MUMTAZ BEGUM Vs. CUSTODIAN GENERAL, EVACUEE PROPERTY, JAMMU

JUDGEMENT

(1.) IT was in 1959 that the appellants by an order of the Custodian, Evacuee Property, Jammu, were appointed Managers of the property left behind by their uncle Samdoo in Mohalla Kasaban, Jammu, which consisted of two houses bearing No. 304 -EP and 305 -EP. It was alleged by the appellants before the Custodian that they were the sole survivors of their father Ghulam Mohammad and their Uncle Samdoo. The houses belonged to Samdoo. Both their father and uncle were either killed in the riots in 1947 or had migrated to Pakistan but as nothing was heard from or about them since partition, the appellants alleged, that they should be presumed to be dead. The children of Samdoo were also either killed or were not heard of since 1947. Their own third sister Saida had also met the same fate which had befallen to Samdoo, and his children. In one of these two houses, Ghulam Rasul, one of the respondents herein had taken refuge, as he too had been allegedly uprooted in the riots of 1947. Ghulam Rasool executed a rent deed in favour of the appellants when the latter were appointed Managers of the suit property. After the lapse of some time Ghulam Rasul through an application contested the appointment of the appellants as Managers but the same was rejected by the Custodian as well as by the Deputy Custodian General. In his order the Deputy Custodian General directed that the facts and circumstances that came to light during the proceedings before him entitled the appellants to claim the property in question as owners thereof in their capacity of being the only legal heirs of their uncle, Samdoo. He directed investigation in the matter. The appellants thereafter filed a restoration application before the Custodian u/s 14 of the J&K State Evacuees (Administration of Property) Act, 2006 (hereinafter referred to as the Act) Ghulam Rasul, the tenant tried to intervene and applied that he be made a party in the restoration proceedings. The Custodian however, rejected his prayer, and refused to make him a party to the proceedings. After recording evidence and hearing the parties, the Custodian allowed the application for restoration and directed that the property in question be restored to the appellants. He also directed that Ghulam Rasul, the lessee, be evicted from the property. Ghulam Rasul took the matter to the Custodian General in appeal. The Custodian General by his order dated 28 -3 -1973 rejected the appeal but at the same time exercising his powers under section 30 -A of the Act upset the finding of the Custodian so far as the restoration of the property to the appellants was concerned. Against this order of the Custodian General upsetting the order of the Custodian with regard to the restoration of the property, the present appeal has been filed. Ghulam Rasul also came up to this court in a writ petition which is No. 31 of 1973, Ghulam Rasul Versus Custodian General and others, against the order of the Custodian General directing his eviction from the house in his occupation as a tenant. The writ petition has been separately disposed of. A civil suit brought by the appellants in the court of Sub Registrar, Munsiff, Jammu, for recovery of the arrears of rent from Ghulam Rasul was decreed by the trial court vide its order dated 10 -10 -1972 but dismissed by the Sub. Judge (C. J. M.) Jammu before whom an appeal was taken by Ghulam Rasul. An appeal against the order of Sub -Judge (C. J. M.) filed by the appellants herein has also been separately disposed of by an order of this court of date.

(2.) THE learned counsel for the appellants has urged that the order of the Custodian General was beyond jurisdiction as once the appeal of Ghulam Rasul has been dismissed by him, he in law could not have suo moto in the same appeal passed the order reversing the decision of the Custodian on restoration matter. He has contended that the Custodian General has in law erred in arriving at the conclusion as he has because the Custodian had committed neither any illegality nor there was any impropriety in his order restoring the property to the legal heirs of the evacuees, so as to give jurisdiction to the Custodian General to revise the order. According to the learned counsel the order of the Custodian was based on proper appreciation of evidence led by the appellants herein in the proceedings for restoration before him. It has been next contended that the admission of additional and secondary evidence by the Custodian General while sitting in revision u/s 30 -A of the Act was against law and that the contention of the learned Custodian General that the provisions of Evidence Act were not applicable to the proceedings before the Custodian was illegal inasmuch as the proceedings before the Custodian were as good as proceedings in a Civil court and as such the principles laid dawn in the Evidence Act were attracted to such proceedings.

(3.) ON the other hand the contention of Mr. Amar Chand appearing for the Custodian was that (he provisions of the Act had the overriding effect over all other laws and that the provisions of the Evidence Act were not strictly applicable to the proceedings before the Custodian. He has further contended that the Custodian had not properly appreciated the evidence produced by the appellants herein during the proceedings for restoration as the evidence so produced would not lead to the conclusions as he has arrived at. His next contention was that the admission of additional evidence by the Custodian General was in no way improper or illegal as the Custodian General possessed wide powers u s 30 -A of the Act and that the same were wider than the powers exercised by the civil courts u/s 115 of the Civil Pr. Code.