MOHD SHER KHAN Vs. SHAFI ULLAH

JUDGEMENT

(1.) This second appeal is by the defendants in a suit which has been decreed by the lower appellate Court for their ejectment from house No. A-6-115 in Mohalla Tarin Jalalnagar, Shahjahanpur and also for recovery from them of mesne profit at the rate of Rs. 7/- per month for a period of three years for use and occupation thereof. The trial Court had decreed the suit for joint possession of the plaintiff over the house along with these appellants.

(2.) The house belonged to Israr Hasan and Anwar Hasan who had 2/3 and 1/3rd share respectively in it. The former migrated to Pakistan and by an order dated August 17, 1950 (Ext-A-1) his 2/3rd share was declared to be evacuee interest under the Administration of Evacuee Property Act, 1950. The case of the plaintiff is that Anwar Hasan also migrated to Pakistan prior to May 7, 1954, and thus even his share in the property became evacuee interest. The case of the appellants however, is that he had not migrated to Pakistan by that time (May 7, 1954) so that his share in the house never became evacuee property. The house as a whole, it appears, was treated to be evacuee property and was put to auction as such by the Managing Officer, Shahjahanpur on February 22, 1958 and purchased by Smt. Birbal Sahni, a respondent in the present appeal (who was impleaded as defendant No. 7 in the suit). Ext. 3 is a copy of the sale certificate issued in her favour under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act. On February 22, 1963, the house was transferred by Smt. Sahni to the plaintiff. The appellants were in occupation of the house. Their ejectment was sought by the plaintiff in Suit No. 48 of 1964 treating them to be tenants. That suit was however, dismissed for the appellants' denial that they were tenants of the plaintiff and asserted that the plaintiff was the owner of only 2/3rd share in the house. The suit was dismissed on December 13, 1967 and the judgment (Ext-A-4) of the trial Court was not assailed by the plaintiff who chose to file Suit No. 282 of 1969, out of which the present Second Appeal arises, for recovery of possession over the house and of mesne profit treating the present appellants as trespassers.

(3.) The plaintiff claimed to be the owner of the house having purchased it from Smt. Birbal Sahni who had acquired it in an auction held under order of the Managing Officer treating it to be evacuee property. The appellants asserted that they were in possession as licencees from Anwar Hasan who had inducted Chhida Khan, father of appellants Mohd. Sher Khan and All Sher Khan. Their case is that the interest of Anwar Hasan having not been separated from the 2/3rd evacuee interest of Israr Hasan under the provisions of the Evacuee Interest (Separation) Act, the purported sale of the entire house by the Managing Officer to Smt. Birbal Sahni was illegal in view of Rule 93 (v) of the Displaced Persons (Compensation and Rehabilitation) Rules 1955, which preculded any sale of a composite property as defined under Section 2 (d) of the Evacuee Interest (Separation) Act. Since the evacuee interest in the property (the house) had not been separated under the provisions of that Act and no sale of the composite property could be made by the Managing Officer, no title passed to Smt. Birbal Sahni under the sale certificate (Ext. 3) nor could she pass valid title to the plaintiff through the deed of sale (Ext-2) made in his favour, The plaintiff, could, therefore not seek the ejectment of the defendants.