RAMSHARAN Vs. MAHIPATRAO

JUDGEMENT

(1.) Two short but substantial questions of law are agitated in this appeal and I must commend Shri Swami Saran's honest endeavour to steer clear of the bar of S.100, C.P.C. realising that concurrent findings of two Courts against the appellant/defendant offer him only a limited option.

(2.) It is not disputed that the respondent/plaintiff based his suit on title for recovery of possession of the property in question which, according to Shri Swami Saran, had been duly declared "evacuee property" under S.7 of the Administration of Evacuee Property Act, for short, the Act. Counsel's contention is that the Courts below erred in law in not holding the suit to be barred by the Act and he drew my attention to Ss.28 and 46 of the Act to buttress his submission. Counsel has also drawn my attention to Ex. D3, which is a copy of the order passed in the year 1957 under S.7 of the Act, by the Assistant Custodian of Evacuee Property, Gwalior. Counsel's second contention is that because the Custodian has not been impleaded in the suit though he was a necessary party, the suit was liable to be dismissed on that ground itself. Unfortunately, in my opinion, both contentions merit a single answer that they are meritless, for reason to follow.

(3.) Respondent's counsel, Shri Arun Mishra, has rightly drawn my attention to the concurrent findings of the two Courts below to stress that the order passed under Ex. D-3 ought to be treated as nullity and that the plaintiff having not challenged the order, which the defendant rather pleaded in his defence as a shield, the suit could not be dismissed on the ground that the Assistant Custodian of the Evacuee Property, who had passed the order, has not been impleaded in the case. Counsel has also drawn my attention to Ex. P-2, which is a copy of an order passed by the Deputy Custodian refusing to declare the same property to be "evacuee property". It is clearly manifested on the face of the order that upon hearing plaintiff's father, Sripat Rao, his case that the property belonged to him and not to evacuee (Karima) was accepted, Shri Mishra. therefore, rightly contended that because the plaintiff was not aware of the subsequent proceedings of 1957, the same having been initiated without notice to him, the order passed therein, purporting to nullify the earlier order passed in 1953 (as Ex. P-2), was itself a nullity. Counsel contends, therefore, that the Courts below have rightly held that there was no legal bar which prohibited the Court from declaring plaintiffs title to the suit property on the evidence on record.