Ownership rights acquired prior to partition are valid, and the jurisdiction of Civil Courts remains intact if property is not declared evacuee property by the custodian.

JUDGMENT

Deepak Gupta, J.

By way of this Regular Second Appeal, the unsuccessful defendants (appellants herein) have approached this Court challenging the concur-rent finding of the Courts below, whereby Civil Suit No.110 of 1984 titled as 'Kesar Chander v. Punjab State and others' filed by the plaintiff (respondent herein) for declaration was decreed; and the first appeal filed by the appellants was dismissed.

2. In order to avoid confusion, parties shall be referred as per their status before ld. lower Court. During appeal, LRs of plaintiff - respondent were brought on record.

3. According to the plaintiff, he had purchased the suit land from previous owners Krishan Kumar and Jagdish Chander for consideration of Rs. 5300/- vide registered sale deed dated 02.12.1943 (Ex.P1); that defendants had no concern with the said land but were threatening to dispossess him (plaintiff) forcibly. Plaintiff prayed for decree of declaration that he is the owner in possession of the suit land with further prayer for decree of permanent injunction to restrain the defendants from dispossessing him from the suit land in any manner.

4. The stand of the defendants was that though Krishan Kumar and Jagdish Chander were earlier owner of the suit land, from whom plaintiff purchased the same in 1943, but it is Noor Mohammad etc., who were recorded as occupancy tenants in the suit land and who continued to possess the same till 1946-47 i.e. till partition of the country and thus, plaintiff was not in possession of the suit land. It was further pleaded that it is only after the migration of the Muslim occupants/tenants that the plaintiff occupied the land as tenant at will. Defendants pleaded further that custodian of the evacuee property stepped into the shoes of the Muslim Occupancy Tenants after their migration to Pakistan in 1947 and thereafter, custodian had become owner of the suit land and plaintiff was left with no right, title or interest therein. With this stand, defendants prayed for dismissal of the suit.

5. Necessary issues were framed. The material issue before the Court to decide was as to whether the plaintiff is the owner in possession of the suit land or not? Apart from the oral evidence, plaintiff relied upon sale deed Ex.P1 besides revenue record (Jamabandies) Ex. P5 to P9. Defendants did not adduce any evidence to support their stand. After hearing both the sides, ld. trial Court vide its judgment dated 13.06.1984 held the plaintiff to be owner in possession of the suit land and thus, decreed the suit. Defendants filed First Appeal. The said Regular Civil Appeal No.188 of 1985 was dismissed by the ld. Addl. District Judge, Jalandhar on 01.08.1986 by upholding the findings recorded by the trial Court.

6.1 Assailing the aforesaid findings, it is contended by ld. AAG, Punjab appearing on behalf of the appellants that the Courts below have erred in appreciating the controversy; that after partition of the country, as the Muslim occupancy tenant migrated, the suit land automatically vested in the custodian by virtue of Section 4 of the East Punjab Evacuees (Administration of Property) Act, 1947 [for short the 1947 Act']; that there was no need to hold any inquiry under section 7 of the Administration of Evacuee Property Act, 1950 [for short 'the 1950 Act'] before vesting of the occupancy rights held by the Muslims; that possession of the suit land was with the custodian, when the Muslim evacuees migrated to Pakistan and that these aspects have been ignored by the Courts below.

6.2 Ld. AAG, Punjab for the appellants relied upon Sham Singh v. The Custodian in General, New Delhi, 1961 PLR 420 and M/s Hazi Esmail Noor Mohammad & Co. & Others v. The Competent Officer, Lucknow, AIR 1967 SC 1244.

7.1 Refuting the aforesaid contentions, ld. counsel for the respondent-plaintiff contends that there is neither any pleading nor any evidence on the part of defendants-appellants regarding automatic vesting of the ownership rights by virtue of 1947 Act