MD IQBAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) The plaintiffs are appellants. The plaintiff s Title suit No.4/93 for declaration that the order dated 10.12.1981, 13 th July, 1985 and 11 th June, 1971 passed by the consolidation authorities i.e., defendant No.2 to 4 are illegal, arbitrary and are not binding on the plaintiff and further for declaration of the plaintiff right title over the suit property has been Mungeshwar Sahoo, J. dismissed by the trial Court. On appeal, the appellate Court also dismissed the appeal. Both the Courts below recorded clear finding that the suit property have already been declared as evacuee property.

(2.) On 11.01.2008, this appeal was admitted and the following substantial question of law were formulated :-

(3.) All the aforesaid substantial questions of law relates to the question of declaration of the suit property as evacuee property. The learned counsel for the appellant submitted that the question that property is evacuee was never raised by the respondent before any Court or before the Consolidation authority. In the consolidation proceeding also, the State of Bihar never raised this point. It is only in appeal against the order passed by the consolidation authority, this plea that the property is evacuee property was taken. The appellants are continuing in possession of the property. Since the defence was that the property was declared as evacuee property, it was the burden on the part of the defendant to have produced the Notification under section 7 of the Administration of Evacuee Property Act, 1950 but no such documents or notification was produced by the respondents but even then the consolidation authorities held that the properties had already been declared as evacuee property. The learned counsel further submitted that the plaintiffs categorically stated that there was no notification under Section 7 of the Evacuee Property Act and there is no denial on the part of the respondent to that fact and, therefore, both the Courts below have wrongly held that the suit property was declared as evacuee property. In such circumstances the Judgment and Decree passed by both the Courts below are vitiated and liable to be set aside. The learned counsel further submitted that the transfer was made by Aisa Khatoon in favour of appellant was in the year 1945, therefore, the same could not have been declared evacuee property and further that without following the provision as contained in Section 7 of the Administration of Evacuee Property Act of giving notice to the interested persons, the property could not have been declared as evacuee property.