TURAT SINGH SHADI RAM Vs. COSTODIAN OF EVACUEES PROPERTY AND REGIONEL SETTLEMENT COMMISSIONER NEW DELHI

JUDGEMENT

(1.) This petition under Articles 226 and 227 of the Constitution was admitted by a Bench of the Punjab High Court on Circuit on 6-3-1959 and the petitioner was released on bail on furnishing security for appearance before the Revenue Assistant if and when necessary after the decision of, the writ petition.

(2.) The petitioner has alleged in his writ petition that he had inherited in 1927 from his late father Shri Shadi Ram property bearing Municipal (old) No. 304 and (new) No. 1051 situated in Gali Hiranand, Maliwara, Ward No. 5. Delhi, which had been acquired by his father by purchase on 15-8-1922. From 1927 to 1941. he treated that properly as his by various ads of ownership and possession. He also mortgaged it and redeemed the mortgages so created. On 4-6-1941. there was some award in a controversy between him and his two sons when the properly was divided, one-third share falling to the petitioner's share. The award was duly registered. On 23-8-44, he mortgaged his divided one-third share to Smt. Ramjamai. A suit was instituted against the petitioner on the said mortgage for the recovery of debt and in execution of a decree for sale secured therein, the properly was advertised for sale by public auction The petitioner sought to compromise the matter with the decree holder. On 30-1-1947. the petitioner in order to satisfy the mortgage decree, sold his one-third share to one Daulat Ram son of Sardar Singh b\ means oi a registered saledeed. With the sale money, the mortgage decree was satisfied. The property was also mutated in favour of the purchaser Daulat Ram. The remaining two-thirds of the property inherited had already been mutated in favour of the petitioner's sons. Indeed, we are not concerned with that two-third share. Daulat Ram, the purchaser of one-third share, mortgaged that property with Dr. Raghbir Chand, who later instituted a suit for the recovery of the mortgage debt by sale of the property. This suit was decreed on 3-5-1950 and the Court in execution proceeded to appoint a receiver of this properly for some time. In 1950. Daulat Ram who had married a Muslim lady became a convert to Islam and changing his name to Daulat Ram alias Mohd. Din. migrated to Pakistan, with the result that the one third share was declared as evacuee property.

(3.) It is unnecessary to go into the details of the reply contained in the affidavit of Shri Y. L. Taneja, Settlement Commissioner dated 28-11-1960, in which it has been pleaded that the petitioner has been in occupation of the two-third share which is non-evacuee portion of the property and has been collecting rent from all the seven tenants of the whole property which is composite property and the evacuee portion has not yet been divided from the non-evacuee share, adding that the petitioner is occupying and in fact managing the whole of the property including evacuee property. For the purposes of this writ petition all that need be stated is that in answer to paragraph 20 (V), it has been pleaded that the liability of the petitioner has been determined under section 48 of the Administration of Evacuee Property Act. (A copy of the order in annexed herewith and marked R/3). In paragraph 13 of the reply, it may be pointed out all that has that has been stated is that a notice ftpurtog the petitioner to pay the amount was issued on 22-12-1958 which was served on the petitioner's wife. In pursuance of the said notice, he appeared before respondent No. 2 on 30-12-1958 on 30-12-1958 when he stated that nothing was due from him. He, however, asked for time up to 5-1-1959 which was granted On the said date he remained absent and warrants,, for attachment were issued on 5-1-1959. It is obvious that respondent No. 2 is the Assistant Collector and not the Custodian.