Hon’ble Pramod Kumar Srivastava, J.—Heard counsel for the partieand perused records.

2. Plaintiff of Original Suit NO. 69/1996, Dr. Ram Raj Singh v. Ramji and others, had pleaded himself to be the owner of earlier evacuee property on basis of alleged purchase of the same by order of the Sub-Divisional Magistrate (SDM) of the area. He further pleaded that he is in possession of said disputed property as owner and defendants have no right, title or interest in this property. But they are unauthorizedly attempting to interfere in his possession. Therefore, he has sought relief for permanent injunction by original suit against defendant.

3. After affording opportunity of hearing in original suit, Civil Judge (S.D.), Ghazipur had dismissed the suit by its judgment dated 14.1.2011 with finding that plaintiff cannot be the owner of evacuee property unless it is transferred to him by Custodian General of evacuee property. In plaint disputed property was described to situate in plot No. 1912 Gha, but trial Court had given finding otherwise and held that it is not proved.

4. Against the judgment of the trial Court, Civil Appeal No. 1/2011 Dr. Ram Raj Singh v. Ramji and others, was preferred. The first appellate Court had afforded opportunity of hearing, and at the time of judgment framed two points of determination. First was as to whether disputed land is part of plot No. 1912-Gha, and second was as to whether plaintiff is in owner in possession of disputed property detailed in plaint map by letters ‘’A B C D’. After hearing the parties, the first appellate Court had decided first point of determination in favour of plaintiff appellant and held that disputed land is part of plot No. 1912-Gha. At the time of giving finding on second point of determination, the first appellate Court had confirmed this finding of trial Court that plaintiff cannot be the owner of disputed property on the basis of alleged sale in his favour by order of the SDM. This Court had again held that this evacuee property was settled with Custodian who had right to sell it, but no such sale was performed by him, and the SDM has no right to execute the sale of such property; therefore the plaintiff-appellant is not the owner of disputed property. On the basis of this finding, first appellate Court had dismissed the appeal.

5. It is pertinent to mention that in spite of second point of determination being framed on point of ownership and possession, before the dismissing the appeal, the lower appellate Court had given its finding only on point of ownership and not on point of possession.

6. Learned counsel for the appellant conceded this legal position that plaintiff cannot be the owner of evacuee property on the basis of any sale or transfer carried out in compliance of order of the SDM, because same was not the competent authority; but he further pleaded that this fact has been proved that he is in possession of disputed property on the basis if permission of SDM and this property is part of plot No. 1912-Gha, and that the defendant-respondents are not owner of this property. Therefore, on the basis of his possessory right, title he has right to get relief of permanent injunction, which was refused to him by lower appellate Court without any finding on this point.

7. These contentions of appellant side were refuted by respondent side. Counsel for the respondent contended that plaintiff appellant had obtained possession of disputed property in unlawful manner and since his ownership is not proved, therefore he is not entitled for relief of permanent injunction sought in plaint. Therefore, the appeal should be dismissed.

8. It is correct and legal finding of two lower Courts that although document of sale was executed in favour of plaintiff-appellant under the orders of SDM regarding disputed evacuee property, but he cannot acquire legal ownership right of any evacuee property, and such orders or permission of SDM is ultra vires and illegal. But there remains