transfer the property in favour of the deceased respondent. The property was ordered to be sold at the reserved price of Rs. 9873/- and no law or rule was quoted for the justification of the said sale. Which Rule or Law provided that Sh. Sikander Bakht was to be requested to intimate the said decision to the deceased respondent, is not clear from the said noting Ex. DW8/1. It is further not clear as to which Rule or Law provided to wait for the response either from Sh. Sikander Bakht or from the deceased respondent, as is mentioned in para 4 of Ex. DW8/1.
72
71. No explanation has come forward as to why the property was sold at the reserved price only and not at even one rupee above the reserved price. It is difficult to swallow as to how the authorities assumed that the property could never be sold above the reserved price in a subsequent sale by auction or inviting tender as per rules.
72. In para 5 of Ex. DW8/1, it is mentioned that reserved price of property was Rs. 9873/- and it fetched a highest bid of Rs. 6,000/- in auction held on 19.9.1963 which was not accepted. The note Ex. DW8/1 in para 5 is silent about the person who gave the highest bid of Rs. 6,000/-. The said para 5 further mentioned that the property was still available for transfer to Smt. Fatima Sultan if she was prepared to pay the reserved price of Rs. 9873/- and this note was forwarded to another official (probably higher official) known as A.S.C (P)/Dy.CSC(P) who wrote that P.S to H.M spoke to him about this a few days ago and he decided that a written offer to the lady (the deceased respondent) be sent and if she did not reply within seven days, the property would again be put to auction and he observed that she was not willing to pay the reserved price. This is the noting in Ex. DW8/2 and there 73 was further a note from yet a third official known as V.K. Haruray dated 19.12.1963 wherein it is mentioned that Sh. Sikander Bakht told him that Smt. Fatima Sultana was prepared to pay Rs. 9873/- for the property and the money would be deposited within two days and it is further mentioned in Ex. DW8/3 that M.O was directed to see the compliance and should keep on his file relevant copy of noting and thereafter this file is to be returned.
73. A complete "no" turning into a complete "yes", for whatever reasons, can easily be deduced, inferred and seen by the naked eyes while reading the document Ex. DW8/1 to Ex. DW8/3 which was nothing but a devised document under a political pressure.
74. The DW8 was examined on 5.8.1970. Prior to that the Chief Settlement Commissioner has claimed privilege to the documents with regard to file of the property No.IX/740 containing the orders dated 23.11.1963 and 27.11.1963 (Ex. DW8/1 to Ex. DW8/3) and an affidavit of the Secretary to the Government of India, Ministry of Labour, Employment and Rehabilitation was filed which was dated 25.9.1965 and the then Ld. Trial Court rejected the said claim of privilege to 74 produce the documents in the evidence vide his order dated 5.8.1970 and proceeded to record the statement of DW8 who was present with the said file and the documents. This claim of privilege was a strong circumstance of the said political pressure because the privilege was claimed relating to the affairs of the State as well as communications made in official confidence and the disclosure of which would also cause injury to public interest but when the documents Ex. DW8/1 to Ex. DW8/3 were exhibited, as reproduced and discussed by me above, which were tried to be withheld on the pretext of "privilege", in my considered opinion, were not to save the "public injury" but to save the said "political man" and the "pressure" put by him on the officials to sell the property in question by alleged negotiated sale in favour of the deceased respondent.
75. Another circumstance which has been proved on the record is that when PW3 was being examined on 27.7.1967 and he deposed in his examination-in-chief to the extent that he had brought the file regarding the property in dispute and it was an acquired property and that it was auctioned and was purchased by Mohd. Usman and that the sale certificate 75 was not on the file and at that stage, his examination-in-chief was deferred as allegedly he had not brought the complete record.
76. What was that "complete record" which was to be produced by the PW3 was never proved again nor PW3 was again summoned. The only inference of not producing the PW3 again which could be drawn from the facts established on record is that he was not produced because he declared that there was no sale certificate on the file.
77. The attorney of the plaintiff/respondent who appeared as PW7 has categorically admitted that he knew Sh. Sikander Bakht. I am conscious of the fact that a political leader or a celebrity may be known to people at large but putting this question in the cross examination to PW7 was with the intention to know his personal relationship with said Sh. Sikander Bakht to which the witness admitted.
78. Rule 90 of the Rules of 1955 further provide for many limitation period of communicating the acceptance or rejection of the bid of a proposed auction purchaser and if the highest bidder was the deceased appellant for the amount of Rs. 6,000/-, it was not mentioned at all nor proved on record 76 as to whether his rejection of the said bid amount was ever communicated to him or as to whether the deceased appellant was given a personal hearing or otherwise a chance to prove that he belonged to a backward class, as claimed by him, while rejecting his application made under Section 33 of the Act of 1954 as is mentioned in Ex. DW8/1 in para 3. All these circumstances coupled with my said discussion and findings on the issue no.1, 2 and 3, are speaking for themselves that the Conveyance Deed Ex. PW5/1 was executed without following the due process of law, without any authority, without jurisdiction and was under political pressure. Hence, the Conveyance Deed Ex. PW5/1 is held to be void and illegal and finding of the Ld. Trial Court is hereby set aside and the issue no.5 is accordingly decided in favour of the deceased appellant and against the deceased respondent.
79. With regard to issue no.6 which was to the effect as to whether the pleas covered by issue no.5 could be taken in the present case and the onus to prove the same was on the deceased appellant. In this regard, Ld. Counsel for the deceased respondent has submitted that there is a bar of Section 36 of the Act of 1954 to the effect that conveyance 77 deed could not be declared void and illegal in a civil suit and that the deceased appellant otherwise would not have filed a civil suit for getting the said relief. To appreciate the contention raised by the Ld. Counsel for the deceased respondent it is necessary to reproduce the Section 36 of the Act of 1954 which is as follows:
"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 matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
80. On the other hand, Ld. Counsel for the deceased appellant has submitted that when nothing was communicated to the deceased appellant with regard to any decision of the authorities under the Act of 1954 and the authorities when acted in utter defiance of the expressed 78 provisions of the said Law and Rules framed thereunder, the deceased appellant was left with no remedy but to allege the issue no.5 in the present case.
81. Besides my findings on the issues no.1 and 5 above, let me examine as to whether the property was otherwise transferred to the deceased respondent under any of the provisions of the Act of 1954 or the Rules framed thereunder.
82. Admittedly from the point of view of the authorities under the Act, the property in question was an evacuee property and was part of the compensation pool and Section 20 of the Act of 1954 provides that subject to the Rules made under the Act, the Managing Officer or Managing Corporation may transfer any property out of the compensation pool (1) by way of sale by public auction or otherwise to a displaced person or any association of displaced person, or to any other person; (2) by lease to a displaced person or an association of displaced person; (3) by allotment of the property to displaced person or any other person; (4) in case of share of an evacuee in a company by transfer of such share to a displaced person or to any other person or (5) in such other manner as may be prescribed, and 79 other conditions of transfers are also mentioned in the said Section. Admittedly, this was neither a case of lease nor an allotment in favour of the deceased appellant who was not a displaced person nor it has been proved on the record that she was a displaced person. Rule 87 of the Rules of 1955 provides any property forming part of the compensation pool may be sold by public auction or by inviting tenders or in such other manner as the Chief Settlement Commissioner may, by general or special order direct. Admittedly in the present case no general or special order of the Chief Settlement Commissioner has been proved on the record. I have gone through an order of the Chief Settlement Commissioner Ex.DW5/1 dated 28.8.1963 issued by one Sh. Govind Ram for Chief Settlement Commissioner to the effect that the property no. IX/740 be sold immediately and result communicated to his office. This order does not specify as to whether the sale is to take place by negotiations or sale may be without following the rules and the law laid down with regard to the sale of the said property. I have already discussed that Rule 90 of the Rules of 1955 providing procedure for public auction, has not been followed at all in 80 the present case and admittedly it was not a case of sale by inviting tenders as provided in Rule 91 of the Rules of 1955. It has not been proved on the record at all as to whether a negotiated sale, as is reflected from the document Ex.DW8/1 or Ex.DW8/2, could have been made of the property in question as per the Act of 1954 or rules framed thereunder. The picture that emerges from the record is that the sale of the property in question was without following the due process of law and admittedly even otherwise no sale certificate was issued in favour of the deceased respondent which, as I have already discussed, was the basic document for conferring title on the deceased respondent. When the authorities under any statute and rules framed thereunder acted without jurisdiction, or assumed the powers which were not vested in them or acted contrary to the express provisions of the law laid down then such bars of jurisdiction of civil courts as the one provided under Section 36 of the Act of 1954, does not come in the way of seeking the relief from the civil courts. Ld. Counsel for the deceased respondent has drawn my attention to a judgment of the Hon'ble High Court of Delhi titled Sohan Lal Jain thru. LRs. Vs. Union of 81 India & Ors. reported as 2009 I AD (Delhi) 102 wherein the Hon'ble High Court of Delhi was dealing with a case where the appellants had already challenged the order of cancellation of bid passed by the Settlement Commissioner and availed the remedy of statutory appeal and it was in this background that the Hon'ble High Court came to the conclusion that after the orders were passed by the Central Government under the Act of 1954, the jurisdiction of Civil Courts to challenge those orders is specifically barred under Section 36 of the Act.
83. Admittedly, this is not the position in the present case. The deceased appellant never challenged and rather he was having no knowledge of the decisions of the authorities so as to challenge the same by way of prescribed appeal under the said Act. Hence, the said judgment does not come to the help of the deceased respondent. However, reference can be made to a judgment of the Division Bench of Hon'ble High Court of Delhi titled Kundan Lal Vs. Union of India etc reported as 1980 Rajdhani Law Reporter 759 wherein the Hon'ble High Court was dealing with a situation of the 82 meaning to be given to the word "occupation" and the Chief Settlement Commissioner and other authorities wrongly interpreted the meaning of the said word, then it was held by the Hon'ble High Court that wrong application would mean error without jurisdiction and hence a fundamental contravention of Act and the rules and such error is capable of being challenged by Civil Suit or writ. If the error is within jurisdiction then remedy is by way of appeal or revision provided in the Act.
84. A further reference can be made to a judgment of a Division Bench of the Hon'ble Gujarat High Court titled Mirchumal Samandas and others Vs. The Union of India and others reported as AIR 1974 Gujarat 174 in which more than 11 cases of the Hon'ble Supreme Court were discussed on this account and the Hon'ble High Court came to the conclusion that applying the test laid down in the decisions of the Apex Court to the facts before the High Court the Act of the authorities of selling the tenement in the plaintiff's occupation, in the facts and circumstances of the case and in the light of the construction which the High Court 83 has placed upon Rule 42 of the Rules of 1954 was ultra vires the powers of the authorities and, therefore, the bar of jurisdiction enacted by Section 36 is not attracted to the instant case and that the contention raised that the civil court has jurisdiction to entertain the suit must, therefore, be upheld.
85. Citing a judgment of the Hon'ble Supreme Court in Dhulabhai's case reported as AIR 1969 SC 78 the Hon'ble High Court quoted the first test laid down by the Hon'ble Supreme Court as under:
"Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."84
and it was held by the Hon'ble Gujarat High Court in the said case that "The application of the latter part of this test renders the act of the authorities of selling the tenement in the occupation of the plaintiff ultra vires their powers because Rule 42, subject to the satisfaction of the conditions specified therein, requires the authorities to transfer for value the tenement in occupation of a non-claimant. The act of the authorities of selling by public auction the plaintiff's tenement is, therefore, in clear breach or violation of Rule 42. It is therefore ultra vires their powers."
86. Judging in the light of the said laid down law laid down by the Hon'ble Apex Court and the Hon'ble Gujarat High Court and the Hon'ble Delhi High Court, as quoted above, I am of the considered opinion that the pleas which 85 were raised by way of issue no.5 were rightly raised by the deceased appellant and he has successfully discharged and proved the said pleas also as has been discussed by me above. Accordingly, the finding of the Ld. Trial Court that there was a bar of Section 36 of the Act of 1954 is hereby set aside and the deceased appellant was well within his right to raise the plea of the Conveyance Deed as void and illegal, in his defence. Accordingly, issue no.6 is decided in favour of the deceased appellant and against the deceased respondent.
87. With regard to issue no.7, in view of my findings on the issues no.1 to 6 the deceased respondent is held not entitled to any relief and the impugned judgment and the decree dated 23.2.1972 of the Ld. Trial Court is hereby set aside and the suit of the deceased respondent is hereby dismissed. However, in the circumstances, parties to bear their own costs.
88. The deceased appellant is entitled to refund of the amount which he might have deposited under the order of the appellate court or the trial court, after the expiry of the period of appeal/revision etc, as the case may be. Let the appellate decree be prepared accordingly. A copy of this order 86 be placed on the Trial Court Record which may be sent back to the successor of the concerned trial court forthwith. The appeal file be consigned to the Record Room separately. ANNOUNCED IN THE OPEN COURT ON 13.08.2009 (RAKESH TEWARI) ADJ-19: CENTRAL DISTRICT DELHI