Under section 10 (a) (iv) of the Evacuee Interest (Separation) Act, 1951, the competent officer has the power to deliver actual physical possession of the shares allotted to the evacuee and the claimant on partition, and the term 'possession' in this context means actual physical possession.

( 1 ) THE short question in this appeal is about the meaning of the word possession as used in section 10 (a) (iv) of the Evacuee Interest (Separation) Act, 1951 (Act of 1951 ).

( 2 ) THE appellant Suleman and some of his collaterals were co-sharers in land comprising Khewat No. 19 Khatauni No. 115 of 121 in village Satbari Delhi. They were the owners in possession of this land before the partition of the country. On account of the division of the country and the communal disturbances which followed in its wake the collaterals migrated to Pakistan. On their migration their right, title and interest in the property vested in the Custodian of Evacuee Property by virtue of the Administration of Evacuee Property Act, 1950 (Act of 1950 ).

( 3 ) THE share of the collaterals in the said land was found to be 11/12. The appellant s share was only 1/12. The appellant was a non-evacuee. The Custodian laid in- formation before the Competent Officer under the Act of 1951 that in the aforesaid agricultural land which was a composite property the evacuees share which had vested in him be separated from the share of the appellant, a nonevacuee. The Competent Officer partitioned the land by his order dated 16th December, 1959. The composite property which was a joint Khata was divided into two separate Khataunies. To the share of the appellant he allotted Khasra No. 77/2 measuring 4 bighas 2 biswas. To the Custodian he allotted the remaining land measuring 44 bighas 15 biswas. The land allotted to the Custodian included Khasra No. 23/1 measuring 4 bighas. We are mentioning this because much will turn on this particular Khasra as we shall see later.

( 4 ) ON April 29, 1970 the appellant made an application to the Competent Officer requesting that possession of the land allotted to him on partition be delivered to him. One Fauji, respondent No. 4, atonce filed objections to this application alleging that he was in possession of the land allotted to the appellant and that he was a tenant of the Custodian therein and as such only symbolic possession can be given to the appellant. The objections of Fauji were dismissed by the Competent Officer. He held that Fauji was an unauthorised occupant. He ruled that the appellant was entitled to the actual delivery of possession of the land allotted to him on partition. He issued warrant for possession. This was his decision on March 16, 1972.

( 5 ) FROM theorder of the Competent Officer dated 16th March 1972 Fauji filed a revision petition before the Appellate Officer under the Act of 1951. The Appellate Officer took a different view. He held that only symbolic possession could be delivered to the appellant and not actual physical possession as had been ordered by the Competent Officer, He set aside the order of the Competent Officer on June 30, 1972.

( 6 ) THE appellant filed a writ petition under Article 226 of the Constitution in this court in 1972 challenging the validity of the order of the Appellate Officer. In the writ petition his main prayer was that he is entitled to actual physical possession of the land which has been allotted to him on partition. The learned single judge did not accept the contention of the appellant. He dismissed the writ petition on 8th February, 1980. From the order of the learned judge this appeal has been brought under clause 10 of the letters patent.

( 7 ) ONE more fact may be stated here to understand the dispute. After the migration of appellant s collaterals then- interest: vested in the Custodian under the Act of 1950. As the interest of the collaterals was 11/12 the Custodian of Evacuee Property took over the management of the entire property. It appears that near about 1954 Fauji, respondent No. 4, entered on this land. It also appears that for some time the Custodian realised some money from him. Fauji himself has produced a receipt dated 20th May 1971 which shows the payment of "rent/lease money" to the Custodian. On the strength of this pay