RAM GOPAL Vs. BANTA SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by one Ram Gopal for possession of 34 Kanals and 4 marlas of land comprising Khasra Nos. 1092, 1123 and 1225 in village Akal Garh Dhapai. This land originally belonged to Umar Din father of Gulam Mohd defendant No. 4. He effected exchange of the land with the plaintiff in the year 1946. As a result of this transaction the plaintiff gave to Umar Din 35 Kanals and 7 marlas of land bearing Khasra Nos. 2695, 1275, 940, 898 and 992 in the same village. Umar Din being an agriculturist and the plaintiff being a non-agriculturist the sanction of the Deputy Commissioner was sought under the provisions of the Punjab Alienation of Land Act, but the same was declined. The plaintiff claims that owing to the repeal of the aforesaid Act the transaction of exchange which was only voidable has become valid and operative and he is therefore entitled to possession of the land. Defendants Nos. 1 and 2 who are mortgagees of a part of the land from umar Din pleaded that they were entitled to retain the land till the same was redeemed. The plaintiff, however, admitted in the plaint that he was willing to pay off the mortgage money and therefore, the principal contesting defendant was Smt. Harbans Kaur, an allottee of Khasra No. 1092 and the Custodian also resisted the suit principally on the ground that the civil Court had no jurisdiction to try the same. On the pleadings, the following issues were framed:

(2.) BEFORE me the finding that the exchange transaction was valid from its very inception has not been assailed on behalf of the defendant-respondents. The only question that requires decision is whether any bar is created by the provisions of Section 46 of the aforesaid Act. The contention of Mr. D. N. Aggarwal on behalf of the appellant is that it is the civil Court alone which is competent to adjudicate any dispute with regard to title, and, the question whether the exchange was valid or invalid and whether the plaintiff had any rights in the land in dispute, or whether it was the property of the Muslim evacuee, fell within the jurisdiction of the civil Court and the custodian was not competent to give any decision with regard to these matters. My attention has been invited to a decision of Falshaw J. in Narendar Kumar v. Custodian general of Evacuee Property in India "p" New Delhi, AIR 1956 Punj. 163 (A ). In this case it has been held that the words of Section 46 do not bar any civil or revenue Court from entertaining any suit whatever concerning evacuee property, but only bar the adjudication by these Courts on the matter whether any particular property is or is not evacuee property. There is nothing in the words of Section 46 which bars persons from challenging the validity of the sale by which the property passed into the hands of the person who later became an evacuee. Indeed the Custodian is not competent to adjudicate upon a question of that kind, which could only be decided by an ordinary civil Court. According to the ratio of this decision the question whether after the transaction of exchange the land in dispute was the property of the appellant or of the Muslim Umar Din who later, became an evacuee can be decided only by the civil Court and the Custodian would have no jurisdiction to adjudicate upon the same. The following observations of the learned Judge deserve particular notice:

(3.) THE next question is whether Section 48 stands in the way of a decree for possession being granted in favour of the plaintiff on the finding that the transaction of exchange was valid from its very inception. In my opinion neither Section 46 nor any other provision of the Act creates such a bar. The finding with regard to the validity of exchange would have the effect of causing the cessation of the interest of the Custodian in the property in dispute and once that result is achieved the Custodian would be completely out of the picture and there will be no hurdle in the way of the civil Court granting the decree for possession.