WAZIRA Vs. SHAMULAL

JUDGEMENT

(1.) I. N. Modi, J. This is a second appeal by the plaintiffs Wazira and Mamla against the judgment and decree of the Civil Judge Alwar dated 22-7-1954, by which he reversed the judgment and decree of the Munsiff Kishengarh dated 21-10-1952, and dismissed the plaintiffs' suit.

(2.) THE facts out of which this appeal arises may be briefly stated as follows. THE dispute relates to certain agricultural land measuring in all 12 bighas and 2 Biswas situate in village Kirwari, Tehsil Kishengarh, the particulars whereof are mentioned in the plaint sis amended and need not be repeated here. THE case of the plaintiffs was that the deceased Khushal was the "maurisi Kashtkar" of the aforesaid land and that he died in 1946 issueless and without any widow surviving him. THE plaintiffs also gave the following pedigree table in the plaint which is not disputed: DALMIr ________________|___________________________ | | | | Daula Amir Mohar Subdul __________|__________ (No issue) (No issue) | | | Baggad Khushal Badal __________|___________ (died in 1946) _________|__________ | | | | Rehmat Rehman Wazira Amar (Deff. 1) (Deff. 2) (Pltff. 1) | Masic (Pltff. 2) THE plaintiffs thus claimed that they were the nearest heirs of the deceased Khushal and that mutation had been recorded in their favour in the revenue papers with respect to Khushal's lands on 5-9-1946. (See Ex. PD ). THE Nazim who sanctioned the mutation further ordered that any person who was aggrieved by this order should have his rights decided in a competent court of law. It, however, transpired that on 11-12-1946, the Fatwari of this area recommended that halt of the lands in question be recorded in the names of Rehmat and Rehman. (See Ex. PE ). THE case of Rehmat and Rehman appears to have been that Wazira had executed a writing in their favour to that effect, the reason being that they had served Khushal in his old age and had discharged some debts of his. It clearly appears from Ex. PE, however, that Wazira was not willing to give effect to this arrangement and stated that Rehmat and Rehman were free to file a civil suit against him if they so chose and it was under these circumstances that mutation was sanctioned with respect to half of Khushal's lands in the names of Rehmat and Rehman by an order of the Nazim dated 16-3-1947. Consequently, the plaintiffs filed the present suit on 8-12-1950. As Rehmat and Rehman had in the meantime gone away to Pakistan, the plaintiffs brought the suit against them through the Custodian, Evacuee Property, Alwar. THEy also impleaded Dholumal and Shyamumal in this suit as the lands had in the meantime been allotted to those persons by the Custodian and they were in possession thereof. THE plaintiffs prayed for possession over the suit lands and they also prayed that the mutation dated 16-3-1947, ordered by the revenue authorities in favour of Rehmat and Rehman be cancelled.

(3.) NOW let us see how these principles apply to the present case. What is the question which. the Civil Courts are called upon to determine here? That question is as to the right of inheritance of the plaintiffs to the estate of Khushal in suit. It is true that this question may affect the rights of the evacuees Rehmat and Rehman indirectly. But that is not the same thing as to say that the real question for decision arising in this litigation is any other than that I have pointed out above. Khushal had already died in 1946 before the Matsya Evacuees (Administration of Property) Ordinance, 1948 (No. II of 1948) had come into force on the 28th August, 1848, or before the partition of India, as it then was, came to be effected. As soon as Khushal died, his estate vested in his heirs according to the law of inheritance applicable to the Muslims. There is evidence to show that after his death, the present plaintiffs obtained mutation in the revenue papers in September, 1946. This was, however, later changed, and mutation to the extent of half of the estate of Khushal which had earlier been recorded in the names of the plaintiffs was changed over to Rehmat and Rehman without the consent of the plaintiffs. The principal question which arose for determination was whether Khushal's estate at all vested in the Custodian. The learned Assistant Government Advocate himself conceded that it did not so far as half of it which was still recorded in the revenue papers in the names of the plaintiffs was concerned. From this it inevitably follows that the Custodian had no jurisdiction whatsoever to intermeddle with this half and whatever action was taken by him with respect thereto was entirely without jurisdiction. Even so far as the remaining half which is said to have been later mutated in the names of Rehman and Rehmat who subsequently went over to Pakistan is concerned, the question for determination is not merely whether this is an evacuee property and rightly or wrongly taken to be so but the real question is whether that portion of the property devolved in law on Rehmat and Rehman. There is nothing on the record to show that the last-mentioned persons had any right to that property except the bare mutation entry which was recorded by the revenue officers in the teeth of opposition from the present plaintiffs. It is not disputed before me, and indeed there is no room for dispute, that Wazira plaintiff was the nearest heir to the deceased Khushal. On his death, therefore, Khushal's entire estate devolved on him. Rehmat and Rehman, therefore, had no right in law with respect to it and, therefore, this other half portion of the suit property could not have possibly vested in the Custodian even under the principle of automatic vesting enforced by Section 4 of the Matsya Evacuees (Administration of Property) Ordinance, 1948. It was faintly sought to be argued before me that even Wazira and Manila had gone over to Pakistan and they themselves were evacuees, and, therefore, their estate also vested in the Custodian. This position, however, cannot possibly be accepted on the record as it stands. There is not a scintilla of evidence to show that these persons had ever left India. Not a single question was put to Wazira in this connection when he came into the witness-box. In fact the Custodian and his legal adviser do not seem to have taken any interest whatsoever in this litigation after filing the written statement in the trial court, so that, so far as the defendants are concerned there is no evidence whatever to show that Rehmat and Rehman were ever declared evacuees or that the suit property was declared evacuee property.