Delhi High Court
Mahmoodan Begum (Through L/Rs) vs Faizul Hasan (Through L/Rs) And ... on 3 February, 2005
Author: B Patel
Bench: B Patel, S K Kaul
JUDGMENT
B.C. Patel, J.
1. The appellant aggrieved by the impugned judgment of learned Single Judge of this Court (as she then was) dated 12.03.1986 sustaining the claim of respondent No. 1 had filed the present appeal.
2. In order to appreciate the controversy, the relevant facts are being set out hereinafter.
3. The Assistant Custodian of Evacuee Property, Bulandshahar held a number of plots in Village Sabdalpur. Tehsil Bulandshahar. as composite property within the meaning of Administration of Evacuee Property Act, 1950. Shri Alimuddin, one of the co-sharers, was alone found to be an evacuee, while the share of the others including Shri Hakimuddin was held to be non-evacuee. In terms of the Order dated 17.02.1956, the share of Shri Alimuddin was held to be 1/4th share in these plots and the Custodian filed an application under Section 6 of the Evacuee Interest (Separation) Act, 1957 for separation of the evacuee property of Shri Alimuddin in the composite property. This evacuee property was subsequently transferred to Shri Hakimuddin for a consideration of Rs. 1,525 on 25.01.1957 and the Sale Deed was also executed in favor of Shri Hakimuddin. Various property numbers were consolidated in one Khasra No. 40 measuring 11 Bighas 2 Biswas and 18 Biswansies. Shri Hakimuddin passed away in the year 1962 leaving behind his widow Smt. Khatun Bi, who inherited the property as the sole legal heir. Smt. Khatun Bi sold a part of the land measuring 7 Bighas 8 Biswas and 13 Biswansies on 07.05.1963 to Mahmoodan Begum and one Shabbruddin in the ratio of 1/4th and 3/4th respectively through registered Sale Deeds. It may be noticed that the appellants are successors to the interest of Mahmoodan Begum.
4. Smt. Khatun Bi further transferred another part of the land measuring 3 Bighas 5 Biswas and 17 Biswansies to Faizal Hassan. This is the second parcel of land transferred. Respondent No. 1 is Shri Faizal Hassan, who is now succeeded by his legal representatives as he passed away during the pendency of the present appeal.
5. It appears that Shri Shabbruddin was, in fact, a Pakistani national and had migrated in the year 1947 itself. The Custodian laid claim to 3/4th share transferred to Shri Shabbruddin on 07.05.1963 on the ground that the same was evacuee property and subsequently transferred this to Smt. Mahmoodan Begum for consideration.
6. The dispute between the parties started on Shri Faizal Hassan filing objections before the Assistant Custodian Evacuee Property, Lucknow in the year 1972. Shri Faizal Hassan was aggrieved by vesting of the plot of Shri Shabburddin in the Custodian and the subsequent transfer in favor of Mahmoodan Begum.
7. It may be noticed that an order was passed by the Deputy Custodian General on 28.08.1972 remanding the case to the Assistant Custodian for fresh determination of the evacuees. The Assistant Custodian thereafter by order dated 05.02.1973 rejected the claim of Shri Faizal Hassan, who did not challenge the evacuee nature of the property in question, but claimed as a co-sharer that he is entitled to the evacuee share of the property. The writ petition filed by him was rejected by the Deputy Custodian General on 23.03.1973. Aggrieved by the said order. Shri Faizul Hassan filed a civil writ petition being CWP No. 104/1973.
8. The writ petition was allowed by the impugned order dated 12.03.1986. The reasoning in the impugned order shows that learned Single Judge held that the consequence of Shri Shabbruddin being a Pakistani national was that the Sale Deed in his favor would stand cancelled. However, this would not automatically imply that the property would vest in the Custodian on account of the fact that in terms of Section 7(a) of the Administration of Evacuee Property Act, 1950, no property was to be declared as evacuee property after 07.05.1954. It was, thus, held that consequence of the same would be that the property remained that of Smt. Khatun Bi since the transfer was void ab initio.
9. On the claim of Shri Faizal Hassan, it has been observed that the claimed to be in actual possession through special power of attorney dated 10.09.1964 and, thus, it was held that he had a locus standi to challenge the transfer. This was so since the appellant had disputed the very locus of Shri Faizal Hassan to claim any right in the land in question.
10. It may further be noticed that the appellant had filed CM No. 2223/2003 to bring on record certain subsequent events during the pendency of the appeal and despite opportunity given to the respondents, no reply has been filed. In the applicant, it has been averred that Shri Faizal Hassan had, in fact, transferred his share in the property in question prior to the decision given by learned Single Judge in the writ petition in question. The relevant documents in that behalf have also been filed and the transfer is stated to have occurred in the year 1980. On a specific query, learned counsel for respondent No. 1 stated that he has not been receiving any instructions despite various communications.
11. It appears that respondent No. 1 (now through his L/Rs) must have lost interest in the litigation having sold their share in the property.
12. In our considered view, on the assumption of the reasoning of learned Single Judge that the property vested in Smt. Khatun Bi and not the Custodian, it was really only Smt. Khatun Bi who could have challenged the title of the appellant. However, she has not come forward to do so. Thus, it becomes material whether Shri Faizal Hassan at all had any right to file the writ petition and claim any declarations from this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
13. In this behalf, two facts are material - Firstly, insofar as being co-sharer is concerned, the transaction in favor of Shri Faizal Hassan occurred only on 28.10.1965 and the sale in favor of Mahmoodan Begum and Shabbruddin occurred on 07.05.1963, much prior to the said date. It was, thus, only Mahmoodan Begum and Shabbruddin, who were co-sharers of the property and a mere special power of attorney cannot be relied upon by Shri Faizal Hassan to claim to be a co-sharer of the property. These are two independent transactions and the sale in favor of Shri Faizal Hassan is the sale of the second parcel of the land. In the alternative if the sale deed is null and void, the property would revert to Smt. Khatun Bi & Shri Faizal Hassan cannot claim any rights.
14. The second important fact is that Shri Faizal Hassan had, in fact, sold the rights in the property prior to the decision of learned Single Judge. This fact ought to have been brought to notice of this Court and a party must approach the Court with clean hands more so when it is seeking the discretion of the Court in exercise of jurisdiction under Article 226 of the Constitution. Thus, before adjudication of the matter by learned Single Judge, Shri Faizal Hassan in any case seized to be a co-sharer of the property and is also further guilty of suppression of material facts, which ought to have been brought to notice of the Court prior to adjudication and on sale of the property by Shri Faizal Hassan. In fact, on this ground alone, respondent No. 1 would be disentitled to any relief in the writ petition.
15. In view of the aforesaid, the impugned order is set aside, the writ petition filed by respondent No. 1 is dismissed and the appeal is allowed leaving the parties to bear their own costs.
