Patna High Court
Md. Zakiuddin vs District Assistant Custodian Of ... on 24 August, 1962
Equivalent citations: AIR1963PAT11, AIR 1963 PATNA 11, ILR 43 PAT 285 1962 BLJR 11, 1962 BLJR 11
JUDGMENT Mahapatra, J.
1. The plaintiff is the appellant. The suit was one for declaration that the orders of the District Assistant custodian, Patna dated the 25th May, 1950, and that in appeal of the Deputy Custodian, Patna, dated the 11th July 1950 were illegal, ultra vires, without jurisdiction and not binding upon the plaintiff, and, consequently, the house property described in Schedule A of the plaint was not an evacuee property and it did not vest in the custodians.
2. The plaintiff's case, shortly put, is that while he was a clerk in the Patna Collectorate in 1933, he purchased the house in suit in the name of his wife, Mosst. Bibi Qabulunnissa by a registered sale deed. Though the wife figured as the purchaser in the sale deed, in fact, it was the plaintiff who had supplied the consideration money and who has been in occupation of the house in question all through. He exercised his right of ownership and possession over the house since the date of purchase. The District Assistant Custodian, Patna, started a proceeding against his wife under Section 7 of the Administration of Evacuee Property Act, 1950, in April, 1950. A notice (Ext. A) was addressed to "Mosst. Quamrunnissa, wife of S. Zakiuddin, a retired Government servant," on the 24th of April 1950, calling upon her to show cause with all material evidence on which she wished to rely why orders should not be passed declaring her to be evacuee and all her property to be evacuee property under the provisions of the Administration of Evacuee Property Ordinance, 1949.
In response to this notice, the plaintiff appeared before the Assistant Custodian and filed an objection petition, in which he pleaded that the property did not belong to his wife, but to himself, and as such it should not be declared as evacuee property. The Assistant Cutodian, however, by his order dated the 25th May 1950, declared the property to be an evacuee property, holding that the house belonged to the wife of the present plaintiff. There was an appeal against that order, at the instance of the plaintiff, but without any success. It is after that that the present suit was filed on the 20th June 1957, against the District Assistant Custodian of Evacuee Property, Patna, and the Custodian of Evacuee Property, State of Bihar, Patna. When it was pointed out in the written statement filed on behalf of the two original defendants that the property had already gone to the possession of one Md. Fakhruddin, minor son of Abdul Sakoor, by way of purchase from the Central Government who had acquired the property under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, the plaintiff applied, for amendment of the plaint and sought permission of the Court to add the Union of India as defendant No. 3 and Md. Fakhruddin as defendant No. 4. This was allowed. A written statement was filed on behalf of Md. Fakhruddin. The Union Government did not participate in the trial.
3. The main defence against the plaintiff's suit was that the Civil Court has no jurisdiction to entertain the suit in view of the bar imposed under the Administration of Evacuee Property Act, 1950, which came into force with effect from the 17th April, 1950. Before this Act came into force, there was the Administration of Evacuee Property Ordinance, 1949. Under Section 58 of the Act, that Ordinance was repealed, but the saving clause provided for the validity and continuance of alt acts done under that ordinance.
4. The trial court held that the suit was not maintainable, and on that account, dismissed the plaintiff's suit. While discussing the issue No. 7 (whether the plaintiff is the real owner of the house in suit), the learned Subordinate Judge recorded a finding that it was the plaintiff, and not his wife, who was the real owner of the house in question. In spite of this finding, as he came to the conclusion that the Civil Court had no jurisdiction to entertain the suit, he dismissed the entire suit. Against that, the plaintiff has preferred the appeal to this Court.
5. Learned counsel for the appellant raised three contentions before us: (i) that the jurisdiction of the Civil Court in respect of a disputed title about a property, which is sought to be declared as evacuee property, has not been ousted by the Act, (ii) the authorities prescribed under the Act were not vested with the powers by the Act to adjudicate upon questions of disputed title over any property, and (iii) even if the authorities under the Act had such powers to adjudicate upon such questions, in the present case, neither the Assistant Custodian nor the Deputy Custodian in appeal, did adjudicate that question, and as such it is open to the Civil Court to investigate into the matter. Another argument was also raised by him to the effort that the entire proceeding resulting in the declaration of the suit house as an evacuee property was vitiated by lack of jurisdiction on the part of the Assistant Custodian, who initiated the proceeding on account of the invalidity of the notice which was issued under Section 7 of the Act. It was urged that the notice was defective for more than one reason. Learned counsel emphasised upon the fact that the notice did not mention any property which was going to be declared as an evacuee property, and that went to the root of the validity of the notice, and, if once the notice is held to be invalid on that account, the Assistant Custodian would be divested of the jurisdiction that would have otherwise vested in him on the issue of a proper notice under Section 7 of the Act.
6. The notice issued under Section 7 of the Act has been marked as Ext. A in the case. It purports to have been issued under the Administration of Evacuee Property Ordinance, 1949, although the Ordinance stood repealed before the date on which the notice was issued (the 24th April, 1950). The Administration of Evacuee Property Act, 1950 came into force on the 17th April, 1950, and by that Act the Ordinance was repealed. The reference to the Ordinance in the notice was, therefore; a mistake. But this mistake did not cause any prejudice to any of the parties. Learned counsel for the appellant did not attach any importance to this mistake. The notice (Ext. A) was addressed to Mosst. Qamrunnissa, although the name of the plaintiff's wife is Mosst. Bibi Qabulunnissa. This mistake in the notice in regard to the name is also Immaterial, inasmuch as, the other descriptions are given therein, namely, the name of the plaintiff as the husband of the notices, and this mistake did not cause any prejudice to anybody whatsoever. In response to that notice, though wrongly addressed, the plaintiff entered appearance before the Assistant Custodian and filed objection petition in the proceeding. Thus, he cannot be said to have been affected in any way. The notice undoubtedly did not contain any reference to the property in suit, although the notice was called upon to show cause as to why orders should not toe passed declaring her an evacuee and all her property as evacuee property. Learned counsel's emphasis was on the omission of any description of the property in the notice, and his contention was that in absence of such description or reference to the property in question, the Assistant Custodian could not have proceeded further to declare any property as evacuee property as a result of an inquiry following from that notice.
This argument cannot be accepted for more than one reason. In the first place, the plaintiff himself had no mistaken idea in his mind when he responded to the notice (Ext. A) in regard to the property in respect of which that notice was sought to be given. In his written statement filed before the Assistant Custodian he clearly mentioned that the house (which is the subject-matter of the present litigation) was purchased by him, and he filed the sale deed in support of his objection. Municipal receipts in respect of that house were also produced by him before the Assistant Custodian. Thus, there cannot be any doubt that the plaintiff was unmistakably aware that the suit house was sought to be declared to be the property of his wife, who was an evacuee. The absence of any reference to any property in the notice has not caused any prejudice whatsoever in the case. In the second place, the mere absence of any description of the property in the notice cannot be said to be fatal as far as the jurisdiction of the Assistant Custodian was concerned. The very case of Md. Sharfuddin v. R.P. Singh, (S) AIR 1957 Pat 235, to which the learned counsel referred, has laid down that in a case where the objector had opportunity to contest before the Assistant Custodian in regard to any particular property, before it was declared an evacuee property, the mere non-mention of that property in the notice would not be taken to have caused any prejudice and that the alleged invalidity of notice, on account of any defect of that nature, does not affect the jurisdiction of the officer concerned to proceed under Section 7 of the Administration of Evacuee Property Act, 1950. We find that the Supreme Court did not accept some of the points decided in the above case, as it appears from Md. Sharfuddin v. R.P. Singh, AIR 1951 SC 1312. The point which was overruled was different. Whether the Assistant Custodian could prefer an appeal within the meaning of Section 24 of the Act against the order passed by the custodian, was mooted before their Lordships, and it was held, disagreeing with the view taken by this Court in (S) AIR 1957 Pat 235, that the Assistant Custodian was not included within the meaning of "a person aggrieved" by the order and as such, could not prefer an appeal under Section 24 of the Act. Thus what was held by this Court in that case in regard to non-mention of property in the notice under Section 7 and its effect on the jurisdiction of the officer concerned, stands unchallenged.
7. Learned counsel also referred to the case Surajdeo Narain Singha v. Custodian, Evacuee Property, Bihar, AIR 1958 Pat 29, and pointed out one observation in the body of the judgment where the learned Judges said:
"It is difficult to hold on the basis of this notice alone that the entire order of the custodian was wholly illegal, in the absence of the circumstances connected with that case. It is likely that another notice was issued, in that case. Again, there may be certain circumstances which validated the proceedings, notwithstanding the omission of the ground from the notice."
In that case it was urged that the notice under Section 7 was invalid on the ground that the properties were not specified in the notice, and that the grounds on which the properties were sought to be declared evacuee properties were not mentioned therein. In regard to the first part their Lordships observed at another passage :
"If the petitioners were aggrieved by the order of declaration because of infringement of the provisions of Section 7 the proper course for them was to take steps for setting aside of that order in the original proceedings."
It is clear that their Lordships were of the view that if there is any reason to attack the notice issued under Section 7 in any case, the proper course for the aggrieved party is to take steps for setting aside that order within the framework of that Act itself; either by way of appeal or by way of review, as the case may be. There is nothing in the judgment to indicate that a mere omission of any reference to any property in the notice under Section 7 would automatically invalidate the notice itself, or that it would affect the jurisdiction of the officer concerned to take any further steps in pursuance of that notice. As already held above, in the present case, the appellant himself was completely aware which property was covered by the proceedings initiated by the Assistant Custodian, and, therefore, neither there has been any prejudice in fact or in law to him or to the evacuee, on account of any omission or reference to any property in the notice issued under Section 7 of the Act.
8. I shall now proceed to deal with the three main objections raised by the learned counsel for the appellant. His first contention was that the Civil Court's jurisdiction has not been ousted by the Administration of Evacuee Property Act, 1950, in regard to a case where a disputed title is raised by a person in respect of a property declared as an evacuee property. The word "evacuee" has been defined in the Act, and the words "evacuee property" mean any property of an evacuee, and includes any property which has been obtained by any person from an evacuee after the 14th day of August, 1947, by any mode of transfer which is not effective by reason of the provisions contained in Section 40. How a property can be declared as an evacuee property has been provided under Section 7 of the Act, which lays down that, "where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property".
The rules that were framed under Section 56 of the Act, provide the manner in which the inquiry should be held by the Custodian. Rule 6 lays down that "where the Custodian is satisfied from information in his possession or otherwise that any property or an interest therein is prima facie evacuee property, he shall cause a notice to be served in Form No. 1 on the person claiming title to such property or interest and on any other person or persons whom he considers to be interested in the property".
There is thus no doubt that any person who claims to have any interest in any property which is sought to be declared as an evacuee property, will be entitled to a notice under Section 7 of the Act read with Rule 6. Any such person can show cause why the property should not be declared as evacuee property, and when any such party appears and contests that notice, the Custodian will proceed to hear him, his objections and the evidence that he may tender. Sub-rule (6) of Rule 6 provides that "after the whole evidence has been duly recorded in a summary manner, the Custodian shall proceed to pronounce his order. The order shall state the points for determination and the findings thereon with brief reasons".
A complete machinery has thus been provided for determination of the issue as to whether a particular property is evacuee property or not. Section 24 of the Act provides for an appeal against the order passed under Section 7. There were provisions under Section 26 of the Act for review or revision of the orders passed by the Custodian, etc. which were subsequently repealed on the 22nd October, 1956. Section 28 of the Act lays down that "save as otherwise expressly provided in this Chapter (Chapter V) every order made by the Custodian-General, Custodian, Additional Custodian, Authorised Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceeding."
In addition to that, Section 46 of the Act provides in clearer terms that "save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction: (a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property". The Scheme of the Act thus leaves no doubt in mind that the Legislature wanted to provide a complete apparatus for the adjudication about the title of any property that is sought to be declared as evacuee property, and the claim of different persons who may assert any interest in such property. In view of the specific bar laid down under Sections 28 and 46 of the Act, it would not be possible for Civil Court to assume jurisdiction re-open the question about the title of an evacuee property, after it has been adjudicated upon to be so by a competent officer under the provisions of the administration of Evacuee Property Act, 1950 or any of the preceding Ordinances. Learned counsel for the appellant urged that intricate question of title that may arise in a particular case cannot be suitably determined under Section 7 read with Rule 6, by the Custodian in a summary manner. What such Officer is concerned with is that he should be satisfied prima facie that a person is an evacuee and a property belongs to an evacuee, and on his being satisfied on these two accounts, he can declare a property to be evacuee property. I am afraid, this contention cannot hold good in view of the clear provision for notice, inquiry, evidence, argument and the form of the final order that has been made in the Act and the rules.
9. Learned counsel, however, referred us to the case of M.B. Namazi v. Deputy Custodian of Evacuee property, Madras, AIR 1951 Mad 930, in which Chief Justice Rajamannar, at one place, observed:
"There is, however, one thing about which I am not quite clear. The Ordinance no doubt declares the order of the Custodian declaring any property to be evacuee property as final. That might be so in one sense, i.e. if any property belongs to a person who has been declared to be an evacuee within the meaning of the definition in the Ordinance, then the Custodian's order would be final. But, does the finality amount to an adjudication on title in case there is any dispute? Take for instance the case where a property is declared to be evacuee property on the assumption that it belongs to A who is an evacuee. Does it mean that some one else cannot say that the property really does not belong to the evacuee but belongs to himself who is not an evacuee? I am inclined to hold that the order of the Custodian or the notification under Section 7 of the Ordinance is not final, in case of disputed title."
Basing upon these observations, learned counsel urged that wherever a person other than an evacuee does not raise the question of title in regard to any particular property the order of the Custodian will be final as passed under Section 7. In all other cases, where a person other than the evacuee claims title in his favour, the matter will not be final by the decision of the Custodian, and the doors of the Civil Court will remain open for such claimant to establish his title by a regular suit. ! must say with great respect that the Madras case has not taken notice of either of the two Sections 28 and 46, where a bar against a suit is provided for. Secondly, any person who claims any interest in any property, which is subject-matter of a proceeding under Section 7 of the Act, is entitled to come and press his claim before the Custodian, either in answer to a notice that might have been issued to him, or if no such notice was issued to him, he can himself come on the scene at his own instance before the Officer who initiates the original proceeding or before any of the appellate authorities. The words mentioned in Section 24 of the Act is "any person aggrieved by an order", and not "any party" to the proceedings under Section 7 of the Act. Thus, the scope of appeal appears to be much wider and can include a person who might not have been a party in the original proceedings.
In the case of Ebrahim Aboobahar v. Custodian General of Evacuee Property, Delhi, AIR 1952 SC 319, their Lordships of the Supreme Court held that a person who might have given, by way of an informer, an information to the Custodian about the existence of any evacuee property, can prefer an appeal against the final order of the Custodian declaring that the property in question is not evacuee property, although he himself was not a party in the original proceeding, or was not a noticee or claimant under Section 7 of the Act. This shows a wider scope of the provisions under Section 24 of the Act, as far as appeal against the order passed under Section 7 is concerned. In the instant case before us, the plaintiff himself was before the Assistant Custodian in the original proceeding, and he had also preferred an appeal under Section 24 against the orders passed under Section 7. In that view, there cannot be any doubt that his claim to the property in question was before the Assistant Custodian, and was decided rightly or wrongly by him as well as by the appellate officer. Id such a case, the observations of Chief Justice Rajamannar, as quoted above, can have no application.
10. Learned counsel also referred to the case, Custodian General of Evacuee Property, New Delhi v. Harnam Singh, AIR 1957 Punj 58, In that case there are some observations which support learned counsel's contention. They are to the effect that the custodian has no power to determine disputed questions of title. Their Lordships do not appear to have taken notice of the provisions of Sections 28 and 46 of the Act. I am, therefore, not able to agree with the view taken in that decision.
11. The jurisdiction of the Custodian under Section 7 is two-fold; he is to determine if a person is evacuee and if a property belongs to him, and then to make a declaration to that effect and take the property as vested in him. When a special tribunal is created by the legislature for any specific purpose, it is open to it to provide powers for such tribunal to determine for itself the basic facts which alone will clothe it with further jurisdiction and authority to deal with the subject. If such initial jurisdiction is not given to a Tribunal, the existence of the basic facts may be challenged in the Civil Court to knock down the authority of the Tribunal for its final orders and action. The provisions of a particular enactment will show what kind of jurisdiction has been vested in the Tribunal. Section 7 provides the initial jurisdiction for the custodian to enquire into and find out the basic facts and then to assume jurisdiction to deal with the evacuee property. If one would challenge the correctness of his action, he can approach the appellate authority under the Act. Any act done by a Tribunal without jurisdiction can be disputed in the Civil Court, but an act done in wrong exercise of its jurisdiction by a Tribunal is only amenable to correction by its Superior authority and not the municipal Court in this connection I may usefully refer to the case S.M. Zaki State of Bihar, AIR 1953 Pat 112.
12. The other point urged by the appellant was that in the present case neither the Assistant Custodian nor the Custodian, in appeal, adjudicated upon the question of title in regard to the suit house, and, therefore, the civil court was competent to go into the question, if they refused to exercise jurisdiction by not deciding the question of title, their orders declaring the property to be evacuee property could be looked into and declared invalid by the Civil Court. But, as a matter of fact, it cannot be accepted that neither of the two officers went into that question. Referring to the order passed on the 25th May 1950 by the Assistant Custodian, I find that he considered the municipal receipts, he heard the argument on behalf of the plaintiff, he took into account the sale deed, and after consideration of all these matters, he came to the opinion that the house was really purchased by the plaintiff's wife and not by the plaintiff in the farzi name of his wife. Accordingly, he declared that to be evacuee property. This appears from Ext. 3. The appellate order was marked Ext. 3 (a), which is dated the 11th July, 1950. There also, the Deputy Custodian, who heard the appeal, held that there was no good ground to hold that "it was farzi transaction because the appellant was a Government servant." No doubt in one portion of that order the Deputy Custodian observed that it was not for that Court to adjudicate whether the transaction was farzi, but immediately after saying that, he started to consider the claim in support of the plaintiff's title, and came to the conclusion that the plaintiff was not the real purchaser, but his wife. Whether that order was correct or not, is different, particularly in view of the finding arrived at by the trial court in the present case. We are not concerned with that aspect of the question at the present moment. It is enough for us if we find that the Assistant Custodian as well as the appellate authority, that is, the Deputy Custodian, did weigh the evidence before them and came to the conclusion that the owner of the property was an evacuee, namely, the plaintiff's wife. Learned counsel is not correct in saying that neither of the two officers did go into that question. The opinion of the trial court in the present suit on that issue is quite different from the opinion taken by the Assistant Custodian and the Deputy Custodian, but that by itself is not sufficient to discredit the validity or the orders of those two officers, for, they were authorised under the Act to come to a decision and they did come to that decision. That decision would be final until it was dislodged according to the provisions of the Act. The mere fact that the learned trial Judge came to a different find-ing from that of the two officers will not affect the finality, of the order passed under Section 7 of the Act.
13. I have, therefore, no doubt in my mind that the Assistant Custodian and the appellate authorities as provided for in the Act are competent to examine any question of title in regard to any evacuee property before a declaration is made under Section 7 of the Act, and that in the present case, both the officers did examine that question and came to some conclusion. I am further or me view, as I have already expressed, that the Civil Court has no jurisdiction to try any question of title in regard to the evacuee properties, particularly in respect of persons who participated in the proceeding under Section 7 of the Act ; before the Assistant Custodian. The contentions raised on behalf of the appellant thus fail.
14. Learned counsel appearing for the State of Bihar pointed out that after the declaration was made under Section 7, tne property was taken charge of by the Custodian, and, thereafter, when the Displaced Persons (Compensation and Rehabilitation) Act, 1954 came into effect, the Central Government acquired this property Under Section 12 of that Act. Subsequently, the defendant No. 4 purchased it from the Central Government. The Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954), is again a complete apparatus. It provides for acquisition of evacuee property under Section 12, powers to transfer the property under Section 20, appeals, review and revisions under Sections 22 to 25, and the bar of any suit in the Civil Court under Sections 27 and 36 of the Act. When this Act came into force, the properties which had already been declared as evacuee property, as was done in the present case, came to be dealt with by the Central Government, and persons other than evacuees were brought' on the properties with good title in their favour. Defendant No. 4 is one such person. In the present suit, the plaintiff only claimed a declaration of his title, although the defendant No. 4 was already in possession of the suit property at the time the suit was filed. Originally neither defendant No. 3, the Union of India, nor defendant No. 4 was impleaded as a party. But when they were added as parties, the relief portion was not amended. The result will be that even if the plaintiff will be given the declaration by the Civil Court, as is sought, it would have no-effect, inasmuch as, by virtue of that declaration he would not be able to recover possession from defendant No. 4, who validly came in possession in pursuance of the provisions of law under Act 44 of 1954, for good consideration. The sale to defendant No. 4 has not been disputed, nor his possession. In that view, Section 42 of the Specific Relief Act would be a clear bar against the present suit. I find that though that bar was raised in defence in the written statement of defendant No. 4, during argument that was not pressed, but given up. That, however, will not alter the position. If that bar is applicable, it is for the court to apply that bar particularly in view of the circumstances of the present case when a third party has already come in possession of the property after he purchased it for a good consideration from an authority which was competent to acquire that property.
15. Learned counsel for the defendant No. 4 (a respondent in this appeal) urged that though the Union of India was impleaded by way of amendment of the plaint, no notice under Section 80 of the Code of Civil Procedure was served upon them. The suit will not be maintainable against them on that account. To me it appears that the Union of India, though a proper party, was not a necessary party. Even if the suit fails against them on account of non-service of notice under Section 80 of the Code of Civil Procedure, it will have no effect otherwise on the suit, if, it was maintainable against the other defendants.
16. For the reasons that I have already given, I am of the view that none of the points raised in support of the appeal can succeed. The result is that the appeal is dismissed, but in the circumstances of the case, there shall be no order for costs in this Court.
Tarkeshwar Nath, J.
17. I agree.