SARJOO PROSAD, C.J.—This is an application under Art.226 of the Constitution. The petitioner Mohammed Ramzan prays for an appropriate writ declaring the order of the Assistant Custodian, Jaipur, dated 7th January, 1958, illegal and prohibiting him from taking possession of the disputed piece of land.

2. The relevant facts are brief. One Wali Mohammed; S/o Karim Baksh, residing at Jaipur, was a cosharer in house No. 8/1120, situate in Munshi Jailal-ka-Rasta, Jaipur. He also owned a piece of open land situate in another quarter of the Town under specific boundaries as given in the petition. Wali Mohammed died at Jaipur on 10th of August, 1940, leaving behind four sons, Abdulrahman, Habibulrahman, Takiur Rahman and Ataulrahman. The said sons of Walimohammed deceased mortgaged the aforesaid pieces of land with the petitioner under a registered mortgage deed dated 2nd August, 1945, for a sum of Rs. 1,000 The mortgage was, according to the petitioner, a mortgage by conditional sale, under the terms whereof if the mortgage money was not paid within two years, the mortgagors would not be entitled to redeem. The petitioner accordingly obtained possession of the land and was also at liberty to build a house thereon. Admittedly the mortgage has not been redeemed and the petitioner continues to be in possession of the land.

3. Some years thereafter, it appears that Habibulrahman migrated to Pakistan and his property was declared evacuee property on 1st March, 1950. The other co-sharers in the house, including the remaining three sons of Walimohammed namely, Abdulrahman, Takiur Rahman and Atualrahman, appeared before the Assistant Custodian on 4th August, 1951, and admitted the fact of migration of Habibulrahman and some of the other cosharers in the house to Pakistan, i After some time the other three brothers of Habibulrahman also left for Pakistan, when fresh proceedings under the Administration of Evacuee Property Act, 1950 (Act No. XXXI of 1950, hereinafter called the Act), were initiated. Notices were issued under sec. 7 of the Act on 22nd May, 1953, and by an order dated 25th June, 1953, passed by the Additional Deputy Custodian, their shares in the house were also declared evacuee property on the admission of the other cosharers. The Deputy Custodian held the share of Habibulrahman in the house to have vested in the Custodian since 3rd October, 1949, and that of his other three brothers with effect from 4th June, 1950. It is not clear from the above order of the Deputy Custodian as to when Habibulrahman actually migrated, since the officer was merely content to remark that Habibulrahman left India much earlier. It may be persumably long before 30th October, 1949, when his share was separated from that of his other cosharers in the house.

4. The case; of the petitioner is that there were no regular proceedings regarding the disputed plot mortgaged by the sons of Walimohammed to the petitioner in order to declare the same evacuee property and no notice under sec. 7 of the Act was ever issued in respect of the land. Nevertheless the Assistant Custodian, Jaipur, demanded possession of the plot in question from the petitioner, by issuing a notice to him under sec. 8 of the Act on 3rd Dec, 1957. The petitioner objected to the demand; but the Managing Officer cum Assistant Custodian by his order dated 7th January, 1955, which is assailed in this petition has rejected his claim. He has accordingly moved this Court for quashing the said order as illegal and without jurisdiction and as an unlawful attempt to interfere with the title and possession of the petitioner in the disputed land. The grounds on which the order is challenged are substantially these:

(1) That there was no notice issued or served on the petitioner in respect of the disputed land under sec. 7 of the Act;

(2) That in the absence of any such notice the land did nos vest in the Custodian who had, therefore, no authority under sec. 8 of the Act to demand possession from the petiti

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