ARUN KUMAR SINHA Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for a declaration that the order dated 9-5-1950 passed in Evacuee Property Case No. 134 of 1950-51 and a subsequent order dated 30-12-1954 passed in Confirmation Case No. 1 of 1952-53 were without jurisdiction, void ab initio, ultra vires and inoperative,

(2.) plaintiffs' case was that the property in suit measuring 4 kathas and bearing holding No. 592 in the Monghyr Municipality with a pucca house and trees standing thereon was owned previously by one Abdul Majeed Khan and he was in actual possession of the same. On 22-4-1948 the said owner executed a usufructuary mortgage deed in favour of Sushila Devi, mother of the plaintiffs, and she came in possession thereof. On 9-5-1950, the Assistant Custodian declared this property as an evacuee property in Evacuee Property Case No. 134 of 1950-51, but neither the said owner Abdirl Majeed Khan nor the plaintiffs' father had any knowledge of that case. The mortgagee (plaintiffs' mother) as well was unaware of that proceeding. On 7-11-1951, Abdul Majeed Khan transferred the said property to Mani Lal Mehta, father of the plaintiffs, by a registered sale deed (Ex. 1) for a sum of Rs. 6,500/- and the purchaser had to pay the previous mortgage dues to the tune of Rs. 4000/-. Plaintiffs' father got his name mutated in the Municipal records and he remained in possession of the said property on the basis of the sale deed. Bhuneshwar Mahton, Pleader, was living in the said house as a tenant of the plaintiffs. At the time of the execution of the mortgage deed and the sale deed referred to above, Abdul Majeed Khan was residing in Monghyr and he had no intention of going out of India. Plaintiffs' father died on 22-4-1953 and, out of the three plaintiffs, plaintiff 1 attained majority on 2-9-1954, whereas the other two plaintiffs were minors. Plaintiffs came to learn that their father had filed an application for confirmation of the said sale dead and this was registered as Confirmation Case No. 1 of 1952-53, but during the pendency of that case he died with the result that the said application was rejected on 30-12-1954. Plaintiffs learnt on 25-10-1956 for the first time that the property in suit had been declared as an evacuee property. It further transpired that the notice under Section 7 of the Administration of Evacuee Property Ordinance (No. XXVII of 1949) or under Section 7 of the Administration of Evacuee Property Act (No. XXXI of 1950) was not at all issued to the persons interested in the said property and no enquiry was ever held before passing an order declaring the said property to be an evacuee property. Accordingly, the order dated 9-5-1950 and the subsequent order dated 30-12-1954 rejecting the application for confirmation were without jurisdiction and void. The plaintiffs gave notices under Section 80 of the Code of Civil Procedure about their claim and then they instituted the suit out of which this appeal arises on 19-2-1957.

(3.) There was no written statement on behalf of the Union of India, the Custodian General and the Revenue S. D. O. (defendants 1, 3 and 5), but the State of Bihar, the Custodian of Evacuee Property and the Assistant Custodian (defendants 2, 4 and 6) filed a written statement and contested the suit. Their case was that the suit was barred under the provisions of Section 46 of the Administration of Evacuee Property Act and Abdul Majeed Khan was an evacuee. According to them, Abdul Majeed Khan migrated to Pakistan before 15-8-1947 and the usufructuary mortgage bond and the sale deed dated 224-1943 and 7-11-1951 respectively were neither genuine nor valid. Those documents came to be executed with a view to make an illegal gain and they were illegal and void under Section 41 of the said Act. Abdul Majeed Khan was declared an evacuee in the year 1950 in the presence of the plaintiffs' father and the latter did not come in possession of the house on the basis of the sale deed dated 7-11-1951. On 25-3-1950 a proceeding was started in accordance with the provisions of the Administration of Evacuee Property Ordinance against Abdul Majeed Khan and the Assistant Custodian declared him (Abdul Majeed Khan) as an evacuee and his house bearing holding No. 592 of Mahalla Belan Bazar to be an evacuee property in Case No. 134 of 1950-51. Notice under Section 7 was duly issued and served and the order in question was valid. The petition filed by the plaintiffs', father under Section 40 of the said Act for confirmation of the sale deed was rightly rejected, as the transaction was void and the District Assistant Custodian had no knowledge of the death of Mani Lal Mehta. Another plea taken by them was that the suit was barred by limitation. The three issues in the suit were as follows: "1. Are the orders dated 9-5-1950 and 30-12-1954 passed in E. P. Case No. 134 of 1950-51 and in confirmation Case No. 1 of 1952-53 respectively void and illegal? 2. Have the plaintiffs got title to the disputed property? 3. Are the plaintiffs entitled to any relief?"