RAMCHARAN MAHTO Vs. CUSTODIAN OF EVACUEE PROPERTY

JUDGEMENT

(1.) Plaintiffs are the appellants who instituted a suit on the 8th of January, 1957, in the Court of the Subordinate Judge at Bihar in the district of Patna against two defendants, one of whom was the Custodian of Evacuee Property, Bihar (defendant No. 2). The other defendant was Syed Salahuddin Ahmad., son of Syed Imamuddin Ahmad. Another, son of Syed Imamuddin Ahmad was Maslehuddin who was declared an evacuee under the Administration of Evacuee Property Act and half share in the suit property was also declared to be that evacuee's property. As that property vested in the Custodian, he was made a party defendant to the suit. Plaintiffs' allegations in the plaint were that they were coming in possession of the suit lands as their raiyati holdings and defendant No. 1 or his predecessors-in-interest were never in possession of the same. There were proceedings under Section 145 of the Code of Criminal Procedure in regard to the suit properties, but they were ultimately quashed by the High Court on an application in revision made by the defendant. After the decision in that criminal revision case, defendant No. 1 with the Custodian, defendant No. 2, contemplated to dispossess the plaintiffs from the suit lands. To repel that apprehension, the present suit was brought in which the plaintiffs alleged that the Custodian had declared the defendant No. 1's brother Syed Maslehuddin as an evacuee and half the property in suit to be the evacuee property without proper materials and legal evidence and, as such, he (Custodian) had no right to take possession of any portion of the lands which never vested in him in law. It is not necessary to refer to several other allegations made in the plaint, challenging the title and possession of defendant No. 1 as they will not be necessary for the disposal of the appeal. The reliefs sought in the plaint were declaration of the plaintiffs' title as occupancy raiyats and confirmation or, in the alternative, recovery of their possession over the suit lands. They prayed for mesne profits in case they were held to be out of possession and they wanted to withdraw the money which lay in deposit in the case under Section 145 of the Code of Criminal Procedure.

(2.) Two separate written statements were filed by the defendants on the 21st of August and the 19th of December, 1957, respectively. Seyeral objections were taken against the suit. It was pleaded that the suit was barred under Section 46 of the Administration of Evacuee Property Act, and that the suit lands being a composite property, a proceeding under that Act was pending in the Court of the competent officer for separation of the interest of the evacuee (defendant No. 1's brother) and, as such, the suit was also barred under Section 20 of that Act. Plaintiffs' possession was denied and the defendant's possession asserted. Defendant No. 2, the Custodian, pleaded that all proceedings taken under the Administration of Evacuee Property Act were in compliance with the law and the order declaring Syed Maslehuddin as an evacuee was legal and his properties had vested in the Custodian who had come in joint possession of the lands in suit with defendant No. 1.

(3.) Issues were framed on these pleadings on the 21st of August, 1957. From the order-sheet of the trial Court it appears that on the 21st of August, 1957, defendant No. 1 filed his written statement but the cost as ordered before was not paid. The Court ordered that day the case to be put up on the next day for payment of cost and settlement of issues on acceptance of the written statement. It was noticed in the order-sheet that defendant No. 2 had taken no steps. On the 12th of November, 1957, defendant No. 2 made an application for time for filing his written statement on the ground that he had not received the same from the Legal Remembrancer. The suit was fixed for the 3rd of January, 1958, for hearing and defendant No. 2 was ordered to file his written statement at an early date. On the 18th December 1957, a written statement was filed by defendant No. 2 and that was ordered to be put up on the date already fixed for hearing of the suit. It was accepted on the 3rd of January, 1958, and the hearing was adjourned to the 27th of February, 1958, but the actual hearing did not commence before two years later. On the 20th of July, 1959 defendant No. 1 made an application for amendment of his written statement and so did defendant No. 2 on the 10th of August, 1959. Both the amendments were to introduce a new paragraph in the written statement to the effect that the plaintiffs did not comply with the provisions of Section 80 of the Code of Civil Procedure and, as such, the suit was fit to be dismissed. This bar against the suit or want of notice under Section So was not taken in the original written statements, and in their applications for amendment the defendants stated that they had omitted to mention this bar through oversight. To both the applications for amendment, the plaintiffs objected but on hearing both sides, the Court below allowed the amendments subject to the payment of a cost of Rs. 4/- to the plaintiffs. This wag on the 10th of August, 1959, and on the 4th of December, 1959 the issues were recast by introducing issue No. 3 as follows: "Is the suit maintainable in absence of service of notice under Section 80, Civil Procedure Code?" On that day that issue was taken up for hearing as defendant No. 1 had filed a petition on the 23rd of September, 1959, to decide that point first. The Court after hearing the arguments on both sides held that the Custodian, defendant No. 2, was a public officer and a notice under Section So, Civil Procedure Code, was necessary to be given to him before the institution of the suit, and in absence of an averment in the plaint that such a notice was given, the Court below rejected the plaint by its judgment dated the 14th of December, 1959. Against that, the plaintiffs preferred the appeal here.