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1965 Supreme(Pat) 51
PATNA HIGH COURT
Ramratna Singh and R.J.Bahadur JJ.
Bibi Abeda Khatoon
Versus
Assistant Custodian Of Evacuee Property
Appeal from Original Decree No. 177 of 1960 ;
Decided On : APRIL 22, 1965
The jurisdiction of Civil Courts is ousted under Sections 28 and 46 of the Administration of Evacuee Property Act, 1950, even if the Custodian, Additional Custodian, Deputy Custodian, or Assistant Custodian has wrongly decided that any person is an evacuee or any property is an evacuee property under the Act. However, the non-service of notice under Section 7(1) of the Act does not render the order void if the interested person appears before the Assistant Custodian and contests the assertion that the property is evacuee property.
Headnote:
ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 - SECTIONS 7, 24, 25, 26, 27, 28, 40, 46 - JURISDICTION OF CIVIL COURTS - ORDER DECLARING PROPERTY AS EVACUEE PROPERTY - CONDITIONS PRECEDENT - NOTICE TO INTERESTED PERSONS - APPEARANCE OF INTERESTED PERSON WITHOUT NOTICE - EFFECT - JURISDICTION OF CUSTODIAN - FINALITY OF ORDERS - INTERPRETATION OF SECTIONS 28 AND 46.
Fact of the Case:
Plaintiffs filed a suit for declaration that an order passed by the Assistant Custodian of Evacuee Property declaring a house as evacuee property was without jurisdiction. The house originally belonged to Bibi Sadiqua, who sold it to the plaintiffs under a registered sale deed. The Assistant Custodian issued a notice under Section 7(1) of the Administration of Evacuee Property Act, 1950, to Bibi Sadiqua, but it could not be served as she was not present and her husband had left India for Pakistan. A subsequent notice was served by affixing it at the house, and an objection was filed by the plaintiffs before the Assistant Custodian. The Assistant Custodian directed the plaintiffs to produce evidence in support of their statement, but they did not take any further steps. Ultimately, the Assistant Custodian passed an order declaring the house as evacuee property. The plaintiffs' application for confirmation of their right, title, and interest in the house under Section 40 of the Act was dismissed as barred by limitation. The plaintiffs then filed the present suit.
Finding of the Court:
The court held that the order of the Assistant Custodian declaring the house as evacuee property was not without jurisdiction. The court found that although no notice under Section 7(1) of the Act was issued to the plaintiffs, the plaintiffs' appearance before the Assistant Custodian and filing of an objection petition cured the defect of non-service of notice. The court also found that the notice issued to Bibi Sadiqua substantially complied with the requirements of the Act and that there was sufficient evidence to support the finding that Bibi Sadiqua was an evacuee.
Issues: 1. Whether the order of the Assistant Custodian declaring the house as evacuee property was without jurisdiction? 2. Whether the non-service of notice under Section 7(1) of the Act rendered the order void? 3. Whether the appearance of the plaintiffs before the Assistant Custodian cured the defect of non-service of notice? 4. Whether the notice issued to Bibi Sadiqua substantially complied with the requirements of the Act? 5. Whether there was sufficient evidence to support the finding that Bibi Sadiqua was an evacuee?
Ratio Decidendi: 1. The court held that the jurisdiction of Civil Courts is ousted under Sections 28 and 46 of the Administration of Evacuee Property Act, 1950, even if the Custodian, Additional Custodian, Deputy Custodian, or Assistant Custodian has wrongly decided that any person is an evacuee or any property is an evacuee property under the Act. 2. The court held that the non-service of notice under Section 7(1) of the Act does not render the order void if the interested person appears before the Assistant Custodian and contests the assertion that the property is evacuee property. 3. The court held that the appearance of the plaintiffs before the Assistant Custodian and filing of an objection petition cured the defect of non-service of notice. 4. The court held that the notice issued to Bibi Sadiqua substantially complied with the requirements of the Act, as it stated that she had opted for Pakistan and was unable to occupy, supervise, or manage her property in India. 5. The court held that there was sufficient evidence to support the finding that Bibi Sadiqua was an evacuee, as she had left India for Pakistan and was residing there permanently.
Final Decision: The court dismissed the plaintiffs' appeal, holding that the order of the Assistant Custodian declaring the house as evacuee property was not without jurisdiction.
Ramratna Singh, J.
1. This appeal by the plaintiffs is directed against the decision of an Additional Subordinate Judge, Arrah, dismissing a suit for declaration that an order dated the 22nd December 1952 passed by the Assistant Custodian of Evacuee Property, Arrah (defendant No. 1) in Evacuee Case No. 65 of 1952 (State V/s. Bibi Sadiqua) was without jurisdiction, and, therefore, a pucca house (described in Schedule A to the plaint) at village Koilwar did not vest in the defendants, defendant No. 2 being the Union of India in the Relief and Rehabilitation Department.
2. The disputed house originally belonged to one Bibi Sadiqua, wife of Fazal Karim of village Koilwar, in the district of Shahabad. She sold this house to the plaintiffs for a sum of Rs. 10,000.00 in the name of Bibi Abeda Khatoon (Plaintiff No. 1), wife of plaintiff No. 2, under a registered sale-deed dated the 29th December, 1950 (Ext. 1). On this sale-deed, the Sub-Registrar who registered the document made an endorsement that he gave a warning to the transferee that the transferor was an intending evacuee or the property sought to be transferred was an evacuee property and that the transferee will take the risk in purchasing the property. Evacuee Case No. 65 of 1952 was started by the Assistant Custodian at Arrah and notice was issued under Section 7 (1) of the Administration of Evacuee Property Act, 1950, on the 30th May 1952 to Bibi Sadiqua. This notice could not, however, be served, as it was reported that Bibi Sadiqua was not there and her husband had left India for Pakistan. Under a subsequent order dated the 3rd July 1952, a notice seems, however, to have been served by affixing the notice at the aforesaid house, and on the 25th July 1952, an objection was filed before the Assistant Custodian in the aforesaid evacuee case on behalf of Bibi Abeda Khatoon, which was signed in her own pen. In that objection, she said that she had received information about the evacuee proceeding against Bibi Sadique and that she had learnt that a notice in the name of Bibi Sadiqua had also been taken to Koilwar, whereby Bibi Sadiqua was called upon to show cause why orders should not be passed declaring her to be evacuee and all her properties to be evacuee properties under the provisions of the said Act, on the ground that she had opted to Pakistan. Thereafter Bibi Abeda Khatoon stated about her purchase and her possession over the house as also about improvements and repairs made by her in the said house and prayed that, inasmuch as the proceeding was not warranted by law. the same may be dropped. Thereafter, by the order dated the 25th July 1952 of the Assistant Custodian (Ext. B), Bibi Abeda Khatoon was directed to produce evidence in support of her statement by the 16th August 1952. No further step was, however, taken by the plaintiffs; and ultimately on the 22nd December 1952, the Assistant Custodian passed an order, the relevant extract of which is re-produced below :
"It appears from enquiry that the O. P. left for Pakistan on account of the setting up of the dominions of India and Pakistan and has since been residing there with the result that she is unable to supervise or manage her properties lying within the Sadar sub-division of the district of Shahabad. She is therefore declared an evacuee within the meaning of Clauses (i) and (ii) of Sec.2 (d) of the Administration of Evacuee Property Act, 1950. Consequently all her properties are evacuee property within the meaning of Sec.2 (f) of the Act. Accordingly, under Section 7 (1) of the Act, I declare all her properties including those described below as evacuee property.
Issue notifications under Section 7 (3) of the Act, Also issue notice in the prescribed form to the occupants under Sub-clause (4) of Section 8 of the Act to surrender possession of properties in question by 22-1-53."
Below this order, is the description of the properties, namely, the aforesaid pucca house at Koilwar and some kasht land in
