MANAGING OFFICER EVACUEE PROPERTY Vs. NASIBAN

JUDGEMENT

(1.) This appeal by defendants Nos. 3 and 4 arises out of a suit filed by the plaintiffs respondents for a declaration that the properties mentioned in Schedule A of the plaint are not evacuee properties and the orders passed by the Assistant Custodian and others under the Administration of Evacuee Properly Act, 1950, are illegal and without jurisdiction and also for a permanent injunction restraining the defendants from putting the suit properties to sale and interfering with the right, title and possession of the plaintiff's.

(2.) The plaintiffs put forward the case that one Syad Samad San was the owner of holding No. 352 corresponding to municipal holding No. 362 (a), which was a portion of old holding No. 451, Ward No. II. Plot No. 889, of Ranchi Municipality. Samad Sha died leaving four sons, namely, Wajid Shah, Khalil Shah, Ahshan Shah and Jalal Shah, and four daughters, namely, Hajra Khatoon, Saira Khatoon, Mehrun Khatoon and Samsul Khatoon. Jalal Shah died leaving behind him a son named Belal Shah and a daughter named Bilquisnissa. The share of Jalal Shah in the municipal holding was inherited by Belal Shah and Bilquisnissa in proportion to 2/3rd and 1/3rd respectively. Khalil Shah, one of the sons of Samad Shah and Belal Shah son of Jalal Shah, sold out from their shares a portion of the vacant land in the holding to plaintiffs Nos. 1. 2 and 3 and the wife of plaintiff No. 4 and the mother of plaintiffs Nos. 5 to 7 by four registered sale deeds dated the 3rd of September, 1948. Thereafter the plaintiff's came in possession of the land and got their names mutated in the Ranchi Municipality. They constructed four small houses which . were given municipal holdings Nos. 178 (b), 178 (c), 178 (d) and 178 (e). After the death of Mosst, Jahidan, her heirs came in possession of her holding No. 178 (b). The plaintilfs thus claimed that they are still continuing in possession of Schedule A properties which they had purchased under the four registered sale deeds. According to the plaintiffs, before the execution of the sale deeds, the Ranchi Municipality in execution of a decree for arrears of rent had sold off the entire holding No. 352 and on payment of the decretal dues the sale was set aside on the 23rd of May. 1955. For the sake of convenience the co-sharers allowed the name of Bilquisnissa to stand in the municipal records in respect of the holding. Bilquisnissa migrated to Pakistan to live with her husband. After her migration to Pakistan, the Assistant Custodian, Ranchi, declared on the 25th of November. 1955, the entire holding No. 352 including the portions purchased by plaintiffs Nos. 1 to 3, wife of plaintiff No. 4, and the mother of plaintiffs Nos. 5 to 7 as evacuee property without notice under Section 7 of the Administration of Evacuee Property Act, 1950, hereinafter to be referred to as "the Act". On the aforesaid facts the plaintiffs alleged that the declaration that the property was evacuee property was wholly illegal and without jurisdiction. According to the plaintiffs, as the order of the Assistant Custodian was upheld in appeal and revision, it has thrown a cloud on the title and possession of the plaintiffs in respect of their holdings Nos. 178 (b) to 178 (e). Hence the suit for the reliefs, as stated above.

(3.) It appears that the suit was contested by some of the defendants on the grounds, inter alia, (a) that the suit is barred by Section 46 of the Act and by Section 20 of the Evacuee Interest Separation Act 1951; (b) that holding No. 352 was the property of Mosst. Bilquisnissa, who migrated to Pakistan in the year 1048, (c) that the Assistant Custodian declared Bilquisnissa as an evacuee and the proper-tics in suit as evacuee properties after service of notice on Bilquisnissa under Sec- lion 7 of the Act; (d) that in the proceedings before the Assistant Custodian Khalil and Belal contested the matter; (e) that some of them filed appeal and revision which they lost; (f) that the order passed by the Assistant Custodian, which was confirmed by the Custodian and the Deputy Custodian General, was valid and within jurisdiction; and (g) that holding No. 352 vested in the Custodian under Section 8 (b) of the Act from 15th August, 1947.