K SREENIVASACHARI Vs. CUSTODIAN OF EVACUEE PROPERTY AND SECY TO COMMISSIONER SURVEY SETTLEMENTS AND LAND RECORDS HYD

JUDGEMENT

(1.) The petitioner feels aggrieved by refusal of respondent No.1 to order delivery of the land, which is subject-matter of the writ petition, admeasuring Ac.1-00 of area from Survey No.364 of Gowdavalli village. Identity of the land does not appear to be in dispute. The said land is admittedly in possession of original respondent No.2, who has expired and now is being represented by his legal representatives.

(2.) The petitioner's grievance is that one Quazi Faizuddin was owner of Sy. No.364 which was admeasuring more than Ac.29.00. The said Qauzi Faizuddin was declared as evacuee in the year 1950 by the appropriate authority i.e., the Custodian of Evacuee property. Due to declaration of the property as Evacuee property, the said property vested in the Custodian. Prior to the property being declared as Evacuee property, it was allegedly in possession of Court of wards. It is contended that the Court of Wards used to auction the lease hold rights of the property every year on Eksal basis. The petitioner further contends that after declaration of the property as Evacuee property, the said property was put for sale by public auction by the Custodian. The petitioner purchased the Evacuee property and obtained and sale certificate in his favour in 1969 from the competent authority. The petitioner then made several applications to obtain possession of the purchased property. The Custodian gave possession of Ac.28.24 gts. out of Sy. No.364 but the Ac. 1.00 which is disputed land, was not put in his possession right from 1969. It is alleged that respondent No.2 is occupying the said land since beginning. Respondent No.1-Custodian having failed to give possession of that one acre of land to the petitioner, the petitioner went on making his requests. Ultimately the first respondent held enquiry and found that respondent No.2 was recorded as a 'tenant' since long time. The Tenancy Register maintained by the Tenancy Commissioner in 1950 showed that respondent No.2 as the registered tenant of the said portion. By the impugned order dated 14-5-1989, the Custodian held that respondent No.2 being a statutory tenant in the disputed land could not be evicted and possession could not be given to the petitioner. It was held that the Mandal Revenue Officer may fix the rent and take necessary steps under the Tenancy Act.

(3.) The contention of the petitioner is that once the property was declared as 'Evacuee property' it vested absolutely in the Custodian free from all encumbrances and therefore, the Custodian was bound to put the petitioner, who was the purchaser of Evacuee property, in possession of the whole of it. In the first place there was no material to show that respondent No.2 was a tenant. Secondly even if he was a tenant in view of Section 9 of the Administration of the Evacuee Property Act, 1950 (hereafter referred to as 'the Act'), the Custodian was bound to evict respondent No.2 and put the petitioner in possession of the property. It is further argued that respondent No.2 had never set up his claim as a tenant at any point of time. He had participated in the auction but was unsuccessful bidder. At that time he did not disclose that he was a tenant of any portion of the property. Further, it is said that 2nd respondent had admitted that he was a servant of Quazi Faizuddin, the evacuee. He being a servant could not be a tenant in the said property. Thus the petitioner's challenge the factum of respondent No.2 being a tenant in the property in the alternate even if he is tenant, in view of Section 9 read with Section 4 of the Act, the Custodian is bound to remove respondent No.2 from the land and put the petitioner in possession.