ZUMARD UL NISA Vs. CUSTODIAN OF EVACUEE PROPERTY

JUDGEMENT

(1.) This appeal is directed against the decree of a Sub-Judge 1st Class, Delhi, dismissing the appellant's suit.

(2.) According to the appellant she is the owner in possession of House No. X/1348 (Old), 2045 (New) in Gali Kalyan Pura. Delhi. She avers that she went for performing 'Haj' in July, 1947 and was thus abroad when the partition of India took place in the middle of August, 1947. On her return from pilgrimage she had to land in Karachi, by then in Pakistan, in November, 1947. She came back to Delhi in December, 1947 to her own house, namely, the house 'in suit, and has been living there in ever since. She admits that a part of the house is in the physical occupation of the tenant under her- Accordingly to the appellant one Nand Lal made a complaint to the Department of the Custodian of Evacuee Property early in 1949 to the effect that the appellant was an evacuee. This led to certain enquiries being made which showed that the appellant had never become an avacuee. All the same, her aforesaid property was wrongfully and without jurisdiction notified as evacuee property by a notification dated January 7, 1950. It is claimed that a declaration may be granted in favour of the appellant to the effect that she is the owner in possession of the aforesaid property. Alternatively, it has been pleaded that even if it be held that originally the appellant had become an evacuee she is covered by an exemption notification dated May 19, 1954 and so on, in the eye of law she is neither an avacuee nor is her property evacuee property and it be declared as such. It is further prayed that if either of the two declarations is granted to her, it could not be held that in consequence her possession is not liable to be disturbed by the Custodian of Evacuee Property or either of the other two defendants in the case. It may be mentioned here that the Custodian of Evacuee Property was the first defendant, one Chhajju Singh was the second defendant and one Mangat Rai was the third defendant in the suit and they are respectively the three respondents in the present appeal.

(3.) The three defendants/respondents contested the suit and filed written statements. The main contest was put forth by the Custodian of Evacuee Property, hereinafter referred to us the Custodian. It was first pleaded that the civil courts had no jurisdiction to try the suit. It was also pleaded that the impugned order of the Custodian notifying the property in suit as an evacuee property was legal and intra vires the powers of the Custodian. On facts it was urged that the plaintiff/appellant was an evacuee within the meaning of the various evacuee laws enacted/promulgated from time to time. The Custodian also averred that the plaintiff/appellant had applied for restoration of the property to her but the said claim was dismissed by a Competent Authority and the appeals and revisions therefrom were also dismissed. It is not necessary to set out the defence of the other two defendants because apart from filing written statements they did not take any further active interest in the suit nor have they now out in appearance.