DEVI CHAND MEHRA Vs. HAR SWARUP AND

JUDGEMENT

(1.) THIS is a defendant's appeal arising from a suit filed under sections 59. 61 and 183 of the U. P. Tenancy Act, 1939, the Suit was instituted in the revenue court and one of the issues framed was as to whether the court had jurisdiction to decide the case. The Assistant Collector, First Class, Bareilly recorded a finding that the suit was beyond the jurisdiction of the revenue court and consequently ordered the case to be consigned to record. On appeal be the plaintiff, Har Swarup, the rinding was set aside and the suit was remanded to the trial court for further proceedings in accornance with law. The defendant has come to this Court in appeal against the order, contending that the suit was not competent. Briefly stated that facts are these. The suit was in respect of plot No. 375 A situate within the municipal limits of Bareilly in village Udaipur Khas, Pargana and Tahsil Bareilly. It appears that the plot contained a Kothi known as Langoor Wall Kothi and described as 375B in an area of 8 Biswas while the other portion 375A being land contained several trees. The Khasra of 1358 Fasli describes 375A as Benjar and 375B as Abadi with plaintiff Har Swarup in the tenant's column. It appears that Raza Husain Khan and Sajna Begum who were co-sharers of the property had migrated to Pakistan and the Assistant Custodian of Bareilly had passed an order on 8.8.1954 declaring them to be evacuees and their share to be evacuee property, Action to separate the share of the evacuees under the Evacues interest (Separation) Act, 1951 was taken and the entire property was sold by the Custodian as the separate share of the evacuees. In the sale certificate dated 20 6.1961 the property was shown as purchased by the defendant Devi Chand. A second sale certificate dated 5.4. 1962 was also prepared giving more details of the property and annexing the site plan in which the Kothi and land were indicated as adjoining properties. On 27.6.1962 Har Swarup plaintiff brought the present suit in the revenue court with the allegation that the defendant Devi Chand had absolutely no right or interest in plot No. 375A, measuring 2 Bighas 8 Biswas and that the plaintiff himself had become its hereditary tenant by virtue of his possession adversely to and without the consent of the landlord from the beginning of 1354 Fasli with the result that from early 1357 Fasli he had acquired rights of hereditary tenant under section 180 (2) of the U. P. Tenancy Act (Act 17 of 1939). It was alleged that in December 1961 the defendant appellant had forcibly taken possession of the disputed land by dispossession of the plaintiff-respondent and himself clained to be the owner of the property. Therefore the reliefs claimed in the suit were a declaration of the plaintiff's tenancy rights and recovery of possession of the land in dispute. Since the plaintiff was non-suited on the preliminary ground of jurisdiction it is not necessary for me to refer to other issues which arose in the suit. The question to which I must confine myself is as to whether the plaintiff's suit was maintainable and the revenue court had jurisdiction to decide the same or whether the suit was barred by the provisions of the Evacuee Interest (Separation) Act, 1951 and the Administration of Evacuee Property Act, 1950. The trial court was of the view that the plaintiff should have submitted his claim under section 7 of the Evacuee Interest (Separation) Act and he having failed to do so, the suit was barred by sections 18 and 20 of that Act. It was also held by the Assistant Collector that the suit was barred by the provisions of section 46 of the Administration of Evacuee Property Act. It is necessary to examine the scheme of these two Acts. Section 7 of the Evacuee Interest (Separation) Act requires that any person claiming an interest in a composite property may submit to the competent office a statement of his claim in writing. Section 2 (b) of that Act defines 'claim5 as "the assertion by any person, not being an evacuee, of any right, title or interest in any property" either as a co-sharer or partner of an evacuee property or as a mortgagee of the interest of an evacuee in the property. Section 18 of that Act provides that "save as otherwise expressly provided in this Act, every order made by any appellate officer or competent officer shall be final and shall not be called in question in any court by way of an appeal or revision or "in any original suit, application or execution proceedings." Section 20 of that Act bars the jurisdiction of Civil or revenue courts in matters relating to any composite property which a competent officer is empowered under the Act to decide. It is manifest from these provisions that the bar of sections 18 and 20 would apply only where a person asserts any right, title or interest of co-sharer or partner or as a mortgagee of the interest of evacuees in the propsrty. Section 2 (b) of that Act does not include an assertion of tenancy rig'ats which, therefore, fall outside and definion of a claim. The plaintiff's suit was clearly for a declaration of his tenancy rights and consequently in my opinion the suit was not barred by section 7, 18 and 20 of the Evacuee Interest (Separation) Act, 1951. A look at the relevant provisions of the Administration of Evacuee Property Act, 1950 also leads to the same conclusion. The Act dfines an "evacuee" as well as "evacuee property" section 2 (R) of that act defines evacuee property" as meaning any property of an evacuee whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity. Section 4 of that Act provids that "the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding 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". Section 7 empowers the Custodian to give notice where he is of opinion that certain property is evacuee property and after holding such enquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property under Section 8 any property declared to be evacuee property under section 7 shall be deemed to have vested in the Custodian for the State and sub-section (4) of Section 8 says that a person in possession of any evacuee property shall be deemed to holding it on behalf of the Custodian. Section 9 gives the summary power of the Custodian to deal with the evacuee property. Section 10 enumerates the powers and duties of the Custodian generally. Section 12 deals with power of the Custodian to cancel leases or allotments of evacuee property. Section 28 which deals with the finality of the orders passed by the Custodian is important and may be quoted: "Finality of orders under this Chapter-Save as otherwise expressly provided in this Chapter, every order made by the Custodian General District Judge, Custodian, Additional Custodian, Authorised Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceedings." Section 46 which bars the jurisdiction of civil and revenue courts reads as follows; "46. Jurisdiction of civil courts barred in certain matters Save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction: (a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or (b) Omitted; (c) to question the legality of any action taken by the Custodian-General or the Custodian under this Act; or (d) in respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine." It will thus be seen that the combined effect of Sections 28 and 46 of the Administration of Evacuee Property Act is to bar the jurisdiction of any court, civil or revenue, to entertain a suit with respect to an order passed by the Custodian in accordance with the provisions of this Act. But the synopsis of the relevant provisions of the Act does not show that the revenue court had no jurisdiction to entertain a suit like the one in the instant case filed under Sections 59, 61 and 183 of the U. P. Tenancy Act, 1939. The effect of an order passed under Section 7 of the Administration of Evacuee Property Act is to vest the property in the Custodian under Section 8 and confer upon him certain powers of dealing with the property which are provided in Sections 9, 10, 11 and 12 etc. The jurisdiction of the Custodian cannot be extened beyond those limits nor can the jurisdiction of civil of revenue courts be ousted beyond the limits circumscribed by the Administration of Evacuee Property Act. In order to determine as to whether the right of instituting a suit is abrogated by the Administration of Evacuee Property Act a clear conception of the legal implications of an order declaring a property to be evacuee property is essential. It will be evident from the definition of 'evacuee property" contained in the Act to which I have already referred that an order under Section 7 has only two legal implications. Whenever the Custodian has to decide as to whether he should or should not declare a property to be an evacuee property the only considerations are(1) whether the particular person has or has not become an evacuee and (2) whether the property in dispute belongs to him. Both these questions have to be decided under Section 7 of the Act by the Custodian. The ouster of the jurisdiction of the civil and revenue courts must, therefore, be deemed to be limited to these two points. In other words, it is the property interest of the property which vests in the Custodian after such declaration under Section 7 of the Act with respect to that property. There is no indication that tenancy rights should also be covered within the ambit of Section 17. There is nothing to indicate that the tenancy rights stand extinguished by the order passed under Section 7. On the other hand, it appears that sub-section (4) of Section 8 gives a statutory recognition to the rights of tenants of evacuee property. It expressly provides that where after any evacuee property has vested in the Custodian any person is in possession thereof, he shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorised by him in his behalf. It follows, therefore, that if on the vesting of the property in the Custodian the plaintiff in the instant case was a tenant in possession he would be deemed to be in possession on behalf of the Custodian under provisions of law. Therefore, it cannot be said that it was the duty of the plaintiff to set up his tenancy rights before the Custodian under Section 7 of the Act. No Provision of law has been pointed out to me in support of the proposition that the plaintiff was bound to set up his title before the Custodian. As regards subsection (4) of Section 8 it may be observed with respect that as held in P.R. Nayak v. B.D. Bharucha(A. I. R. 1951 Bombay 406), the provision only deals with those cases where possession of the person referred to therein is unlawful from its very inception. The proprietory rights in the evacuee property surely vest in the Custodian but there is no warrant for the proposition that the subsisting tenancy rights come to an end. In fact, the Custodian may very well be deemed to be a land holder of the property in such cases and there is nothing in law to prevent the obtaining of a declaration of hereditary tenancy against him in respect of his property. I am fortified in the view that I am taking by a decision of this Court in Achoo Khan v. Assistant Custodian Managing Officer, Fatehgarh(1965 A. L. J. 563), in which S. N. Singh, J., summed up the legal position in these words: "I have given the resume of the relevant sections of the Act and it appears that the Revenue Court's jurisdiction to entertain a suit under Sec. 59 of the U. P. Tenancy Act was not barred by any provision of the Administration of Evacuee Property Act. The Revenue Court was, therefore, competent to decide a suit under Section 59 of the U. P. Tenancy Act even alter the passing of the Administration of Evacuee Property Act." Learned counsel for the appellant strongly relied on. a decision of the Supreme Court in Custodian, Evacuee Property, Punjab v. Jafran Begum(A.I. R. 1968 S. C. 169), but in my opinion he can hardly derive any assistance from that judgment. That case dealt with the assertion of proprietory rights in the evacuee property based on a will set up by the plaintiff. In that connection it was observed that since under Section 7 of the Act the Custodian has a jurisdistion to determine whether certain property is or is not evacuee property there is no reason to hold that under Section 7 the Custodian cannot decide what are railed complicated questions of law or questions of title. It is difficult to see how a Custodian can award deciding a question of title if is raised before him in proceedings under Section 7. In these circumstances it was held that Section 46 was a complete bar to the jurisdiction of civil or revenue courts in any matter which could be decided under Section 7. In my opinion the determination of tenancy rights was not a matter which could be decided under Section 7 and consequently a suit for declaration of such rights cannot be said to be barred by Sections 28 and 46 of the Administration of Evacuee Property Act. For these reasons I find no force in this appeal and it is accordingly dismissed. The suit is remanded to the trial court for further proceedings in accordance with law. The cost of this appeal shall abide the result of the suit.