NASIBAN Vs. MANAGING OFFICER EVACUEE PROPERTY

JUDGEMENT

(1.) This application has been filed by the petitioners, praying that the orders incorporated in Annexures 1, 2 and 3 of the writ application may be quashed by a writ of certiorari and respondents Nos. 1 to 4 be restrained from interfering with the petitioners' possession by a writ in the nature of mandamus. The relevant facts given in the application are as follows. It is stated that the petitioners have a house at Ranchi and the house and certain lands are in Holding No. 352 in the town of Ranchi, the corresponding Municipal holding number being 451 in Ward No. 2, Plot No. 889. The house and land once belonged to Syed Samad Shah. On his death the property was inherited by his four sons and four daughters. One of the sons was named Jalal Shah. Jalal Shah died leaving behind a son, named Belal Shah, and a daughter, named Bilquisinnissa. Another son of Samad Shah was named Khalil Shah. Khalil Shah and Belal Shah sold their shares of the vacant land in the holding to petitioners Nos. 1, 2 and 3 and one Mosammat Sahidan, wife of petitioner No. 4, and mother of petitioners Nos. 5, 6 and 7 by four sale deeds dated the 30th September 1948. Thereafter, four holdings were carved out, Nos. 178 (b), 178 (c), 178 (d) and 178 (e) out of Holding No. 352 and the petitioners were in possession of the property purchased by them. Before the petitioners had made their purchases, Holding No. 352 had been sold in auction, in execution of a decree for arrears of rent, but the decretal amount having been deposited, the sale had been set aside on 23rd May 1935 on full satisfaction. It is stated that for the sake of convenience, Holding No. 352 was recorded in the name of Bilquisinnissa on the records of the Municipality. The lady migrated to Pakistan in 1949 and on 29th November 1955, the Assistant Custodian, Evacuee Property, Ranchi, respondent No. 2, declared Holding No. 352, including the portions purchased by the petitioners as evacuee property. A copy of this order is Annexure 1. An, appeal was preferred by, Belal Shah against this order, which was rejected on 16th March 1956, and a copy of the order is Annexure 2. A revisional application was filed by Belal Shah, which was rejected by the Deputy Custodian General on the 8th November 1956, and a copy of this order is Annexure 3.

(2.) Thereafter, the petitioners had filed Title Suit No. 221/45 of 1958/1961 in the Court of Munsif, Ranchi, for a declaration that Holdings Nos. 178(b), 178(c), 178(d) and 178(e) of Ward No. 2 and the house standing thereon belonged to the petitioners and prayed for permanent injunction restraining the present respondents from interfering with their possession. The suit was based on the allegation that notice under Section 7 of the Administration of Evacuee Property Act had not been given either to the plaintiffs or to their predecessors-in-interest and, therefore, the declaration that the property was evacuee property was void and illegal. It is alleged that the Service of notice under Section 7 on Bilquisinnissa was made beyond the time provided by the Act. Present respondents Nos. 1 to 4 had filed a written-statement in the suit contending that Holding No. 352 had belonged to Mosammat Bilquisinnissa, who had migrated to Pakistan in 1948 and in due course the property had been declared as evacuee property. The sale deeds in favour of the petitioners were said to be collusive documents. The suit was decreed by the trial court and an appeal in the court of appeal below had failed. Present respondents Nos. 1 and 2 had come up to this Court in Second Appeal No. 1038 of 1963, which was decided by a Division Bench of this Court on 2nd August 1968 and the appeal was allowed. A copy of the judgment of this Court has been given as Annexure 4. It was held that the plaintiffs' suit was barred under Section 46 (a) of the Act. . After stating all these facts in the writ application, all that is said is that, after the decision of this Court, the authorities will take steps to dispossess the petitioners and, therefore, they have no other alternative except to file this writ application for the prayers mentioned above. In a counter-affidavit filed on behalf of opposite party, through Sri H. A. Mozaffar, Advocate, the important points taken are these. It is stated that the owner of the property mentioned in the writ application was Bibi Bilquisinnissa and she had actually paid the decretal amount to the Ranchi Municipality and her name was mutated in the Municipality's record and she was the owner of this property. The sale deeds relied upon by the petitioners are said to be collusive documents and the orders of the authorities under the Evacuee Property Act are supported as valid on the facts of the case.

(3.) The learned counsel for the petitioners has contended that on the allegations made by the plaintiffs and the defendants in the title suit mentioned above, the trial Court and the first Court of appeal had found all the facts in favour of the plaintiffs, who are the petitioners in this case, and as this Court in the second appeal had not reversed any conclusions of fact, the facts found in the civil suit are final and conclusive and, therefore, the disputed properties had belonged to the petitioners and when they had not been given notice under Section 7 of the Evacuee Property Act, their properties could not have been declared as evacuee property. This contention does not appear to be valid. This Court had held that the suit was not maintainable and, therefore, all conclusions of facts arrived at by the two Courts below, in the suit, lost all their finality. According to the learned counsel for the petitioners, each of the conclusions arrived at in the suit, whether by the two Courts below or by the High Court, was res judicata between the parties, and reliance has been placed on the case of Gangappa Gurupadappa v. Rachawwa, reported in AIR 1971 SC 442. This contention is unacceptable. As the suit was held by this Court not to be maintainable in a civil Court, the findings arrived at by the two Courts below have no finality at all. In any case, the conclusions arrived at by the two Courts below cannot be made final between the parties in this Court in the writ application. On the materials on record, the petitioners have not been able to prove that the properties had belonged to their vendors and that the property declared as evacuee property had not belonged to Mossammat Bilquisinnissa. As a matter of fact, the petitioners made no attempt to prove by their writ application that their vendors were the true owners of the disputed property. As stated above, after reciting the past history of the case, all that has been said in the writ application is that the petitioners had no other alternative except to claim their properties by this writ application. None of the petitioners has sworn the affidavit in support of the writ application, in order to establish the disputed facts. The affidavit has been sworn by some one calling himself as a pairvikar of the petitioners.