GHULAM RASOOL WADERA Vs. MOHAMMAD SALEEM AND OTHERS

JUDGEMENT

(1.) The facts of this case have been detailed in the order of reference.

(2.) To put in brief; the Custodian Evacuee property Kashmir restored 2/3 of the Evacuee house situated in Maisuma Srinagar in favour of the appellant and Mohd Ramzan Wadera. The said house originally belonged to Ghulam Mohd-ud-Din Wadera the brother of the petitioner who was earlier declared as evacuee Mr. Shatnim Ahmed Shamim who returned from Pakistan and had obtained power of attorney from Ghulam Mohiud-Din, the evacuee, made an application on 11. 4, 1969 to the Custodian Evacuee property, Srinagar, requesting that the house be made over to him for supervision, management and administration. He further contended that only l/3rd of the house has been notified as evacuee property whereas in fact that entire house belonged to the evacuee. The order of restoration to the extent of 2/3 in favour of the appellant and Mohd Ramzan Wadere was obtained on misrepresentation of facts and by practising fraud upon the Custodian. This application came to be dismissed by the Custodian Evacuee property on 9-12-69. Mr. Shamin went up in revision before the Custodian General. In the course of the revisional proceedings he filed a miscellaneous application to the effect that on discovery of evidence it has come to light that the entire house had been donated by gift by Aziz Joo Wadera father of the evacuee in favour of his son the evacuee; that the appellant and Mohd Ramzan wadera had absolutely no right or interest in the said house. He prayed for enquiry in the matter so that the entire house could be re-notified as evacuee property. The revisison petition was dismissed by the Custodian General but the application was referred by him to the Custodian for enquiry. The Custodian in pursuance of this order initiated enquiry in the matter. He recorded a finding that the entire house had been gifted by the father of the evacuee in favour or his son, therefore the order of restoration made by the then Custodian on 20th October 1955 required to be modified. The Custodian felt that he had no jurisdiction to make this order. He, therefore, made a reference to the Custodian General for passing appropriate orders u/s 30(A) of the Evacuees' (Administration of property) Act (hereinafter to be referred as 'The Act'). The Custodian General, after hearing the parties concluded by observing that the evacuee had become the full owner of the house in dispute by virtue of instrument of gift; that, the appellant and Mohd Ramzan Wadera were not entitled to any share out of it. The Custodian General, therefore, set aside the order of restoration of 25-10-1955 and declared the entire house as evacuee property directing the Custodian to notify the house as Evacuee property. The appellant thereafter came up in appeal which was heard by a Division Bench of this court.

(3.) An argument was raised on behalf of the appellant that the Custodian General could not have passed the impugned order after expiry of the 19 long years and that too on a. Miscellaneous application filed by Mr. Shamim. The Custodian General could not assume jurisdiction suo moto under sec. 30(A) of the Act. He referred to the following observations made by a Full Bench of this court in case Bakshi Rughnath Vs. Custodian General and others, 1970 KashLJ 26 ;-