JUDGMENT

VENKATARAMIAH, J. - This appeal by certificate is filed against the judgment and decree dated July 29, 1970 passed by the High Court of Gujarat in First Appeal No. 438 of 1962 affirming the judgment and decree dated August 27, 1962 passed in Special Civil Suit No. 254 of 1959 on the file of the Civil Judge (Senior Division), Junagadh dismissing the suit of the plaintiffs for possession of the properties mentioned in Schedule I attached to the plaint and for damages and other reliefs against the Union of India.

2. The properties in question which are situated in the area which formed part of the former princely State of Junagadh originally belonged to one Haji Umar Kasam, a resident of Junagadh who died on May 22, 1956. The plaintiffs are his heirs and legal representatives.

3. The Nawab of Junagadh accepted the accession of his State to Pakistan on August 13, 1947. On September 23, 1947 Haji Umar Kasam left Junagadh for Haj and sailed from Bombay by "S. S. Akbar" on October 8, 1947. On October 24, 1947, the Nawab of Junagadh fled to Pakistan. The State of Junagadh was taken over by its people and a Council of Administration was set up to administer it. Thereafter the State acceded to India. On February 13, 1948 Junagadh State Evacuee (Administration of Property) Act 12 of 1948 (hereinafter referred to as the Junagadh Act) was enacted. It provided for the administration of the properties belonging to evacuees. Under that Act the expression evacuee was defined as a person ordinarily resident in or owning property or carrying on business in any village or town within the Junagadh State who had on account of civil disturbances or the fear of such disturbances left that village or town and did not personally occupy or supervise his property or business. All property in which an evacuee had any right or interest other than any moveable property in his immediate physical possession which was called evacuee property situated within the Junagadh State came to be vested in the Custodian appointed for the purpose of that Act and was directed to continue to be so vested until the Junagadh State Government by notification otherwise directed. There were detailed provisions in that Act relating to the management of evacuee properties. Section 16 (1) of that Act however provided that on being satisfied that evacuees had returned or were returning to the Junagadh State, the Junagadh State Government might by notification in the State Gazette authorise return of the property to the owners in accordance with the aforesaid Section 16. Any person claiming to be entitled to any such property could apply in writing to the Custodian who had after giving public notice to hold a summary enquiry into the claim and to pass a formal order declaring the person to whom the possession of the property might be delivered. A notice was issued by the Assistant Custodian under the Junagadh Act on May, 1, 1948 in respect of the properties of Haji Umar Kasam as he had not returned to Junagadh and was away for more than six months. On May 5, 1948 his son Haji Mohammed Siddik Haji Umar sent a reply to that notice stating that his father Haji Umar Kasam had not gone away from Junagadh out of fear of civil disturbances; that he had gone on Haj; that all his heirs were living in Junagadh and that he was returning shortly and therefore his properties might not be treated as evacuee properties. No specific reason was, however, given in the said reply for the long delay in the return of Haji Umar Kasam. On receipt of his reply that notice was withdrawn on May 31, 1948. Since Haji Umar Kasam had not returned till September 1948 the possession of the suit properties was taken by the Custodian between September 23, 1948 and October 1, 1948 as evacuee properties. By the Saurashtra Ordinance 3 of 1949, the territory of the Junagadh State was integrated with the United States of Saurashtra. It is alleged that by an order dated March 1, 1949 Haji Umar Kasam was declared