SARWAR ALAM Vs. JAWAHAR TURHA

JUDGEMENT

(1.) This appeal has been preferred by the above named plaintiff/ appellant against the judgment and decree passed by the 3rd Sub-Judge, Buxar in Title Appeal No. 100 of 1977 whereby and whereunder the judgment and decree passed by the second Additional Munsif, Buxar in Title Suit No. 97/31 of 1971 -76 has been reversed and the plaintiff's suit has been held to be not maintainable.

(2.) The suit house Plot No. 1049 and 1050 having measured 16 dhurs and 16 decimals and 10 dhurs and odd respectively have been claimed by the plaintiff and declaration has been sought regarding her title and also for confirmation of possession and alternatively for recovery of possession. Admittedly the suit property belonged to one Abdul Hakim alias Bordhu Mian and Abdul Hamid alias Sahtu Mian sons of Ghafoor Mian of Dumraon, town and soon after partition of the country went to Pakistan in the year 1949 and the said property became Evacuee property and it came in possession of the custodian. The said property was auction sold and one Banarsi Das purchased the same on 25-8-1969 and received sale certificate dated 11-5-1970. The said Banarsi Dassold the disputed property to the plaintiff i.e. the appellant on 14-5-1970 for a consideration of Rs. 800/-. According to the plaintiff on the basis of that sale deed, he came in possession and he has been coming in possession of the same upto the date of the filing of the suit. His name was mutated in the municipal office but the father of respondent Nos. 1, 2 and 4 and husband of respondent No. 3 Chhotak Mahto forcibly occupied an old room in Plot No. 1050 which was owned by the former owner which was also included in the auction purchase of Banarsi Das and thereafter to the plaintiff/appellant. The said room had not been vacated by the defendants/respondents and hence the suit was filed. According to the respondents first set the suit property belonged to Abdul Hakim and the respondents first sets had purchased the disputed property as described in Schedule A of the plaint orally for a sum of Rs. 50/- from Sahtu Mian son of Ghafoor Mian about 23-24 years before. Thereafter the respondent first set came in possession of the same and the disputed property never become an evacuee property and the custodian was never in possession of the same.

(3.) The case of the respondent second set is that the disputed plot of Abdul Hakim who migrated to Pakistand and Schedule-A property became the Evacuee property and custodian came in possession thereon and it has further been stated that the disputed property has been auction sold on behalf of the President of India on 25-8-1969 at Arrah Dak Gunglow. Both parties adduced oral and documentary evidence in support of their respective cases. Plaintiff/appellant had filed entire proceeding of the custodian sale proclamation, the order sheet, the sale certificate etc. the original sale-deed, the mutation order of the Chairman, and the Municipal receipt to prove their title and possession. The defendants could not file a chit of paper regarding their purchase and possession thereof of the whole. The trial Court decreed the suit in favour of the plaintiff but on appeal being preferred the appellate Court had set aside the judgment and decree of the Court below. The appellate Court held that after 7-5-1954 the jurisdiction of the custodian has been terminated regarding declaration of evaucee property and there was no proceeding in this regard pending on 7-5-1954 and thus proceeding of custodian had only been started in the year 1969 when there was no legal authority of the custodian in that respect and he based his finding on AIR 1980 SC 1206 (Rajendra Prakash Sharma v. Gyan Chandra).