ABU BAKAR Vs. RAM BABU LAL SRIVASTAVA

JUDGEMENT

(1.) This is a plaintiffs' Second Appeal in a suit for possession by ejectment of the first defendant from the portion shaded red and indicated by the letters FBI and that described by the letters F I G I D I U V of a house mapped at the foot of the plaint, and for a perpetual injunction restraining the defendants from interfering with the raising of a partition wall as directed by the Competent Officer by his order, dated the 22nd May, 1958, under the Evacuee Interest (Separation) Act, 1951. The trial Court decreed the suit for both the reliefs but the lower appellate Court has dismissed the suit hence this Second Appeal. It is not necessary to refer to all the facts in the case. Suffice it to say that the portion of the house, on which possession was sought by the plaintiff Smt. An war Khatoon, who died in the course of the proceedings in the lower Court and is represented by her heirs and legal representatives in this Court, was given to her on separation of her non-evacuee interest, by an order dated the 22nd May, 1958 of the Competent Officer, Allahabad under the Evacuee Interest (Separation) Act. The first defendant appears to have been an allottee of the house from the Custodian. He was in possession of the house as such allottee, and did not permit the raising of a partition wall. Instead, after the said partition, he purchased the evacuee property, which had, by that time, become part of the compensation pool at a sale by public auction on the 20th September, 1959 under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. It is not disputed that the portion of the house in suit claimed by the plaintiff was in the first defendant's possession and, besides preventing the plaintiff from raising a boundary wall to separate her portion of the property, he also refused to vacate that portion. According to the first defendant, he became owner of the plaintiff's portion also under the sale certificate granted to him after the purchase of the property under the Displaced Persons (Compensation and Rehabilitation) Act. 1954. The first issue between the parties was whether the plaintiff was the owner of that portion of the house in question. The learned Munsif held that the plaintiff became the owner of the portion of the house in suit on the basis of the order of the Competent Officer, dated the 22nd May, 1958, and the gift to her of their respective shares by her two sisters (defendant-respondents Nos. 6 and 7,) and that the suit was not barred by any thing contained in Section 22-B or Section 2v of the Displaced Persons (Compensa tion and Rahabilitation) Act. 1954. The learned Munsif also held that the first defendant was not the plaintiff's tenant and no notice under Sec. 106 or HI of the Transfer of Property Act was required to be served and further that the suit was not barred by Section 41 of the Transfer of Property Act or by estoppel or acquiescence. The lower appellate Court first took note of the definition of "evacuee Property" and held that the whole of the house was declared to be evacuee property. According to the lower appellate Court, ''it cannot be evacuees namely, four sons who had migrated to Pakistan" and that "in this evacuee property, there was interest of non-evacuees also, viz, the plaintiff and her two sisters" and that "the effect of this declaration was that the said "evacuee property' vested in the Custodian for the State, vide Section 8 of the said Act. " The lower appellate Court then read the definition of "composite pro perty", as contained in the Evacueee interest (Separation) Act, 1951, and held that the evacuee property that was declared by the Assistant Custodian, as aforesaid must be deemed to be composite property for the purposes of the Evacuee Interest (Separation; Act. The lower appellate Court then noticed that the Competent Officer made a division of the house and that the order of the Competent Officer was passed before the property was put up for sale. The lower appellate Court then proceeded to consider the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, and, on an interpretation of the provisions of that Act, it held that the evacuee property declared under the provisions of the Administration of Evacuee Property Act vested in the Central Government and formed part of the compensation pool, and it was that property which has been the subject matter of sale, as specified in the certificate of sale in favour of the first defendant. According to the lower appellate Court, the Managing Officer was competent to dispose of the' evacuee property' that had vested in the Central Government and this is what he did at the sale of the property in question and the trial Court appears to have formed an impression that the non-evacuee interest in the 'evacuee property' could not vest in Central Government and could not be sold by the Managing Officer and that "was against the provisions of the Act of 1954, referred to prove, which does not speak about the vesting of evacuee or non-evacuee interest in the Central Government, rather it specifi cally provides about the vesting of 'evacuee property in the Central Govern ment. " Further, according to the lower appellate Court, it was true "that evacuee interest in the evacuee property stood extinguished under Section 12 (2) of the Act of 1954 but the non-evacuee interest was to continue and he had remedies open "which were provided by Section 20-B of that Act, and that his remedy not having been availed of by the plaintiff he could not complain against the sale of the whole property by the Managing Officer. Again, according to the lower appellate Court, the plaintiff could have gone up before the Settlement Officer under Section 22 of the Act of 1954 against the Managing Officer's action. Since she did not take either of these steps, the order of the Managing Officer became final and could not be assailed in the Civil Court except on proof of any illegality or want of jurisdiction in the Managing Officer's action. In the result, the lower appellate Court held that the plaintiff's claims was barred by the provisions of Sections 20-B, 27 and 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. Having heard learned counsel for the parties, it appears to me that the lower appellate Court was led astray, in taking the view that it has taken for, the order of Assistant Custodian himself shows that what was belonged to have vested in the Custodian was 8/11 share of the evacuees in the property, and the 3/11 share of the non-evacuee did not vest in him. Any property declared to be evacuee property under the provisions of the Administration of Evacuee Property Act vested in the Custodian under Section 8 of that Act and when the Assistant Custodian said in his order declaring property to be evacuee property that only 8/11 share therein vested in the Custodian, that clearly meant that only 8/11 share in the property had been declared evacuee property. Since the said 8/11 evacuee interest or share in the property in the nature of the house was undivided, the boundaries of the house in the description had to include the whole house. Tt was only after orders passed under the Evacuee Interest (Separation) Act 1951, that the evacuee property, which had vested in the Custodian, was divided and separated from the non-evacuee property. I may here also mention that under the provisions of Evacuee Interest (Separation) Act, it was possible for a non-evacuee to buy off the evacuee share and on that being done the whole of the property was declared non-evacuee. Conversely, it was also possible under the provisions of that Act to take money compensation for the non evacuee interest, in which case the whole of the property became evacuee property. In the present case however, although she could not arrange for money and applied for partition and separation of her non-evacuee interest from the evacuee interest in the property. That led to the order of the Competent Officer dated the 22nd May, 1958. In the present case, the sale was effected by the Managing Officer after the division of the non- evacuee share from the evacuee share. The first defendant, who was an allottee of the whole property, that is to say. was in occupation thereof as a tenant of the Custodian, was fully aware of the division and separation of the non evacuee share, and even objected to the raising of the partition wall on the ground that he was entitled to continue in occupation of the whole property and so long as he continued as tenant the partition wall could not be raised That objection of the first defendant appears to have prevailed with the Competent Officer. That does not mean that the Managing Officer, could, under the provisions of the Dis placed Persons (Compensation and Rehabilitation) Act, sell that portion of the house which had been allotted to the plaintiff and her sisters as their share on separation of it from the evacuee interest. Only the evacuee interest in the property vested in the Custodian, and that alone could properly be said to be evacuee property which became part of the compensation pool. There could be no doubt about this position and the view taken by the lower appellate Court would lead to absurd results. I might add, by virtue of Section 30 of the Evacuee Interest (Separation) Act, 1951, the provision of that Act and the Rules, and orders made there under have effect notwith standing anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. The provisions of the Administration of Evacuee Property Act are also similarly overriding, but there is no conflict between the provisions of the Administration of Evacuee Property Act and the Evacuee Interest (Separation) Act. inasmuch as even if the whole of a property has been declared to be evacuee property and has vested in the Custodian under the provisions of the Administration of Evacuee Property Act, 1950, that is defined as 'composite property under the Evacuee Interest (Separation) Act, 1951, and specific powers have been given to the Competent Officer to hear and adjudicate upon objections and to separate the evacuee interest from the non-evacuees interest, if any, in such properties. The provisions of the Displaced Persons (Compensation and Rehabilitation) Act do not have any such overriding effect, and. at any rate, it is inconceivable that any part or portion of a property, which was specifically declared to be non-evacuee by an order of the Custodian, and divided and separated from the evacuee, share by an order of the Competent Officer under the Evacuee Interest (Separation) Act, as to the present case, could ever be deemed to have formed part of the com pensation pool. No other point arises for consideration in this case, inasmuch as even the lower appellate Court has held that the first defendant was not entitled to any notice under Section 106 or Section III of the Transfer of Property Act. The decree under appeal is accordingly liable to be set aside and that of the trial Court is fit to be restored. I may add that in view of the long period of time during which the suit has remained pending, it is in the interest of justice that the plaintiff must also have a decree for mesne profits since the date of the institution of the suit up to the date of delivery of actual possession over her share by the ejectment of the first defendant, although no claim for the same has been made in the plaint and it is not even possible for me to determine the amount of mesne profits in the absence of any claim in that respect. The mesne profits must be allowed to the plaintiff in view of the rule laid down by the Supreme Court in paragraph 18 of its judgment in Bhagwati v. Chandra maul, A. I. R. 1966 S. C. 735, which is to the following effect: "once it is held that the plaintiff is entitled to eject the defendant, it follows that from the date of the decree granting the relief of eject ment to the plaintiff, the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree for ejectment in such a case must be accompanied by a direction for payment of the future mesne profits or damages. " In the present case, the decree for ejectment was originally passed by the trial Court on the 15th October, 1965 and was wrongly set aside by the lower appellate Court as far back as the 9th August, 1969. I have restored the decree of the trial Court today in the year 1982. Surely the plaintiff cannot be held accountable for the delay in obtaining relief at the hands of the Court to which she must resort by compulsion of law. The decree of eviction must date back in law to the date of the suit and consequently it is in the fitness of things that the plaintiff must have mesne profits from the date of suit to the date of defendants' eviction and delivery of possession to the plaintiff, at a reasonable rate to be determined by the trial Court on an application being made in that behalf, although no relief for mesne profits was claimed in the suit. It is needless to add that the court fee savable on mesne profits so decreed is realizable under, and in accordance with the pro cedure prescribed in Section 11 of the Court Fees Act. The appeal succeeds and is allowed. The Judgment and decree of the lower appellate Court are set aside. The decree of the trial Court is restored with costs throughout with the further direction that the trial Court shall, on an application made in that behalf by the plaintiff, determine the rate and the amount of mesne profits, to which the plaintiff would have been entitled from the date of suit up to the date of delivery of possession to her in case a claim to that effect had originally been made in the plaint; and to decree the recovery of mesne profits at the rate so determined in favour of the plain tiff against the first defendant with the condition super-added that the amount of Court fee payable thereon shall be recoverable in accordance with and under Section 11 of the Court Fees Act. .