GIAN PARKASH Vs. STATE OF HARYANA

JUDGEMENT

(1.) This is plaintiffs' second appeal whose suit for the grant of permanent injunction was partly decreed though it was held that they were in unauthorised possession of the suit land and that they will not be dispossessed therefrom except with due process of law.

(2.) The dispute between the parties relates to one bigha and seven biswas of land comprised in khasra No. 1128. The plaintiffs claimed title to the land, in dispute, on two grounds. The first ground was that the said land was shamilat deh and that the said land in their possession was not in excess of their share in the shamilat deh in the village. They were co-sharers therein and that they were in possession of the land, in dispute, before January 26, 1950. On these allegations, it was asserted that Khasra No. 1128 did not vest in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1961. It was also pleaded that the suit filed by the Gram Panchayat earlier was dismissed by the trial Court. The second ground was that the plaintiffs had been in possession of the land, in dispute, before the year 1947 and that they had acquired title to the same by adverse possession. The present suit was filed on October 24, 1972. It was also alleged that the suit land was never evacuee property though in the revenue records, it was recorded as ghair mumkin quabristan. The plaintiffs pleaded that if the suit land was ghair mumkin quabristan then its title vested in the ahle Islam and not in the Custodian of the Evacuee property. It was also averred that they were served with notice under Section 7 of the Administration of Evacuee Property Act, 1950 (hereinafter called the Act), by the Assistant Custodian who, after hearing them, declared that the disputed land was not evacuee property. Since they apprehended interference with their possession over the suit land; hence the present suit. The suit was contested on the ground that the plaintiffs were in illegal possession of the suit land since 1956-57. Since the suit property was evacuee property being entered as ghair mumkin quabristan. it vested in the Custodian. Therefore, the Civil Court had no jurisdiction to try the suit. The trial Court found that the plaintiffs were not proved to be the owners of the suit land as it was evacuee property, that they were in its possession and that they could not be dispossessed therefrom except in accordance with law. Consequently, it decreed the plaintiffs' suit accordingly. The plaintiffs filed an appeal before the lower appellate Court who affirmed the said findings of the trial Court and. thus, maintained the decree passed in favour of the plaintiffs by it. Dissatisfied with the same, the plaintiffs have come up in second appeal to this Court.

(3.) The learned counsel for the appellants vehemently contended that it has been wrongly held by the Courts below that the suit land was evacuee property and the same had vested in the Custodian under the evacuee laws. According to the learned counsel, vide order Exhibit P. 15, dated February 10, 1955, the Assistant Custodian found that it was not an evacuee property as contemplated under Section 7 of the Act. Thus, argued the learned counsel, after having passed the said order, it could not be held that the suit land was evacuee property. On the other hand, the learned counsel for the State submitted that in the order, Exhibit P. 15, it was never found that the suit property was not evacuee property. As a matter of fact, the Assistant Custodian did not feel the necessity of entering into any controversy on this point as he had no jurisdiction in the matter because the same being shamilat deh had vested in the Gram Panchayat. Thus, according to the learned counsel, it could not be contended that it was declared to be non-evacuee property vide order, Exhibit P. 15. It was further contended that the said order was without jurisdiction. and the land had already vested in the Custodian being evacuee property as it was admittedly shown as ghair mumkin quabristan throughout in the revenue records.