H.S. ANAND Vs. UNION OF INDIA

JUDGEMENT

(1.) THE brief facts necessary for the adjudication of this petition are that the properties known as "Garden View" and "Newton Villa" situated at Lower Kaithu, Shimla were owned by one Capt. Malik Umarhayat Khan, who had purchased the same from its previous owner W.J.S. Britts by a registered sale deed dated 21.10.1913 and mutation to that effect was attested on 4th January, 1921. The properties became evacuee properties after partition and were vested with respondent No. 1 under the provisions of Administration of Evacuee Properties Act, 1951. The properties were put to auction by inviting sealed tenders . through the Regional Settlement Commissioner and the property Garden View' was given evacuee property No. 220/4 comprised Khasra No. 141 measuring 4230 sq. yards. The predecessor in interest of the petitioners late Sardar Mool Singh being the general attorney of one Sh. Kesho Nath Khurana gave the highest bid with respect to the property known as 'Garden View', the area of which as per auction notice was mentioned as 4230 sq. yards. It has further been averred in the petition that the bid given by Sardar Mool Singh being the highest was accepted by the Regional Settlement Commissioner on 25.9.1955. The sale was confirmed on 31.10.1955 and a regular sale certificate in favour of Sh. Kesho Nath Khurana was issued by Managing Officer (Sales), Ambala on 7.6.1963. Shri Kesho Nath Khurana was declared to be the purchaser of the property with effect from 7.6.1957. The area at the time of auction and in the tenders invited by the respondent No. 1 as per the averments made in the petition through Regional Settlement Commissioner was shown as 4230 sq. yards, but the same was shown by way of boundaries in the sale certificate. Sh. Kesho Nath Khurana through Sardar Mool Singh, predecessor in interest of petitioners applied for the demarcation of area transferred in his favour to the concerned authorities and for putting him in possession of the area on the spot. Consequently the District Rent and Managing Officer, Ambala vide letter dated 21.8.1959 intimated Sh. Kesho Nath Khurana through his attorney Shri Mool Singh that the area transferred in his favour was 4230 sq. yards after effecting the demarcation by the District Rent and Managing Officer, Ambala and the same was reflected as such as per the Municipal records.

(2.) THE predecessor in interest of the petitioner was informed by Naib Tehsildar on 8.7.1957 that the area as per the Municipal records was also 4230 sq. yards and he was entitled to the possession of the same. It is further averred in the petition that Sh. Tek Chand Chitkara had filed an appeal before the Chief Settlement Commissioner against the order of the Managing Officer (Sale), who found the predecessor in interest of the petitioners to be entitled to an area measuring 4230 sq. yards. The appeal was dismissed by the Chief Settlement Commissioner and the order of the Managing Officer (Sale) was upheld vide 24.2.1959. The predecessor in interest of the petitioner filed a suit for possession on the basis of order dated 24.2.1959 alleging that the same had become final and on the basis of the said order he was entitled to the possession of 1800 sq. yards of khasra No. 141 which after the settlement was given new khasra Nos. 267, 272, 273, 317, 395, 396 and 397. The suit of the predecessor in interest was resisted by the owner of the property known as "Lauriston", however, the respondents reiterated their stand that the area of the Garden View transferred in favour of the predecessor in interest of the petitioners was 4230 sq. yards as per the averments contained in the written statement. The suit was dismissed by the Court vide its judgment dated 16.9.1968 and the appeal preferred against the same was rejected by the appellate Court on 24.5.1969 and the Regular Second Appeal filed against the judgment of the appellate Court was also dismissed by this Court on 7.4.1980. The predecessor in interest of the petitioners Sh. Kesho Nath Khurana challenged the same before the Supreme Court and vide its judgment dated 10.4.1981 in Civil Appeal No. 1408/198, the Supreme Court remanded the case to this Court for re deciding the same. The appeal was dismissed again on 14.8.1981 by this Court upholding the judgment and decree passed by the original Court dismissing the suit.

(3.) HE has also placed on record the copy of written statement filed by respondent No. 1 admitting that it had sold the 'Garden View' estate comprising khasra No. 141 and there was no path through khasra Nos. 396 and 397 (Vide Annexure P 13). It is further averred in this petition that the owner of Lauriston Estate filed another suit against the respondents in which they were declared as owners of Khasra Nos. 260 and 267 to 273 measuring 7335 sq. yards out of khasra Nos. 267 and 272 also form part of Garden View without impleading the present petitioners. The owners of the Lauriston Estate had been declared to be the owners of the same.