The Competent Officer has the authority to determine the evacuees interest only in composite properties as defined in the Evacuee Interest (Separation) Act, and the Custodian must prove that the property is composite property.

Bishan Narain, J.

1. The Custodian informed the Competent Officer appointed under the Evacuee Interest (Separation) Act, 1951, in accordance with provisions of Section 6 of the Act to the effect that the land measuring 110 bighas situated in village Bapah, tehsil Thanesar, was composite property in which evacuees had mortgagors interest. He required separation of that interest. The Competent Officer was also informed that Darshan Lal claimed the mortgagees interest in the property. In response to the notice issued by the Competent Officer, Darshan Lal filed his claim under Section 7 of the Act alleging that the evacuees had no interest in the property when they left this country for Pakistan as the mortgagees had been in continuous possession of the land in dispute as such for more than 60 years by that time and relied on Article 148 read with Section 28 of the Indian Limitation Act. The Competent Officer held that the Custodians declaration that the evacuees as mortgagors had interest in the property was binding on him and then treating it as composite property extinguished that mortgagees interest therein in accordance with Section 9 of the Evacuee Interest (Separation) Act, 1951 . The Appellate Officer on Darshan Lals appeal affirmed this decision. Darshan Lal then applied under Article 226 of the Constitution challenging the validity of these orders. A Single Bench of this Court quashed these orders on 1-10-1958. The learned Judge in the course of his judgment observed:

"It is urged that if no determination had been made by the Custodian then it is for the Competent officer to decide whether any particular property or any interest therein is evacuee property or not, and as there has been no determination of that nature in the present case it should be left of the Competent Officer to determine the same. I am unable to accede to this contention."

The Custodian and the authorities under the Evacuee Interest (Separation) Act have filed this appeal under clause 10 of the Letters Patent challenging the correctness of the abovementioned observation. The appellants have not raised any other point before us and they agree that the impugned orders made under the Evacuee Interest (Separation) Act should be quashed but for different reasons.

2. The only point, therefore, that arises in this appeal is whether the Custodian or the Competent Officer has to determine whether the evacuees had any interest in the property after proceedings under the Evacuee Interest (Separation) Act have been taken. To decide this point it is necessary to examine the powers conferred on the Competent Officer under the Evacuees Interest (Separation) Act.

3. Now under Section 6 of the Evacuee Interest (Separation) Act, the Custodian or a claimant may approach the Competent Officer for separation of the evacuees interest wherein non-evacuees have also an interest. Such a property is called "composite property" in the Act. It is obvious from the provisions of Section 6 that the Competent Officer has jurisdiction to determine the evacuees interest and then to separate it only if the property concerned is composite property as defined in the Act and not otherwise. The condition precedent for the exercise of powers under the Evacuee Interest (Separation) Act is that the property must be composite property. Now this expression "composite property" has been defined in Section 2(d) of the Act as meaning :

"any property which, or any property in which an interest, has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950 (31 of 1950) and: (i) in which the interest of the evacuee consists of an undivided share in the property held by him as a co-sharer or partner of any other person, not being an evacuee or

(ii) in which the interest of the evacuee is subject to mortgage in any form in favour of a person, not being an evacuee; or

(iii) in which the interest of a person, not being an evacuee,