MST. BHAGVVATI DEVI Vs. SARDAR BALWANT SINGH

JUDGEMENT

(1.) This appeal has been filed on behalf of Shrimati Bhagwati Devi, Plaintiff decree -holder. She was the owner of a shop situate within the cantonment area of Meerut. The Defendant, Sardar Balwani Singh, is a refugee from Punjab and the Plaintiff's case was that he took wrongful possession of the shop without her consent. On this allegation she filed a suit for his ejectment and it was decreed on the 25th of October, 1948. She put the decree into execution but before the Defendant judgment -debtor could be ejected he filed an appeal and got a stay order. In the meantime, on the 18th of December, 1948, the District Magistrate requisitioned the shop under Sec. 3 of the U.P. (Temporary) Accommodation Requisition Act (No. XXV of 1947,). After the requisition order, the District Magistrate claimed to have taken possession of the shop. He thereafter gave the shop to Sardar Balwant Singh on rent. The order giving the shop to Sardar Balwant Singh is dated May 7, 1949, while the original requisition order is dated the 18th of December, 1948. In spite of the requisition order, the decree -holder continued to proceed with the execution application on the ground that the requisition order was invalid and the decree -holder was entitled to execute her decree, eject the Defendant, and take possession of the property. This contention prevailed with the executing court which granted the execution application and directed that the Defendant judgment -debtor shall hand over actual possession of the property to the decree -holder. The judgment -debtor appealed and the appeal was allowed by the learned Second Civil Judge of Meerut on the 19th of March, 1951. Against that order this execution second appeal was filed. It came up before a learned Single Judge who was of the opinion that two of the points raised merited consideration by a larger Bench and he, therefore, referred the case for decision by a Full Bench.

(2.) The first point which was taken before the learned Single Judge, and has been argued before us at some length, is that in so far as the U.P. (Temporary) Accommodation Requisition Act (hereinafter called the Act) purported to affect property situate within cantonment area it was ultra vires the Provincial Legislature. The other point raised is that the Act had ceased to be operative on the 30th of September, 1948, and, therefore, the requisition order dated the 18th of December, 1948, was illegal. A third point raised that the shop could not be requisitioned as it was in the possession of the judgment -debtor was overruled by the learned Single Judge and, though Learned Counsel raised that point before us, he was not able to explain how the District Magistrate's power of requisition under Sec. 3 of the Act, if the Act was valid, could be affected by the fact that the Plaintiff had obtained a decree for ejectment against the person actually in possession of the property.

(3.) At the conclusion of his argument, Learned Counsel wanted to raise a new point that the requisition was not for a public purpose but this point was not raised before the learned Single Judge and in the judgment of the lower appellate court it is mentioned that the point was conceded; we cannot, therefore, allow this point to be raised before us.