PUSHKAR LAL Vs. KAMAL SINGH AND ORS.

JUDGEMENT

(1.) THIS second appeal under Section 100 C.P.C. has been filed against the judgment and decree dated 7.8.1982 passed by Addl. Civil Judge, Bharatpur in Civil Appeal No. 30/1982 confirming the judgment and decree dated 11.8.76 passed by Munsiff & Judicial Magistrate, Bharatpur in Civil Suit No. 41/66. The brief facts leading to tiling of this second appeal are that the plaintiff -appellant filed a suit in the court of Munsiff & Judicial Magistrate, Bharatpur against respondents for declaration and possession. The case of the plaintiff is that he purchased the property from the Custodian Department, Rajasthan. He is the owner of the property. Amir Hussain used to reside in the property since 1957. His possession was declared illegal by the Custodian Department and it has also been informed to Amir Hussain that the property has been sold to the plaintiff and the possession be handed over to him and for the same, suit for declaration and possession has been filed which was dismissed by the court below and appeal has also been dismissed, hence this second appeal has been filed which was admitted on 3.8.83 on the following substantial questions of law: - -

(2.) THE contention of the present appellant is that he purchased the property as evacuee property from the Custodian Department but the court below has gone into the question whether declaration of evacuee property was according to law or not which is bared under Section 27 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as the 'Act of 1954') and when property has been declared evacuee property as per the provisions of Administration of Evacuee Property Act, 1950 (in short Act of 1950) bar under Section 46 of the above Act will apply and civil court could not go into the question whether any property is evacuee property or not. Under the Act of 1954, the respondents were free to file an appeal under Section 22 and 23 but no objections have been raised by the respondents. Even DW/5 Lalit Kishore Chaturvedi has specifically stated that it was an evacuee property and basic property register as regards the evacuee property has been submitted and civil court was not in its jurisdiction to go into the legality of the declaration of evacuee property hence the issue should be decided in favour of the appellant.

(3.) IN the present case, the contention of the appellant is that he is the owner of the property as he has purchased the property from the custodian and Ex. 1 deed of conveyance has been placed on record to fortify his contention Ex. 6 order of the Assistant Custodian, Alwar dated 12.6.64 and basic property register Ex. A/11 have been submitted but bare perusal of Ex. 6 order of the Assistant Custodian, Alwar clearly speaks that an application has been filed on behalf of the appellant as regards the boundaries and measurement of the property and vide order dated 27.2.1960, an enquiry has been ordered which was further fortified by the order dated 12.1.64 Ex. 6 but in Ex. 6 also nothing has been stated that any notification under Section 7 of the Act of 1950 or under Section 12 for the Act of 1954 was issued to declare the disputed property as evacuee property and in the absence of the notification, the court below was right in holding that the disputed property never declared evacuee property and this fact has further been fortified by entries in Ex. A -11 the basic property register in which Column No. 4 is blank where the date of gazette notification on which the property has been declared as evacuee property was to be mentioned.