PARKASH CHAND Vs. CUSTODIAN EVACUEE PROPERTY JULLUNDUR

JUDGEMENT

(1.) IN June 1950 Parkash Chand and others filed two suits in the Court of a subordinate Judge at Ferozepore--one against the Custodian of Evacuee Property and Mal Singh, and the other against the Custodian Evacuee Property and Tahl singh. Both suits concerned landed property and the allegations an both were somewhat similar. In the suit against Tahl Singh and the Custodian it was alleged that the land in suit had belonged to one Sharajuddin who had in July 1947 sold it to plaintiff No. 5 and Babu Ram, the father of the plaintiffs 1 to 4; that Sharajuddin had died in India and never gone away to Pakistan; and that the plaintiffs had entered into possession but subsequently the Custodian of Evacuee property had allotted the land to Tahl Singh defendant who had taken possession. The plaintiffs' claim in the suit thus was for the possession of the land on the ground that it was their property and their predecessor-in-title had never become an evacuee. In the second suit against Mal Singh and the Custodian it was alleged that the property had belonged to two Muslims -- Himmat and Mst. Viro -- and himmat had mortgaged his share with Mal Singh on the 30th of July, 1947 and subsequently he as well as Mst. Viro sold their respective shares to plaintiff No. 5 and Babu Ram, the father of plaintiffs Nos. 1 to 4 that the Muslim owners had died in India and never gone to Pakistan; and that the Custodian of Evacuee Property bad therefore no right to interfere with the property. This particular suit was for a declaration of title in favour of the plaintiffs and for an injunction to restrain the Custodian of Evacuee Property from interfering with it. Both the suits were resisted on behalf of the Custodian mainly on the ground that the civil Court had no jurisdiction to go into the question whether the property in each case was or was not evacuee property or into the question whether the original owners of the property had or had not become evacuees. The trial Court did not accept this objection and went into the evidence and held in each case that the original owners of the property had died in India and not migrated to Pakistan and that the plaintiffs had acquired valid title to the property which was not evacuee property. In the result the two suits were decreed. The Custodian of Evacuee Property appealed against the decrees and the learned Senior Subordinate Judge, ferozepore, who heard the appeals, came to the conclusion that the Civil Courts were debarred from deciding the question whether the disputed property in each case was or was not evacuee property, and on this view the learned Judge allowed the appeals and dismissed both the suits with costs throughout. Two second appeals were thereupon filed in this Court and were placed before a single Judge for disposal but the learned Single Judge formed the opinion that the questions raised in, the appeals required consideration by a larger Bench, and the two appeals -- Regular Second Appeals Nos. 549 and 550 of 1951 -- were referred to this Bench.

(2.) THE short question arising in these appeals is whether on the facts of these cases it is open to the Civil Courts to determine whether the disputed property in each case is or is not evacuee property which, of course, turns on the question whether the Muslim owners of the property in each case had or had not become evacuees. Section 49 of the Administration of Evacuee Property Act, 1950, runs thus : --

(3.) IT is quite clear that the present suits pointedly invited the Civil Courts to decide whether certain Muslims had or had not become evacuees and whether their properties were or were not evacuee property, and in view of the plain meaning of section 46 of the Administration of Evacuee Property Act it is impossible to agree that the Civil Courts could go into and decide these questions. Mr. Mahajan contended that in case a dispute arises between the Custodian and another party the Custodian cannot be allowed to determine the matter whether the disputed property is or is not evacuee property, because that would make the custodian a judge in his own case. I see no force in this argument. The Custodian as such has no interest in the property entrusted to his charge by the administration of Evacuee Property Act, and it is futile to contend that he cannot be allowed to decide whether certain property is or is not evacuee property.