Judgment

DESAI, J.:- One Sumerkhan had five sons and two daughters. They were Imam Khan, Sodey Khan, Rahmat Khan, Hanif Khan, Gafoor Khan and Hazran and Mima respectively. Out of these five sons, Hanif Khan and Gafoor Khan were declared as evacuees. Sumerkhan had died leaving two houses bearing Nos. 11/5/168 and 11/5/180 situated in Jodhpur in the State of Rajasthan. On Hanif Khan and Gafoor Khan being declared evacuees, their undivided 2/5th share in the aforementioned two houses was declared evacuee property. Abu Khan, appellant No. 1 is the son of Sodey Khan. He was also suspected to have migrated to Pakistan and therefore, he was declared an evacuee. Series of proceedings successively taken by Abu Khan culminated in order dated April 16, 1959 by the Custodian-General of Evacuee Property remanding the matter for a fresh enquiry. In the fresh enquiry Abu Khan was held not to be an evacuee. After the decision was recorded in favour of Abu Khan that he was not an evacuee, he approached the competent authority for separation of the non-evacuee interest in the aforementioned two houses stating therein that only the share of Gafoor Khan and Hanif Khan has been declared to be evacuee pr