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IN THE HIGH COURT OF ALLAHABAD
S. K. PHAUJDAR
JAMIL AHMAD - Appellant
Versus
KUMUD RAJDEO SINGH - Respondents
Second Appeal 800 Of 1995
Decided On : 09/24/1996
EVACUEE PROPERTY - SALE - JURISDICTION OF CIVIL COURT - DISPLACED PERSONS (COMPENSATION AND REHABILITATION) ACT, 1954 - EVACUEE INTEREST (SEPARATION) ACT, 1951 - ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 - SECTION 46 - SECTION 20 - SECTION 36 - RULE 92 - SECTION 65 - SECTION 41 - SALE CERTIFICATE - VALIDITY - CORRECTION - JURISDICTION OF CIVIL COURT - INTERPRETATION OF STATUTES - EFFECT OF CANCELLATION/MODIFICATION/CLARIFICATION OF SALE CERTIFICATE - RATIO DECIDENDI.
Fact of the Case:
The plaintiffs filed a suit for a declaration that the sale of the suit property beyond the evacuee property was null and void and for a mandatory injunction directing the defendants to remove all constructions and the name plate affixed at the corner rate. The plaintiffs also claimed eviction of the defendant No. 1 from the building marked 0. The defendants Nos. 2 to 8 were the Union of India and different officers under the statutes concerning management of evacuee property. The defendants Nos. 2 to 8 stated that the suit property including other property was taken over as a composite property belonging to the evacuees, Anish Ahmad, Raish Ahmad and Smt. Hamira Bibi, Evacuee and Non-Evacuee interests were separated by the competent officer and the area allotted to the custodian was given on rent to the Munsif Azamgarh as a tenant. The defendant No. 1, Dr. Raj Dev Singh, filed a separate written statement. It was stated on his behalf that the auction sale was first advertised on 22-2-59. Objections were raised on behalf of non-evacuees. Upon such objections, the auction sale was postponed. A demarcation was done of the evacuee and nonevacuees portions and only then the auction took place on 26-11-59. The defendant No. 1 was the highest bidder and the area of the property so auctioned and so purchased by him was 3. 042 acres which comprised the building, trees and other fixtures as also the gate and the guard room 0. Defendant No. 1 had been in possession of this property since 1-1-61 on payment of rent and revenue and other taxes. The sale certificate was issued to him on 14-8-64.
Finding of the Court:
The Court held that the Civil Court had jurisdiction to determine the validity of the sale certificate and the extent of the land sold. The Court further held that the order of the Chief Settlement Commissioner correcting the sale certificate was valid and that the sale was only of the evacuee share of 2.042 acres. The Court also held that the defendant was not a bona fide purchaser for value without notice and was not entitled to the benefit of Section 41 of the Transfer of Property Act.
Issues: 1. Whether the relief sought for could have been granted by the Civil Court. 2. What is the effect of the cancellation/modification/ clarification of the sale certificate dated 14-8-64 touching the suit property.
Ratio Decidendi: 1. The jurisdiction of the Civil Court was not barred under the provisions of the three Acts, namely, the Administration of Evacuee Property Act, 1950, the Evacuee Interest (Separation) Act, 1951, and the Displaced Persons (Compensation and Rehabilitation) Act, 1954, as the dispute was not covered by any provision barring the jurisdiction of the Civil Court. 2. The order of the Chief Settlement Commissioner correcting the sale certificate was valid as it was only correcting an error of the nature of the arithmetical errors and the sale was only of the evacuee share of 2.042 acres.
Final Decision: The appeal was allowed, the judgment of the lower appellate Court was set aside, and that of the trial Court was restored.
( 1 ) THE appeal was presented on 1. 8. 1995 against the first appellate judgment and decree dated 31. 5. 95 in Civil Appeal No. 457 of 1991 passed by the VIIth Additional District Judge, Azamgarh. The first appeal arose from the Original Suit No. 55 of 1965 decreeing the suit by the judgment and decree dated 27-11-68 recorded by the Additional Civil Judge, Azamgarh.
( 2 ) PRIOR to the presentation of the appeal Sri L. P. Singh had filed a caveat on 3. 7. 95. The matter came up in presence of the learned counsel for both the parties on 1. 9. 95 when the appeal was admitted and the prayer for stay of the operation of the first appellate decree together with the hearing of the appeal was expedited by another judicial order of the same date. At the time of admission, however, no substantial question of law was framed by the Judge admitting the appeal. The memo of appeal, however, indicated that ground Nos. 3,4,5 and 6 involved, indicated that ground Nos. 3,4,5,and 6 involved questions of law. When the matter came up for hearing a preliminary objection was taken on behalf of the respondents for absence of framing of substantial questions of law as required under Section 100 (4 ). C. P. C. Accordingly, two substantial questions of law were framed and those are as follows: First, what is the effect of the cancellation/modification/ clarification of the sale certificate dated 14-8-64 touching the suit property. Second, whether the relief sought for could have been granted by the Civil Court.
( 3 ) THE suit was filed by Zamil Ahmad and another for a declaration that the sale, if any, and the sale certificate dated 14-8-64 in respect of the area beyond and outside the evacuee property was null and void as also for a mandatory injunction directing the defendant Nos. 1 to 8 to remove all constructions as shown in the plaint map as also to remove the name plate affixed at the corner rate. The plaintiffs also claimed eviction of the defendant No. 1 from the building marked 0.
( 4 ) ONE Dr. Hafiz Ullah was the ancestor of the plaintiffs. The property indicated by special mark in the plaint situated in village Narauli Tappa Harbansh School. Pargana Nizamabad. Tehsil Sadar. District Azamgarh, was known as Hafiz Manzil. This Hafiz Manzil with the house, trees and other fxtures belonged to the aforesaid Dr. Hafiz Ullah, a retired Civil Surgeon. He expired in 1948 leaving behind the plaintiffs and pro forma defendants Nos. 9 to 15. The property devolved upon plaintiffs and these pro forma defendants. Of these heirs, pro forma defendants Nos. 9 to 15 and Anish Ahmad. Raish Ahmad and Hamira Bibi migrated to Pakistan while others remained in India. The share of the migrants, in the property of Dr. Hafiz Ullah was to the extent of 35/128th part as computed under the Mohamedan Law. This portion of the property was declared evacuee property under the Administration of Evacuee Property Act. This property was subsequently acquired by the Central Government under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act. The evacuee share and non-evacuee share had remained joint and so these shares were separated on 17-3-54 under the provisions of the Evacuee Interest Separation Act by the Competent Officer. An exception was taken by the Assistant Custodian of Evacuee Property and, accordingly. on 23-7-54. a revised order was passed by the Competent Officer. An exception was again taken of this order also and a fresh scheme of separation was framed which was objected to by the nonevacuees. On 14-3-56 the Competent Officer passed the final order on separation of shares of evacuees and non-evacuees. In the property of Dr. Hafiz Ullah. Upon this final order, the evacuee property comprised of an area of 0. 971 acre of had quality land and 1. 071 acre of good quality land, the total area being 2. 042 acres. On 15-7-59 the plaintiffs were intimated to give up the management of the portion of Dr. Hafiz Ullah property which
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