ISHRAT HUSSAIN Vs. DEPUTY CUSTODIAN

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution.

(2.) THE land in dispute (Plot No. 100 situate in village Mokaratpar district Meerut) was previously owned by one Mohammadi Begum who left for Pakistan in April 1950. A notice was issued by the Assistant Custodian, Evacuee Property, Meerut, under Section 8 (4), Administration of evacuee Property Act, sometime in October 1950, asking the petitioners to show cause why the lease of the aforesaid plot should not be cancelled, as the land had become evacuee property after the departure of Mohammadi Begum to Pakistan. It appears that the petitioners had entered into possession of this land even during the time that Mohammadi Begum was in India, but the exact date when they entered into possession is a matter of dispute between the parties. The petitioners say that they obtained a lease in 1947 (1355 F.) from Mohammadi Begum, but this fact is denied in the counter-affidavit, filed on behalf of the respondents. In para. 2 of the counter-affidavit it is stated that one of the petitioners admitted before the Assistant Custodian, meerut, that he did not obtain any lease or even oral permission from Mohammadi Begum. A copy in Roman script of the statement has been filed and is attached to the counter-affidavit, as annexure A. At the same time it appears that the petitioners did enter into possession of the land one year before 1357 F. , which would roughly mean that they got into possession in 1949 or in 1950. After the receipt of the notice under Section 8 (4), the petitioners, filed objections on 15-11-1950 alleging that they had been, in possession over the plot on payment of Rs. 20/- per month as rent since 1355f. (1947 ). The Assistant Custodian recorded the statements of the witnesses produced before him, and in the end he came to the conclusion that the execution of lease by Mohammadi begum in favour of the petitioners had not been proved, he declared that the possession of the petitioners was unauthorised and passed an order on 7-3-1951 for the ejectment of the petitioners from the plot in dispute, which is numbered as plot No. 100. The petitioners then went up in revision to the Deputy Custodian, Meerut, against the aforesaid order," but he dismissed the revision. A revision was then preferred before the Custodian general of India, and he held that it appeared that the petitioners came into possession of the land in dispute about the time when Mohammadi Begum migrated to Pakistan, and on these findings he dismissed the revision on 6-5-1952. The present petition was filed on 26-3-1953 praying that a writ of mandamus be issued to the deputy Custodian restraining him from dispossessing the petitioners from plot No. 100.

(3.) THE learned counsel for the petitioners has contended that his clients acquired Bhumidhari rights over this land by paying ten times the rent to the Government in 1951, when they obtained a certificate under Section 6 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act No. 10 of 1949, and the contention is that that being the position, the Assistant Custodian has no right to dispossess the petitioners from this land. It is not denied in the counter-affidavit that the petitioners had obtained a declaration under Section 6 of the said Act, and the question is whether the petitioners have acquired Bhumidhari rights because of their obtaining a certificate. Section 18 (2) of the U. P. Zamindari Abolition and Land Reforms Act is the relevant provision, of law on the point and it may be quoted in full. It says,