SHEO RAM Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioners challenge the order passed by the Custodian General dismissing a petition filed in revision against the alleged allotment of the petitioners' properties to private respondents. The petitioners' contention was that the property that had been allotted under the Administration of Evacuee Property Act, 1950 (for short, 'the Act') and the Rules, had never vested with the Custodian in order to make possible for him to make allotment. The property, according to them, were held by the predecessors and allowed for some persons to be occupancy tenants. They had abandoned the property much before the partition of the country and the property had come back into possession of the petitioners' father himself. No notice of allotment to the petitioners before such allotment was effected in favour of the private respondents. According to the petitioners, they came to know about the alleged allotment only when the private respondents sought to disturb their possession claiming under allotment order from the Custodian.

(2.) THE petitioners had filed a civil suit for declaration against the allottees as well as the Custodian. The suit was dismissed and the appeal was also dismissed not on the merits but on a finding that the civil court jurisdiction had been ousted by the provisions of the Administration of Evacuee Property Act, 1950. The petitioners, therefore, wanted the allotment cancelled by claiming that it was not evacuee property, which could have been allotted to the private respondents. This revision had been dismissed by the Custodian General holding that the petitioners had not been able to show that the property belonged to father and the property could not have vested in the State.

(3.) IN this case, when the petitioner was claiming that the property had not been notified at any time, the Government ought to have seen ascertained the basis on which the Custodian claimed a right and allotted the same to the private respondents. When the petitioner was contending again that it had not been even notified, the Custodian General could not have asked for proof from the petitioners, requiring ownership details. It is a fundamental precept of law that possession in nine points in law and a person who is in possession, cannot be ousted otherwise than by a person, who proves a better entitlement. The Estate officer cannot eject a person in possession unless he shows that it was an evacuee property and abandoned by an occupancy tenant or by an owner on or after 1st March, 1947. The Custodian General had clearly placed the onus wrongly on the petitioners to establish their ownership. On the contrary, it should have been the duty of the Custodian to show that it was an evacuee property and notified as such. The impugned order is erroneous and consequently set aside. I, however, leave the question still open for the Government to take independent action if, they establish that it was an evacuee property and notified as such and use that such a ground for recovery from the petitioners if permissible under law and if there is no fetter on the issue of limitation.