ADDITIONAL CUSTODIAN OF EVACUEE PROPERTY Vs. RAMGOPAL REDDI

JUDGEMENT

(1.) O.S.No.27/1 of 1954 out of which this appeal arises, was instituted by the respondent herein for declaration of title and possession and for perpetual injunction alleging that on 15th Dai, 1356-F. (corresponding to 15th November, 1946), Abdul Aziz Khan, a contractor o! Nizamabad, sold him the patta lands belonging to him, as mentioned in Schedule I annexed to plaint, situated in Bodhan Taluk, for a sum of O.S.Rs.6,127-8-0 and gave possession to him, that thereafter he (Abdul Aziz Khan) filed an application on 5th Amardad, I358-F. (corresponding to 9th June, 1949) in Tchsil Office, Bodhan, for the transfer of patta in the records of the revenue department, that on 12th December, 1950 he (plaintiff) received a notice from the Deputy Custodian under the Evacuee Property Regulation, calling for his claims, if any, in the above property and that he being an employee in the Nizam Sugar Factory could not represent the case personally and so he engaged a lawyer, but to his astonishment he received a notice all at once from the Deputy Custodian's Office declaring the above lands as evacuee property and asking him to surrender possession of the said lands to the Tahsildar. According to the plaint allegation, the plaintiff acquired full rights of ownership and possession of lands long before the enforcement of the Evacuee Property Act, and the Deputy Custodian, on a subsequent representation being made, permitted him to produce evidence in respect of the claim and recommended his case to the Custodian. But the Custodian disagreed with the view of the Deputy Custodian and directed the plaintiff to obtain a declaration of his rights from a competent Court. It is alleged that inasmuch as the transfer of the suit property was effected prior to the enforcement of the Evacuee Property Act and the plaintiff paid the entire sale price after obtaining a receipt and has been in possession the Custodian had no right to interfere and take possession of the said property.

(2.) The Custodian in reply, stated that the entire property including the suit property belonging to Abdul Aziz Khan was declared and notified to be evacuee property and as such vested in him under the provisions of the Evacuee Property Act of 1950. While admitting that the respondent (plaintiff) made an application to the Deputy Custodian alleging that he obtained possession of the suit property by paying a sum of Rs.6,127-8-0, the Additional Custodian in exercise of the powers under section 28 of the Evacuee Property Act revised the decision and held that as the plaintiff did not possess a registered sale deed duly executed by the evacuee in his favour, no transfer of property has taken place and treated the same as evacuee property. A legal objection was also raised that section 46 (a) and (d) of the Evacuee Property Act, 1950, expressly bars the jurisdiction of the Civil Court in matters where the Custodian has jurisdiction to investigate and decide.

(3.) On these averments, in the pleadings, the following four issues were framed :- (1) Whether the Court has jurisdiction to try the suit under section 46 (a) and (d) of the Evacuee Property Act ? (2) Whether the plaintiff paid Rs.6,127-8-0 to Abdul Aziz Khan as consideration for the sale of his own lands-suit property on the 15th Dai 1356-F.(15th November, 1946) and got the actual possession of the property the same day ? (3) Whether a receipt was executed by Abdul Aziz Khan in favour of the plaintiff for Rs. 6,127-8-0 (O.S.) ? (4) What relief the parties are entitled to ? The plaintiff examined 5 witnesses. The defendant-Custodian did not produce any evidence. On the evidence produced, the trial Court held issues 2 and 3 in favour of the plaintiff. As regards issue I it held that the Civil Court had jurisdiction to entertain the suit. While considering issue 4, the trial Court came to the conclusion that the plaintiff was entitled to the benefit of section 53-A of the Transfer of Property Act and holding so, gave a decree in favour of the plaintiff declaring his right and also directing the Custodian not to interfere with the peaceful possession of the plaintiff. Aggrieved by the judgment and decree of the trial Court is this appeal 21/1 of '56 on behalf of the Custodian.