GAYA REGIONAL DEVELOPMENT Vs. GULAM MD HASHMI

JUDGEMENT

(1.) THE appellant Gaya Regional Development Authority has filed this Second Appeal against the judgment and decree dated 31.5.1989 passed in Title Appeal no. 13 of 1986/61 of 1985 by the 3rd Additional District Judge, Gaya, whereby the learned Additional District Judge has dismissed the Title Appeal filed by the Gaya Regional Development Authority and confirmed the judgment and decree passed by the Additional Munsif II, Gaya in Title Suit no. 3 of 1985/118 of 1980. The plaintiff Ghulam Mohammad Hashmi had filed Title Suit No. 118 of 1980 for a decree for injunction restraining the defendants. (The State of Bihar & others) from disturbing the possession of the plaintiff over 22 -1/2 decimals of land of plot no. 14759 at Gowalbigha P. S. Civil Lines District Gaya and also for restituting the plaintiff over the said land, The learned Addl. Munsif had decreed the suit of the plaintiff.

(2.) IN short the case of the plaintiff respondent is that Mahboob Alam and Siddique Alam both were sons of Md. Abdul Hafeez and possessed various properties, including plot no. 14759 measuring 45 decimals and plot no. 4563 measuring 1 acre 25 decimals at Alamgirpur (Gowal Bigha), Gaya. Mahboob Alam pre -deceased his brother Siddique Alam in 1957 leaving behind Anjuman Ara his only daughter and the properties of Mahboob Alam devolved on his daughter and the brother, Siddique Alam created a Wakf in respect of some of his properties including 62 decimals of plot ho. 4563 and it was registered in the Wakf Board. Anjuman Ara and Siddique Alam migrated to Pakistan and they were declared evacuee and their properties were declared as evacuee property. 22 -1/2 decimals of plot no. 14759, share of Siddique (Alam was also declared evacuee property and it vested in the Custodian. Some persons claiming raiyati settlements in their favour from Siddique Alam had challenged the validity of the declaration made in Case no. 54 of 1955 before the Asst. Custodian, who rejected their prayer. In appeal, the Custodian upheld the order and the revision before the Custodian General also failed. The plaintiff purchased in auction on 16.7.1973, 22 -1/2 decimals of plot no. 14759 from the Evacuee Department and he was delivered possession of it.

(3.) A written statement had been filed on behalf of defendant no. 2. The original defendant no. 2 was the Gaya Improvement Trust, Gaya through its Chairman and the plaint was amended under order dated 12.9.1983 of the learned Munsif as Regional Development Authority through its Chairman, Gaya, as defendant no. 2. According to this defendant the suit is not maintainable in absence of legal and valid notice as required under the provisions of Improvement Trust Act or the Regional Development Authority Act. The entire area including the suit plots were declared as Slum area and for its clearance the defendant proposed a Slum Clearance Scheme at Gayawal Bigha and after proper survey it was sent to the Govt. for approval and sanction, which was approved and sanctioned by the Government. In absence of any objection it was made final. Thereafter award was made and possession was taken by the Collector and possession of the entire acquired land including the suit land was handed over to this defendant on 13.3.1964 and since then defendant no. 2 is in possession of the suit land exclusively and openly as owner of the said plots. As required under the Rules and by -laws under the Bihar Town Planning and Improvement Trust Act then in force the said acquired lands were demarcated and levelled and developed by providing roads, drainage, water supply and electricity. Thereafter a plan was prepared for the entire area by dividing it into different plots, sub -plots giving improvement trust numbers. On many plots houses were constructed by the trust and transferred and the remaining plots were notified for sale. The suit plots were never declared evacuee property and it could not have been declared evacuee property after June 1954 and the alleged declaration and the auction purchase are illegal and void and cannot be enforced. The property belonged to Mahboob Alam, whose name was Syed Noor Haider @ Mahboob Alam Khan. Syed Noor Haider @ Mahboob Alam Khan never migrated to Pakistan and he died at Patna in December, 1959. After vesting of his estate in the State of Bihar, he had filed return under Section 3(Kha)(3) of the Bihar Land Reforms Act on 27.12.1954, which was subsequently authenticated by affidavit sworn by his duly authorised general Power of Attorney holder Sri Naseem Ahmad, Advocate, Patna. At the time of death of Mahboob Alam, who had died in December, 1959 both his daughter Anjuman Ara and said Siddique Alam had already migrated to Pakistan and so they could not inherit his property which he had left after his death in India. The property of Mahboob Alam specially the plots in suit were never declared as evacuee properties and the alleged papers of auction sale and other connected documents are all forged and fabricated concocted for the purpose of grabbing the suit property. The land of plot no. 14759 is the land of Mahboob Alam and no part of it was declared as evacuee property and it had not vested with the Custodian.