UNION OF INDIA Vs. ALLAHAWAL

JUDGEMENT

(1.) This regular second appeal under Section 100 of the Code of Civil Procedure has been filed by the Union of India and the Custodian of Evacuee's properly defendants and is directed against the appellate judgment and decree of Shri R. N. Aggarwal, Additional District Judge, Delhi dated 27th April, 1966 by which the learned Judge allowed the appeal and reversing the decree of the trial Court dated 6th September, 1963, finally decreed the suit of the plaintiffs for a declaration that the notification notifying the property in dispute as the evacuee property was illegal and without jurisdiction.

(2.) The facts giving rise to this appeal are that on 8th of May, 1929, Abdul Gaffar and Allahawala purchased the property in dispute by a sale-deed (Exhibit P-2) and after the purchase, they, on 29th September, 1931, divided the property between them by a release-deed and sale-deed, with the result that Abdul Gaffar became the owner of property No. 37-A (corresponding to new No. 54) while Allahawala became the owner of property No. 37 (present Nos. 56 to 61) Mst. Fatma (also known as Fahiman) who was sister of Abdul Gaffar and wife of Allahawala became the sole owner of 37 (corresponding to 55 new) vide Exhibit P-1. It may be mentioned that the property of Allahawala bearing No. 37 originally, now bears Nos. 55 to 61 out of which No. 55 belongs to Mst. Fatma. It may also be noted that the property owned by Allahawala has been released to him by the Custodian while the property No. 55 of Fatma is in dispute in these proceedings.

(3.) Fatma Bi died at Delhi oh 23rd October, 1954 and Abdul Gaffar died at Delhi on the 30th December, 1958. The legal, representatives of Mst. Fatma instituted the suit giving rise to this appeal being aggrieved by notification of the property in dispute (No. 55) on 23rd February, 1951 as evacuee's property. The other material facts alleged in the plaint are that the other properties of Allahawala and his wife (Nos. 55 to 61) mentioned above were notified to be evacuee properties but the same were restored to Allahawala except No. 55. However, in respect of the property in dispute, Allahawala earlier raised an objection on 8th July, 1949 and then he undertook to produce Fatma Bi to support her affidavit dated 28th October, 1949 which was rejected. Abdul Gaffar, as legal representative of Fatma Bi, then filed an application under Section 16 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Act) for restoration of the property. It was rejected on 28th February, 1958 merely on the ground that it was barred by time and a review of the same applied for on 2nd of September, 1959 was dismissed on 4th February, 1960.