CHANDRA AND ORS. Vs. BUDHA AND ORS.

JUDGEMENT

(1.) This is defendant Second Appeal. The dispute relates to plot No. 123 corresponding to new plot No. 176 comprising of an area of 39 acres situate in village Mahmoodpur Nawabwali Tehsil Sambhal district Moradabad. One Majid Ali Khan was admittedly the zamindar of the area where this land is situated. The character of the land was that of an intermediarys grove Majid Ali Khan migrated to Pakistan sometime during 1952 -55. The suit giving rise to this Second Appeal was instituted by the plaintiff respondents on May 21, 1962 alleging that the plot in question ceased to retain the character of grove and that they had been in possession for nearly 16 years preceding the suit. On Feb 19, 1951 it was further alleged they had obtained a patta of this land from Mornul Hasan Kannda of the Zamindar for the sake of regularisation of their possession. With effect from July 1, 1952 they became the sirdars of this land which was not declared evacuee property at any stage. On Aug. 18, 1960 the Managing Officer Evacuee Property however purported to sell this land to defendants Nos. 5 and 6 - - the appellants - - and on the basis thereof these defendants threatened and intended to disturb the possession of the plaintiffs. The relief sought is declaration to the effect that the sale claimed by these defendants is void and permanent injunction is also claimed to restrain the defendants from interfering with the possession of the plaintiffs over the said land.

(2.) In defence it was asserted that the land in question was declared evacuee property after issue of notice under S. 7(1) of the Administration of Evacuee Property Act 1950 to Majid Ali Khan. This was followed by sale dated Aug. 18, 1960 by the Managing Officer Evacuee Property to defendants Nos. 5 and 6. It is denied that there was any patta executed in favour of the plaintiffs by or on behalf of the zamindar or that they have been in possession and it is also maintained that the plot retains the character of grove. The bar of jurisdiction of the civil courts on the basis of S. 46 of the Administration of Evacuee Property Act 1950 and S. 331 of the U.P. Zamindari Abolition and Land Reforms Act is also pleaded.

(3.) The trial Court decreed the suit on Sept. 22, 1965 being of opinion that the land in dispute had not been declared evacuee property after issue of nonce required under S. 7(1) of the Administration of Evacuee -Property Act in respect of this land to persons concerned. The jurisdiction of the civil court was not barred The plaintiffs have been in possession and part of this land has been in their use as abadi also where they have all kinds of miscellaneous agricultural uses Majid Ali Khan retained no interest in the property subsequent to the date of vesting Defendants 5 and 6 could not claim to have acquired any right by the alleged purchase made from the Managing Officer Evacuee Property on Aug. 18, 1960. The appeals filed by the defendants against this decree were allowed on Aug. 5, 1968. The defendants preferred Second Appeal No. 2548 of 1968 The learned single Judge who decided this appeal found that there had been no notification made under S. 7 of the Administration of Evacuee Property Act in respect of the plot in dispute and the jurisdiction of the civil courts on the ground of S. 46 of that Act could not be claimed to be barred The plea in regard to the bar of jurisdiction under S. 331 of U.P. Act 1 of 1951 was left over and the appellate Court was directed to re -decide the appeals on merits in accordance with the law. Subsequent to this remand dated September 19, 1969 the lower appellate Court on Aug. 9, 1972 dismissed the appeals confirming thereby the findings arrived at by the trial Court.