Full Judgment Text
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PETITIONER:
RAM GOPAL REDDY
Vs.
RESPONDENT:
ADDITIONAL CUSTODIAN EVACUEE PROPERTY,HYDERABAD
DATE OF JUDGMENT:
06/01/1966
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ)
HIDAYATULLAH, M.
RAMASWAMI, V.
SATYANARAYANARAJU, P.
CITATION:
1966 AIR 1438 1966 SCR (3) 214
CITATOR INFO :
RF 1968 SC 169 (8)
ACT:
Administration of Evacuee Property Act (31 of 1950) s. 46,
and Transfer of Propety Act (4 of 1882) s. 53 A- Land
purchased in 1946--Vendor declared evacuee in 1949 and land
declared evacuee property--suit by purchaser for declaration
of ownership whether lies.
HEADNOTE:
The appellant purchased certain land from one A in 1946.
Although the land was valued at more than Rs. 100 no
registered deed of sale was executed. In 1949, A was
declared an evacuee and the appellant was given notice by
the Deputy Custodian of Evacuee Property to show cause why
the land should not be declared evacuee property. No
appearance was put in by the appellant in answer to the
notice and the land was declared evacuee property. The
appellant represented to the departmental authorities that
he had become owner of the land before the Evacuee Property
law came into force. The Custodian did not accept the plea
and observed that if the appellant was aggrieved by the
decision he could obtain a declaration of his rights from a
competent court. The appellant therefore filed a suit which
was contested by the department on the ground that s. 46 of
the Administration of Evacuee Property Act was a bar. The
subordinate Judge held that the court had jurisdiction
because of s. 53A disagreed with the Subordinate Judge and
reversed his decision. The appellant then came to this Court
by special leave.
HELD : The scheme of the Evacuee Property Act clearly is
that when the property admittedly belongs to the evacuee any
person claiming the property or any interest or right
therein has, on receipt of a notice under s. 7(1), to
appear before the authorities entitled to deal with the
matter under the Act. Any person aggrieved by an order of
such an authority made under 3. 7 has the right to appeal
under s. 24 and if necessary to go in revision under s. 27.
The Act thus provides a complete machinery for a person
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interested in any property to put forward his claims before
the competent authorities. Having provided this machinery
the Act by s. 46 bars the jurisdiction of civil and
revenue courts to entertain or adjudicate upon any
question whether any property or any right or interest in
any property is or is not evacuee property. Any transferee
from an evacuee claiming the property or any right or
interest therein has to avail of the remedies under the
Act and cannot go to a civil court. The fact that in the
present case the Custodian in his order said that the
appellant could go to a competent court could not confer
jurisdiction on the Court.
Nor could it be said on the facts found that the
appellant had become the owner of the property before
1947, for, admittedly the property was worth more than Rs.
100 and without a registered sale deed it was not possible
for the title to pass.
It way be that if A tried to get back the property s.
53-A of the Transfer of Property Act would come to the
aid of the appellant in de-
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fence. But the present suit had been filed to establish the
right of the appellant as owner of the property and in such
a suit the appellant could not take the benefit of s. 53-A.
[217 B-218 B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 885 of 1963.
Appeal from the judgment and decree, dated April 8, 1960 of
the Andhra Pradesh High Court in Appeal No. 21/1 of 1956.
T. V. R. Tatachari, for the appellant.
N. S. Bindra and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
Wanchoo, J. The only question raised in this appeal on a
certificate granted by the Andhra Pradesh High Court is
whether the suit brought by the appellant is barred under s.
46 of the Administration of Evacuee Property Act, No. 31 of
1950, (hereinafter referred to as the Act). The facts are
not in dispute and may be briefly narrated.
On November 15, 1946, the appellant claimed to have pur-
chased certain patta lands from one Abdul Aziz Khan and paid
him Rs. 6,127/8/- in Osmania Sicca. The appellant got
possession of the land and thereafter in June 1949 Abdul
Aziz Khan applied in the Tahsil office for the transfer of
the patta in the name of the appellant. Before, however,
any transfer was made, Abdul Aziz Khan seemed to have
migrated to Pakistan. Consequently, the Deputy Custodian
took steps to declare Abdul Aziz Khan an evacuee. In that
connection the appellant received notice from the Deputy
Custodian in December 1950 under s. 7 of the Act asking him
to show cause why the land should not be declared evacuee
property. Though the appellant’s case was that he engaged a
counsel to appear on his behalf before the Deputy Custodian,
no one seems to have appeared on his behalf, and in
consequence, the Deputy Custodian declared the property to
be evacuee property. Thereafter the appellant was given a
notice requiring him to surrender possession of the land to
the Tahsildar. The appellant then made representation
before the Deputy Custodian that he had purchased the
property from Abdul Aziz Khan in 1946 and was the owner
thereof from before the Evacuee Property Law came into
force. The Deputy Custodian called upon him to produce
evidence and thereafter recommended to the Custodian that
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the property might be declared not to be evacuee property.
The Custodian did not accept this recommendation on the
ground that there was no registered sale deed duly executed
by Abdul Aziz Khan in favour of the appellant and
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no transfer of property could therefore be said to have
taken place in 1946, and ordered that the declaration of the
property as evacuee property should stand and further said
that if the appellant was aggrieved by this decision he
could obtain a declaration of his rights from a competent
court. In consequence, the appellant filed the suit out of
which the present appeal has arisen in the court of the
Subordinate Judge, Nizamabad and prayed that a declaration
be made that he was the owner of the property and in
possession thereof and that the Custodian be ordered to
execute and register a sale deed thereof in his favour. The
suit was resisted by the Custodian and the main contention
raised on his behalf was that the suit was barred under s.
46 of the Act. The Subordinate Judge however held that the
appellant was entitled to the benefit of S. 53-A of the
Transfer of Property Act (No. 4 of 1882) and that the civil
court had jurisdiction inasmuch as the sale had taken place
before 1947.
The Custodian then went in appeal to the High Court, and the
only question raised there was that the suit was barred
under s. 46 of the Act. The High Court reversed the
decision of the Subordinate Judge and held that the
appellant had been given notice under S. 7 of the Act in
December 1950 and did not appear before the Deputy Custodian
with the result that the property was declared as evacuee
property. The High Court further held that after this
declaration the appellant’s remedy was to proceed by way of
appeal or revision under the Act and that a suit was barred
in view of s. 46 thereof. The appellant’s contention that
as he was a third party he was entitled to maintain the suit
was negatived by the High Court. In consequence the High
Court dismissed the suit but directed the parties to bear
their own costs. The appellant then obtained a certificate
from the High Court to appeal to this Court, and that is how
the matter has come up before us.
We are of opinion that there is no force in this appeal. It
is unnecessary to consider the cases cited at the bar on
behalf of the appellant for whatever may be the position of
law where the title of the evacuee himself is in dispute, as
to which we express no opinion, there can be no doubt that
where the property admittedly belonged to the evacuee and
the person filing the suit claims to be a transferee from
the evacuee, the suit would certainly be barred in view of
s. 46 of the Act. Section 46 inter alia lays down that
"save as otherwise expressly provided in this Act, no civil
or revenue court shall have jurisdiction to entertain or
adjudicate upon any question whether any property or any
right to or
217
interest in any property is or is not evacuee property." It
is admitted that the appellant had received notice from the
Deputy Custodian under s. 7(1) of the Act but had neglected
to appear before him and it was in those circumstances that
the Deputy Custodian declared the property to be evacuee
property. That order of the Deputy Custodian could be taken
in appeal under s. 24 by the appellant to the authorities
provided under the Act, and if necessary the appellant could
also go in revision to the Custodian General under s. 27.
The scheme of the Act clearly is that where the property
admittedly belongs to the evacuee any person claiming the
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property or any interest or right therein has on receipt of
a notice under s. 7(1) to appear before the authorities
entitled to deal with the matter under the Act. Any person
aggrieved by an order of such an authority made under s. 7
has the right to appeal under s. 24 and if necessary to go
in revision under s. 27. The Act thus provides a complete
machinery for a person interested in any property to put
forward his claims before the authorities competent to deal
with the question and to go in appeal and in revision if the
person interested feels aggrieved. Having provided this
complete machinery for adjudication of all claims with
respect to evacuee property, the Act, by s. 46, bars the
jurisdiction of civil or revenue courts to entertain or
adjudicate upon any question whether any property or any
right to or interest in any property is or is not evacuee
property. Where therefore the property or any right to or
interest in any property undoubtedly belonged to the evacuee
and any transferee from the evacuee claims the property or
any right to or interest therein he has to avail of the
remedies provided under the Act. If he fails to do so he
cannot file a suit in the civil or revenue court to have the
question whether any property or any right to or any
interest therein is or is not evacuee property decided in
view of the clear provision of s. 46 (a) of the Act. The
fact that the Custodian in his order said that the appellant
could go and establish his right in a competent court is of
no assistance to the appellant, for if the law bars the
jurisdiction of civil and revenue courts the Custodian’s
observation that the party before him could go to a
competent court to establish his right will not confer
jurisdiction on a civil or revenue court. Nor can it be
said on the facts found in the present case that the
appellant had become the owner of the property before 1947,
for, admittedly the property was worth more than Rs. 100 and
it is not disputed that a registered sale deed was necessary
to pass title from Abdul Aziz Khan to the appellant. No
registered sale deed was executed in this case and therefore
the property did not pass from Abdul Aziz Khan to
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the appellant even up to the time when Abdul Aziz Khan
became an evacuee. It may be that if Abdul Aziz Khan had
tried to get back the property, s. 53-A of the Transfer of
Property Act would come to the aid of the appellant in
defence. But the present suit has been filed to establish
the right of the appellant as owner of the property and in
such a suit the appellant cannot take the benefit of s. 53-A
of the Transfer of Property Act. We, therefore, hold in
agreement with the High Court that the suit is clearly
barred under s. 46 (a) of the Act.
The appeal therefore fails and is hereby dismissed. In the
circumstances we pass no order as to costs.
G.C. Appeal
dismissed.
219