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PATNA HIGH COURT
H.Mahapatra and Tarkeshwar Nath JJ.
Ramcharan Mahto
Versus
Custodian Of Evacuee Property
Appeal from Original Decree No. 325 of 1960 ;
Decided On : MAY 01, 1963
ADMINISTRATION OF EVACUEE PROPERTY ACT - SECTION 80, CIVIL PROCEDURE CODE - NOTICE - WAIVER - REJECTION OF PLAINT - ORDER 7 RULE 11(D), CIVIL PROCEDURE CODE - APPLICABILITY.
Fact of the Case:
Plaintiffs instituted a suit against two defendants, one of whom was the Custodian of Evacuee Property, Bihar, for declaration of their title as occupancy raiyats and confirmation or, in the alternative, recovery of their possession over the suit lands. The Custodian pleaded that all proceedings taken under the Administration of Evacuee Property Act were in compliance with the law and the order declaring Syed Maslehuddin as an evacuee was legal and his properties had vested in the Custodian who had come in joint possession of the lands in suit with defendant No. 1. The trial court rejected the plaint by its judgment dated 14th December, 1959, for want of notice under Section 80, Civil Procedure Code.
Finding of the Court:
The court held that the Custodian, defendant No. 2, was a public officer and a notice under Section 80, Civil Procedure Code, was necessary to be given to him before the institution of the suit, and in absence of an averment in the plaint that such a notice was given, the court below rejected the plaint. The court further held that the amendments to the written statements of the defendants, giving them permission to introduce for the first time the bar against the suit with reference to Section 80, Civil Procedure Code should not have been allowed by the trial court two years after the original written statements were filed. The court also held that the suit could not be maintained against defendant No. 2, the Custodian, for want of notice in compliance with the provisions of Section 80, and he must be directed to be expugned from the action.
Issues: 1. Whether the Custodian of Evacuee Property was a public officer and a notice under Section 80, Civil Procedure Code, was necessary to be given to him before the institution of the suit? 2. Whether the amendments to the written statements of the defendants, giving them permission to introduce for the first time the bar against the suit with reference to Section 80, Civil Procedure Code should have been allowed by the trial court two years after the original written statements were filed? 3. Whether the suit could be maintained against defendant No. 2, the Custodian, for want of notice in compliance with the provisions of Section 80?
Ratio Decidendi: 1. The Custodian of Evacuee Property was a public officer and a notice under Section 80, Civil Procedure Code, was necessary to be given to him before the institution of the suit. 2. The amendments to the written statements of the defendants, giving them permission to introduce for the first time the bar against the suit with reference to Section 80, Civil Procedure Code should not have been allowed by the trial court two years after the original written statements were filed. 3. The suit could not be maintained against defendant No. 2, the Custodian, for want of notice in compliance with the provisions of Section 80.
Final Decision: The appeal was allowed in part and the judgment and decree of the trial court were modified to the extent that the defendant No. 2 was expunged from the suit and the case against the defendant No. 1 was remanded for disposal according to law. The defendant No. 2 was entitled to costs from the plaintiffs in this Court. The costs of other parties would abide the result of the suit.
H.Mahapatra, J.
1. Plaintiffs are the appellants who instituted a suit on the 8th of January, 1957, in the Court of the Subordinate Judge at Bihar in the district of Patna against two defendants, one of whom was the Custodian of Evacuee Property, Bihar (defendant No. 2). The other defendant was Syed Salahuddin Ahmad., son of Syed Imamuddin Ahmad. Another, son of Syed Imamuddin Ahmad was Maslehuddin who was declared an evacuee under the Administration of Evacuee Property Act and half share in the suit property was also declared to be that evacuees property. As that property vested in the Custodian, he was made a party defendant to the suit. Plaintiffs allegations in the plaint were that they were coming in possession of the suit lands as their raiyati holdings and defendant No. 1 or his predecessors-in-interest were never in possession of the same. There were proceedings under Sec.145 of the Code of Criminal Procedure in regard to the suit properties, but they were ultimately quashed by the High Court on an application in revision made by the defendant. After the decision in that criminal revision case, defendant No. 1 with the Custodian, defendant No. 2, contemplated to dispossess the plaintiffs from the suit lands. To repel that apprehension, the present suit was brought in which the plaintiffs alleged that the Custodian had declared the defendant No. 1s brother Syed Maslehuddin as an evacuee and half the property in suit to be the evacuee property without proper materials and legal evidence and, as such, he (Custodian) had no right to take possession of any portion of the lands which never vested in him in law. It is not necessary to refer to several other allegations made in the plaint, challenging the title and possession of defendant No. 1 as they will not be necessary for the disposal of the appeal. The reliefs sought in the plaint were declaration of the plaintiffs title as occupancy raiyats and confirmation or, in the alternative, recovery of their possession over the suit lands. They prayed for mesne profits in case they were held to be out of possession and they wanted to withdraw the money which lay in deposit in the case under Sec.145 of the Code of Criminal Procedure.
2. Two separate written statements were filed by the defendants on the 21st of August and the 19th of December, 1957, respectively. Seyeral objections were taken against the suit. It was pleaded that the suit was barred under Sec. 46 of the Administration of Evacuee Property Act, and that the suit lands being a composite property, a proceeding under that Act was pending in the Court of the competent officer for separation of the interest of the evacuee (defendant No. 1s brother) and, as such, the suit was also barred under Sec.20 of that Act. Plaintiffs possession was denied and the defendants possession asserted. Defendant No. 2, the Custodian, pleaded that all proceedings taken under the Administration of Evacuee Property Act were in compliance with the law and the order declaring Syed Maslehuddin as an evacuee was legal and his properties had vested in the Custodian who had come in joint possession of the lands in suit with defendant No. 1.
3. Issues were framed on these pleadings on the 21st of August, 1957. From the order-sheet of the trial Court it appears that on the 21st of August, 1957, defendant No. 1 filed his written statement but the cost as ordered before was not paid. The Court ordered that day the case to be put up on the next day for payment of cost and settlement of issues on acceptance of the written statement. It was noticed in the order-sheet that defendant No. 2 had taken no steps. On the 12th of November, 1957, defendant No. 2 made an application for time for filing his written statement on the ground that he had not received the same from the Legal Remembrancer. The suit was fixed for the 3rd of January, 1958, for hearing and defendant No. 2 was ordered to file his written statement at an early date. On the 18th Decemb
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