ASHFAQ HUSSAIN Vs. THE ASSISTANT CUSTODIAN

JUDGEMENT

(1.) This petition under Art. 226 of the Constitution arises out of a proceeding under the Administration of Evacuee Property Act (No. XXXI of 1950), hereinafter referred to as the Act. Ashfaq Husain is the petitioner.

(2.) According to his affidavit, one Abdul Salam and his sister Afsari Begum were formerly owners of house No. 7-D|12 in Mohalla Moghalpura, Moradabad. The said two persons executed a usufructuary mortgage in favour of the petitioner in 1943. In Sept. 1948 Abdul Salam and Afsari Begum sold the house to the petitioner. The petitioner has been in possession over this house since 1943. In 1951 the petitioner received a notice from the Custodian, Evacuee Property, Moradabad requiring the petitioner to show cause why he should not be evicted from the house. The petitioner filed an objection to the notice. On 29-8-1953 the petitioner's objection was upheld by the Assistant Custodian (Judicial), and- the notice under Sec. 7 of the Act was discharged. Subsequently, one Barkat Ali raised a dispute with respect to this property.- The petitioner filed an objection against Barkat Ali's application, Barkat Ali's application was dismissed on 24-1-1955, and he was directed to seek his remedy in the civil court. on 12-3-1955 an Inspector of Evacuee Properties made a re-port to the effect that Sajjad and others have migrated to Pakistan. The Inspector suggested action under Sec. 7 of the Act. Accordingly, in March 1955 the Assistant Custodian, Evacuee Property, Moradabad issued a fresh notice under Sec. 7 of the Act. The petitioner filed an objection against that notice. The objection raised by the petitioner was overruled 1?y the Assistant Custodian, Evacuee Property, Moradabad on 25-9-1956. The petitioner's contention is that the present proceeding under Sec. 7 of the Act is without jurisdiction. He has, therefore, prayed that the proceedings, which commenced with the order dated 12-3-1955, should be quashed.

(3.) The Legal Inspector in the office of the Assistant Custodian, Evacuee Property, Moradabad has filed a counter-affidavit on behalf of the opposite party (the Assistant Custodian, Judicial, Evacuee Property, Moradabad). According to the counter-affidavit, the house in dispute originally belonged to one Smt. Jafri Begum. She had one son Abdul Salam and three daughters Afsari Begum, Khurshedi Begum and Noor Jahan Begum. Only two persons, Abdul Salam and Afsari Begum, sold their shares in the house to the petitioner. Noor Jahan Begum's husband is Wajid Ali. He has migrated to Pakistan.