Delhi High Court
Municipal Corporation Of Delhi vs Abdul Kabeer (Deceased) Through ... on 22 July, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.93/2009
% 22nd July, 2016
MUNICIPAL CORPORATION OF DELHI ....Appellant
Through: Mr. Nalin Tripathi, Advocate with Mr. Anil
Pathak, Advocate.
versus
ABDUL KABEER (DECEASED) THROUGH LRS & ORS. ..... Respondents
Through: Mr. S.D. Ansari, Advocate with Mr. I.
Ahmad, Advocate for respondent no.1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) is filed by the defendant no.2 in the suit against the
Judgment of the First Appellate Court dated 19.3.2007 allowing the appeal of the
plaintiff in the suit, and who is the respondent no.1 in the present second appeal.
Trial Court by its Judgment dated 17.8.1991 had dismissed the suit filed by the
respondent no.1 herein and the first appellate court by its judgment has decreed
the suit of the plaintiff/respondent no.1 herein filed for possession and partition of
half share of the suit property bearing property no.704 old/1315 new and 705
old/1316-18 New Ward no.III Phatak Habash Khan, Delhi. Municipal
Corporation of Delhi (MCD)/defendant no.2/appellant by this second appeal prays
for setting aside the Judgment of First Appellate Court dated 19.3.2007 and for
restoring the judgment of the trial court which dismissed the suit of the
respondent no.1 herein for possession and partition.
2. At the outset, it is required to be noted that the respondent no.1
herein (original plaintiff) died during the pendency of the second appeal. The
legal heirs of late respondent no.1 filed an application being C.M. No.22489/2010
under Order XXII Rule 3 CPC for being substituted as legal heirs of the
respondent no.1. This application was allowed vide Order dated 15.2.2011 and
the legal heirs of respondent no.1 were brought on record. Amended memo of
parties was directed to be filed by the appellant, however, the amended memo of
parties already stood filed with C.M. No.22489/2010. This Order dated 15.2.2011
reads as under:-
"+CM APPL. No.22489/2010 (u/O 22 R3 r/w S 151 CPC) in RSA
No.93/2009
Notices of this application issued to the non-applicants respondents 2, 3 and
the appellant have been served.
Counsel for the appellant as also for respondents 2 and 3 do not oppose this
application.
In the absence of any opposition, this application is allowed. LRs of deceased
respondent No.1-Sh Abdul Kabir as mentioned in para 2 of this application are
allowed to be brought on record.
Amended memo of parties be filed by the appellant within two weeks.
Re-notify on 28.04.2011.
+CM APPL. No.10187/09 (for condonation of delay) in RSA No.93/2009
Reply on behalf of respondent No.1 to the application for Condonation of
delay is already on record.
Counsel for respondent No.2 does not oppose this application for Condonation
of delay. Learned counsel for respondent No.3 seeks and is allowed two
weeks time to file the reply. Let the rejoinder to the replies on behalf of
respondents 1 and 3 be filed within two weeks thereafter.
List this matter again on 28.04.2011."
3. The wife of late respondent no.1, and who was one of the legal heirs
of respondent no.1 brought on record vide Order dated 15.2.2011, died pendente
lite, and since her legal heirs were already on record, only amended memo of
parties was directed to be filed by the appellant vide Order dated 4.12.2014. The
Order dated 4.12.2014 reads as under:-
"C.M. No.10186/2009 (for stay)
Upon hearing, it is directed that status quo as of today in respect of suit
property be maintained by the parties.
Application is disposed of.
RSA 93/2009
Counsel for first respondent informs that wife of deceased respondent i.e. legal
heir No.1 has expired in August, 2014 and he will place on record copy of
death certificate and also submits on instructions that all the legal heirs of
deceased are already on record.
Let appellant file Amended Memo of Parties within a week.
Learned counsel for the parties seek time to inspect the record and argue the
appeals.
Renotify on 10th March, 2015."
4. In view of the aforesaid Orders dated 15.2.2011 and 4.12.2014, I
reject the argument urged on behalf of the legal heirs of the respondent no.1 that
the appeal stands abated.
5. The facts of the case are that the plaintiff/Sh. Abdul Kabeer filed the
suit claiming possession and partition with respect to his half share of property
no.704 old/1315 new and 705 old/1316-18 New Ward no.III Phatak Habash
Khan, Delhi. Plaintiff claimed that his father Abdul Jabbar was the owner of the
half share in the suit property but this property was wrongly notified as evacuee
property by Gazette Notification dated 15.7.1949 inasmuch as Abdul Jabbar was
not an evacuee and hence his half share in the suit property being declared as
evacuee property by the said notification was illegal. It was further the case of the
plaintiff that during his lifetime Abdul Jabbar made an application under Section
16 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as
„1950 Act‟) for restoration of the property and competent authority passed an
Order on 23.5.1969 declaring the half share of Abdul Jabbar as a non evacuee
property and that the possession of the half share of the property of Abdul Jabbar
be restored to him. At this stage itself I note that it is the language of this Order
dated 23.5.1969 which will have to be examined, and which would be done so
during the course of discussion of the present appeal. The entire subject property
had been handed over to the appellant/defendant no.2 for building a school and
the appellant/defendant no.2 had purchased this property from the Custodian at a
sale price of Rs.24,000/- vide cheque no.866981 dated 31.3.1960 drawn on State
Bank of India. Possession of the property, it is pleaded that the same was forcibly
taken by the appellant on 6.7.1960 though it is found that possession may have
been taken in the year 1970. In sum and substance, the case of the plaintiff was
that the half share of his father Abdul Jabbar was wrongly declared as evacuee
property and by the Order of the competent authority dated 23.5.1969, the half
share of Abdul Jabbar should be restored back to the plaintiff/respondent no.1
herein because Abdul Jabbar was forcibly dispossessed by the appellant/defendant
no.2 from the suit property.
6. The appellant/defendant no.2 contested the suit by filing the written
statement and pleaded that the civil court had no jurisdiction to try the suit.
Though the provision was not stated, this objection was raised because of Section
46 of the 1950 Act which provides that with respect to any right or interest in the
property that it is not an evacuee property or for questioning any action taken by
the Custodian General or the Custodian under the 1950 Act or which the
Custodian General or Custodian is empowered under the 1950 Act to determine,
no civil suit will lie to question such actions. The appellant/defendant no.2 also
pleaded that it is the owner of the suit property by means of registered Sale Deed
dated 28.11.1960 vide sale deed registered no.4920 in additional book volume
no.561 on pages 357 to 360. The suit was therefore prayed to be dismissed.
Defendant no.1 in the suit was Union of India and defendant no.3 in the suit was
Regional Settlement Commissioner, both of which defendants failed to appear,
and hence were proceeded ex parte.
7. Trial court vide Order dated 10.12.1986 framed the following
issues:-
"1. Whether the plaintiff has cause of action? OPP
2. Whether civil court has no jurisdiction? OPD
3. Whether suit is not maintainable? OPD
4. Whether the plaintiff is entitled to the relief prayed for? OPD"
8. Trial court held issue no.1 in favour of the appellant/defendant no.2
that since the appellant/defendant no.2 had become the owner of the suit property,
no cause of action arises for the plaintiff to file the suit. Issue no.2 of jurisdiction
was decided against the appellant/defendant no.2 as the written statement was
vague not specifying how the civil court had no jurisdiction. Issue no.3 was as to
whether the suit being not maintainable was decided in favour of the
appellant/defendant no.2 as per paras 10 and 11 of the judgment and which paras
10 and 11 read as under:-
"ISSUE NO.3
10. The plaintiff has filed this suit for possession and separation by partition
of one half share of property no.1315, 1316 to 1318. The case of the defendant
M.C.D. is that the property has already been purchased by M.C.D. in the year
1960. The plaintiff has made M.C.D., Union of India and Settlement
Commissioner as parties to the suit and has prayed that a decree with costs for
possession by partition and separation of the one half share owned by plaintiff per
site plan be passed in favour of the Plaintiff and against the defendant. As per my
finding to defendant no.1 above, the plaintiff never became the owner of the suit
property and he was never in possession of the suit property. The ownership of
the property vested in D.M.C. by registered sale deed and the plaintiff cannot
claim possession from the M.C.D. unless and until he proves that he is the owner
of the property. The documents filed on record prove otherwise. The plaintiff
has produced for examination P.W.1 Jagbir Singh. According to him this
property was declared evacuee property and custodian became owner of one half
share whereas Abdul Jabbar moved an application on 23.05.69 that the property is
not an evacuee property and prayed for release of half share and on his
application an order was passed on 23.05.69. This witness had not brought the
notification and the order dated 23.05.69. He was directed to bring the same but
he was not produced for examination thereafter rather P.W. 1 Udey Singh was
summoned by the plaintiff and this witness brought record pertaining to property
No.704/705 Old and 1315-1318. New and stated that this property was declared
as evacuee property and Abdul Jabbar filed an application for restoration of half
share of the property claiming that it is non-evacuee and on his application order
Ex.PW2/1 was passed. The copy of the order dated 23.05.69 of Sh. A.G.
Waswani, Settlement Commissioner is to the affect that the applicant is entitled to
the restoration of the evacuee property described in schedule and ordered that the
applicant be given alternative property as agreed to by him before the Assistant
Custodian, Delhi on 30.12.68 subject to the condition that the amount due to the
custodian in respect of the properties for the management thereof shall be paid by
the applicant to the custodian. This P.W. also stated that the property No.704 Old
and 1315 New had been transferred to the M.C.D. on 03.07.70 by a conveyance
deed. He admitted that Abdul Jabbar was not given possessor of this property.
11. From the statements made by this witness it becomes clear that in lieu of
the property sought to be possessed by the plaintiff in the present suit his father
was allotted alternative property subject to the condition that he has to clear all
the dues against this property in favour of the custodian. It is not proved that the
father of the plaintiff cleared the dues of the said property. However, from the
statement of this witness it becomes clear that the suit for possession of this
property by the plaintiff is not maintainable because orders passed on 23.06.69
clearly disentitled the father of the plaintiff from the property in suit and when the
father of the plaintiff was not entitled to the possession of the suit property then
the plaintiff is also not entitled for the possession of the said property and the suit
of the plaintiff is not maintainable. Issue is decided accordingly."
(underlining added)
9. The first appellate court by the impugned judgment has held that by
virtue of the Order dated 23.5.1969 (Ex.PW2/1), the Department of Rehabilitation
itself had passed an order that the suit property was not an evacuee property and
hence according to the first appellate court the suit property was to be restored to
the plaintiff. The first appellate court also held that what is stated in the Order
dated 23.5.1969 is also confirmed by the subsequent Letter of the Regional
Settlement Commissioner dated 26.11.1969, Ex.PW-7/B. The first appellate court
held that there was no bar to the jurisdiction of the civil court as per its
interpretation of Section 46 of the 1950 Act and which is that once the property is
non evacuee property, Section 46 does not apply. The first appellate court has
given the following reasons for holding that the findings of the trial court are
misplaced:
"On assessment of evidence on record in the light of statutory provisions of law,
the findings returned by the Trial Court is misplaced for the following reasons:-
(i) there were objections filed in 1951 immediately after the issuance of
notifications;
(ii) order dated 23.05.1969 (Ex. PW-2/1) is decisive and makes the applicant
Shri Abdul Jabbar entitled for restoration of the property described in the
schedule of order dated 23.05.1969;
(iii) Rule 37 of the Act, 1950 is regarding restitution of the property and after
order dated 23.05.1969, the claimant or the present appellant is entitled for
restoration of the property;
(iv) it would not deprive the claimant or the appellant from the property
merely for the reason that the conveyance deed was executed by the Custodian in
favour of the respondent no. 2, particularly when they are two wings of the
Government. Letters dated 11.08.1969 and 26.11.1969 reflect about the
cancellation of transfer of the property as well as refund of the amount.
Witness PW-6 Shri Prakash Chauhan, UDC Land & Estate Department, Town
Hall, Delhi had deposed about the purchase of the property No. III/1315 to 1318.
1324 to 1325 situated at Phatak Rangmahal, Delhi by MCD from the Custodian
for a sale price of Rs. 24,000/- vide cheque No. OC-4/866981 dated 31.03.1960
drawn on State Bank of India and had taken possession on 06.07.1960. When the
decision was taken on the objections of the claimant Shri Abdul Jabbar, that he is
entitled for restoration of the property described in the schedule of order dated
23.05.1969 followed by further instructions to the respondent no. 2/MCD for
cancellation of transfer of the property as well as refund of the amount, it would
not deprive the appellant merely for the reason that the respondent no. 2 had paid
the consideration of Rs. 24,000/- in respect of the property in question as well as
for other property and there was conveyance deed in its favour;
(v) Section 12 of the Displaced Persons (Compensation of Rehabilitation)
Act, 1954 described the object of public purposes to acquire the evacuee property
for rehabilitation of the displaced persons. It is an admitted feature of the case
that the respondent no. 2 had to develop a school at the property in question but
the school has not been raised till date;
(vi) the appellant cannot be deprived of his rights to the property merely for
the reason that the decision was given on 23.05.1969 in favour of the claimant
under section 16 of the Act, 1950 and prior to its restoration to the claimant, the
conveyance deed was executed in favour of the respondent no. 2 in respect of the
property described in the schedule of order dated 23.05.1969;
(vii) in terms of Rule 37 of the Administration of Evacuee Property (Central)
Rules, 1950, the possession ought to have been restored to the claimant but
restitution has not been dealt. The appellant cannot be denied restitution merely
for the reasons that the orders were passed on 23.05.1969 and prior to that the
property was conveyed to the respondent no. 2/MCD on 06.07.1960; and
(viii) the respondent no. 2/MCD purchased the properties III/704/1315 (new)
and III/705/1316-18 (new) situated in Phatak Habas Khan/Rangmahal, Delhi by
way of conveyance deeds registered on 28.11.1960. The claimant Shri Abdul
Jabbar was held entitled for restoration of the property-as described in the
schedule (i.e. III/704/1315 (new) and III/705/1316/18 (new) situated in Phatak
Habas Khan, Delhi) of order dated 23.05.1969 (Ex. PW-2/1). To say, if the
properties III/704/1315 (new) and III/705/1316-18 (new) situated in phatak Habas
Khan, Delhi was notified, then the Evacuee Interest (Separation) Act, 1951 makes
of competent to partition the property according to the share of the claimant,
Custodian, etc."
10. When this appeal was admitted for hearing on 10.3.2015, the
following substantial question of law was framed:-
"Whether the finding returned by the first appellate court suffers from
any perversity in the light of the evidence adduced by the parties? If so,
to what effect?"
11. Learned counsel for the appellant/defendant no.2 has very
vehemently argued the following aspects:-
(i) The first appellate court has totally misconstrued the Order of the
Department of Rehabilitation dated 23.5.1969 inasmuch as this order in no way
holds that the property of Abdul Jabbar be restored back to him although the order
did hold that the property was of Abdul Jabbbar and hence was not an evacuee
property, and that this order clearly/categorically states that Abdul Jabbar be
given an alternative property and not the suit property, and which was in fact
agreed to by Abdul Jabbar as shown from the content of the Order dated
23.5.1969.
(ii) The civil court has no jurisdiction because of Section 46 of the 1950 Act
and the first appellate court has in a most perverse manner held Section 46 not to
be applicable allegedly on the ground that the property is not an evacuee property
whereas Section 46 is very clear that any issue as to whether the property is or is
not an evacuee property cannot be decided by the civil court once that property is
the subject matter of any decision or notification under the 1950 Act.
12. Learned counsel for the legal heirs of the plaintiff/respondent no.1
herein has very vehemently supported the reasoning in the judgment of the first
appellate court by placing reliance upon the language of the Order of the
Department of Rehabilitation dated 23.5.1969. It is also argued on behalf of the
counsel for the legal heirs of the deceased plaintiff that the Order dated 23.5.1969
was reiterated by the Letter of the Regional Settlement Commissioner on
26.11.1969 (Ex.PW-7/B). Counsel for the legal heirs of the deceased plaintiff
places reliance upon the conclusions of the first appellate court which I have
already reproduced hereinabove. On behalf of the legal heirs of the deceased
plaintiff it is thus prayed that the second appeal be dismissed.
13. Before turning to the arguments of the counsels for the parties, it will
be necessary to refer to the relevant provisions of the 1950 Act as also the Orders
dated 23.5.1969 (Ex.PW-2/1), Letter dated 11.8.1969 (Ex.PW-7/A) of appellant
and the Letter of the Regional Settlement Commissioner dated 26.11.1969
(Ex.PW-7/B) and these provisions, order and letters read as under:-
"Section 7. Notification of evacuee property.-(1) Where the Custodian is of
opinion that any property is evacuee property within the meaning of this Act, he
may, after causing notice thereof to be given in such manner as may be prescribed to
the persons interested, and after holding such inquiry into the matter as the
circumstances of the case permit, pass an order declaring any such property to be
evacuee property.
[(1A) Where during the pendency of any proceeding under sub-section (1) for
declaring any property to be evacuee property any person interested in the property
dies, the proceeding shall, unless the Custodian otherwise, directs, be continued and
disposed of as if such person were alive.]
(2)Where a notice has been issued under sub-section (1) in respect of any property,
such property shall, pending the determination of the question whether it is evacuee
property or otherwise, be incapable of being transferred or charged in any way,
except with the leave of the Custodian, and no person shall be capable of taking any
benefit from such transfer or charge except with such leave.
(3)The Custodian shall, from time to time, notify, either by publication in the
Official Gazette or in such other manner as may be prescribed, all properties
declared by him to be evacuee properties under sub-section (1).
Section 8. Vesting of evacuee property in the Custodian.-(1) Any property
declared to be evacuee property under Section 7 shall be deemed to have vested in
the Custodian for the State,-
(a) in the case of the property of an evacuee as defined in sub-clause (i) of clause (d)
of section 2, from the date on which he leaves or left any place in a State for any
place outside the territories now forming part of India;
(b) in the case of the property of an evacuee as defined in sub-clause (ii) of clause
(d) of section 2, from the 15th day of August, 1947; and
(c) in the case of any other property, from the date of the notice given under sub-
section (1) of section 7 in respect thereof.
xxxxx xxxxx xxxxx
Section 16:-Restoration of evacuee property-[(1) Subject to such rules as may be
made in this behalf, any evacuee or any person claiming to be a heir of an evacuee
may apply to the Central Government or to any person authorized by the Central
Government in this behalf (hereinafter in this section referred to as, „the authorized
person‟) that any evacuee property which has vested in the Custodian and to which
the applicant would have been entitled if this Act were not in force, may be restored
to him.]
xxxxx xxxxx xxxxx
[(2) On receipt of an application under sub-section (1), the Central Government or
the authorized person, as the case may be, shall cause public notice thereof to be
given in the prescribed manner and after causing an inquiry into the claim to be held
in such manner as may be prescribed, shall-
(a) If satisfied-
(i) that the conditions prescribed by rules made in this behalf have been satisfied;
(ii) that the evacuee property is the property of the applicant; and
(iii) that it is just or proper that the evacuee property should be restored to him;
make an order restoring the property to the applicant; or
xxxxx xxxxx xxxxx
(3) Upon the restoration of the property to the evacuee or to the heir, as the case may
be, the Custodian shall stand absolved of all responsibilities in respect of the
property so restored, but such restoration shall not prejudice the rights, if any, in
respect of the property which any other person may be entitled to enforce against the
person to whom the property has been so restored.
Section 46:- Jurisdiction of Civil Courts barred in certain matters- Save as
otherwise expressly provided in this Act, no civil or revenue Court shall have
jurisdiction-
(a) 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; or
(c) to question the legality of any action taken by the Custodian-General or the
Custodian under this Act; or
(d) in respect of any manner which the Custodian-General or the Custodian is
empowered by or under this Act to determine.
Rule 37:- Restitution- When any property taken into possession as an evacuee
property is subsequently declared by the Custodian or any other competent authority
to be a non-evacuee property, the Custodian may, on the application of any party
entitled to the actual possession thereof, take such action as will place the parties in
the same position in which they were on the date of possession. For this purpose,
the Custodian may order the person in occupation of the property to vacate the same
and the Custodian may use such force or authorize the use of such forces as may be
necessary for the purpose.
Letter dated 23.5.1969 (Ex.PW2/1)
"Ex. PW-2/1
(In Supersession of the Ministry of Registered A.D.
Rehabilitation order No. 5(369)/
Rest/57/5119 dated 19.6.57).
No. 5(369)/57-Pro/4979
Government of India
Ministry of Labour, Employment &
Rehabilitation
(Department of Rehabilitation)
New Delhi - 11 the 23 May, 1969.
ORDER.
(Section 16 of the Administration of Evacuee Property Act, 1950)
WHEREAS Abdul Jabbar son of Abdul Razak has made an application to the
Central Government that the evacuee properties which have vested in the Custodian
and to which the applicant would have been entitled if the Administration of
Evacuee Property Act, 1950, were not in force, may be restored to him;
AND WHEREAS the Central Government is satisfied :-
(i) that the conditions prescribed in the rules made in this behalf have been
satisfied;
(ii) that the evacuee properties described in schedule were the properties of
the applicant; and
(iii) that it is just and proper that the said evacuee properties should be restored
to the applicant;
NOW, THEREFORE, in exercise of the powers conferred by Section 16 of the
Administration of Evacuee Property, Act, 1950, the Central Government hereby
declares the applicant to be entitled to the restoration of the evacuee property
described in Schedule and directs that the applicant may be given alternative
property as agreed to by him before the Asstt. Custodian, Delhi on 30.12.1968
by the person authorised in this behalf subject to the condition that the amount due
to the Custodian in respect of the properties or the management thereof shall be paid
by the applicant to the Custodian.
SCHEDULE. ½ share in property No.
III/704/135 (new) and III/705/
1316-18 (new) situated in phatak
Habas Khan, Delhi.
(A.G. Vaswani)
Settlement Commissioner & Ex. Officer
Under Secretary to the Govt. of India.
To
Shri Adbul Jabbar s/o Abdul Razak,
C/o Habib 2307, Gali Mir Madari,
Khirki Farashkhana, Delhi.
He is requested to contact the Custodian of Evacuee Property, Delhi,"
"Letter dated 11.8.1969 (Ex.PW-7/A)
Municipal Corporation of Delhi
(Lands & Estate Department)
No. 1539/Bhu. & Sa. Vi. Dated: 11.08.1969
The Chief Settlement Commissioner,
Ministry of Rehabilitation,
New Delhi,
Subject : Transfer of H.No. III/1315 to 1318 and 1324-25 at Phatak Habash Kjan,
Delhi.
Sir,
Kindly refer to this office letter No. 751/E/L&E dated 3-6-69 on the subject noted
above to which no reply has been received so far. I may further state that the
applicant Shri Abdul Jabbar has supplied a copy of order dated 23-5-39 in this
respect wherein the Settlement Commissioner has restored property No.
III/704/1315 (new & III/705/1316- 148(new) in favour of the applicant and he may
be given alternative property on the condition that the amount due to the Custodian
in respect of the properties or the management thereof shall be paid by the
application to the Custodian.
It is, therefore, requested that the above contents may kindly be confirmed and
this office may be advised about the action required to be taken in this case by this
office. Since the applicant is representing regularly it may kindly be got expected as
early as possible.
Yours faithfully,
-Sd-
(O.P. Maggon)
Manager, Lands & Estates
Copy forwarded to Shri Abdul Jabbar S/o Shri Abdul Razak C/o Habib 2307, Gali
Mir Maderi Khirki Farashkhana, Delhi for information with reference to his
representation dated 12-6-69.
-Sd-
(O.P. Maggon)
Manager, Lands & Estates
Letter dated 26.11.1969 (Ex.PW-7/B)
No.MO/I-X/III/1315-18(new)etc/D/4163
Office of the
Regional Settlement Commissioner,
Jamnagar House, New Delhi-11.
Dated the 26th Nov., 1969
To,
The Manager,
Lands & Estate Department,
Municipal Corporation of Delhi,
Town Hall, Delhi-6.
Subject: Transfer of H. No.III/1315-1318 & 1324-25 at Phatak Habash
Khan, Delhi.
Sir,
I am directed to refer to your letter No.1539 dated 11.08.1969 addressed to the
Chief Settlement Commissioner, New Delhi, and a copy of which has been enclosed
by the applicant with his application dated 29.08.1969 and to enclose a copy of the
order dated 23.05.1969 by way of confirmation, as desired in your letter referred to
above. The party has got to be compensated for the restored properties and this may
be done by restoring the original properties to him, which has already known to you,
stands transferred to you and requisite transfer documents have since been sent to
you. This is possible if the Corporation agreed to the cancellation of the above
transfer and in that even the payment made by the Corporation will be refunded as
usual.
Yours faithfully,
-sd-
(M. L. Sharma)
Manager Officer (I-X)
Copy to:
1. Shri R.C. Vasirani, Section Officer, Deptt. of Rehabilitation, Jaisalmer House,
New Delhi, for information with reference to his letter No.5(369)/57-Pro dated 23rd
July, 1969. A further report in the matter will be sent on receipt of a reply from the
Corporation.
2. Shri Abdul Jabbar S/o Shri Abdul Razak C/o Habib 2307, Gali Mir Maderi
Khirki Farashkhana, Delhi for information with reference to his application dated
29.08.1969.
-Sd-
Manager Officer (I-X)" (emphasis is mine)
14. The first aspect is the interpretation of the language contained in the
Order dated 23.5.1969 passed by competent authority under Section 16 of the
1950 Act read with Rule 37 thereof. In my opinion, there cannot be two
interpretations of the clear language of this Order dated 23.5.1969 because this
order in so many words states that no doubt the property of Abdul Jabbar was not
an evacuee property and he was entitled to restoration of the evacuee property but
it was directed that Abdul Jabbar be given an alternative property as was agreed to
by him before the Assistant Custodian, Delhi on 30.12.1968. Once the language
of the Order dated 23.5.1969 is so clear, I fail to understand as to how the original
plaintiff and now his legal heirs can at all argue that the Order dated 23.5.1969 in
any manner directs restoration of possession of the suit property to Abdul Jabbar.
The subsequent Letter of Regional Settlement Commissioner dated 26.11.1969
cannot change the contents of the Order dated 23.5.1969 which is passed under
the statutory provisions of Section 16 of the 1950 Act read with Rule 37 thereof
and which had achieved finality. The Letter of the appellant dated 11.8.1969 does
not contain any statement that appellant/defendant no.2 is not the owner of the
suit property. I therefore, hold that the first appellate court has committed gross
perversity and gross illegality in misleading the clear cut language of the Order of
the Department of Rehabilitation dated 23.5.1969 passed under Section 16 of the
1950 Act read with Rule 37 thereof. I must observe that this Court is indeed
surprised at the interpretation given by the first appellate court to the Order of the
Department of Rehabilitation dated 23.5.1969 in spite of the categorical language
in the same that Abdul Jabbar was only to be given an alternative property and
possession of the suit property was not to be restored back to Abdul Jabbar. It
also bears note that pursuant to the Order dated 23.5.1969 of Department of
Rehabilitation, Abdul Jabbar never pursued for the grant of alternative
accommodation or paid administration charges as required by the Order dated
23.5.1969.
15. In view of the aforesaid conclusions, I hold as totally perverse the
conclusions of the first appellate court which are reproduced above and which
hold that Abdul Jabbar was to be restored possession of the suit property allegedly
in terms of Order of the Department of Rehabilitation dated 23.5.1969.
16. Once as per Sections 7 and 8 of the 1950 Act the Custodian or the
Custodian General becomes owner of the property and it is deemed to be vested in
such authority, then the only way in which such a vesting can be set aside is by an
application under Section 16 of the 1950 Act read with Rule 37 thereof, and when
that was done by Abdul Jabbar it resulted in the Order dated 23.5.1969 whereby
for the claim of Abdul Jabbar he was given an allotment of an alternative property
and that too in terms of his own stand before the Assistant Custodian, Delhi on
30.12.1968.
17. In my opinion, the first appellate court has also committed a gross
perversity and complete illegality in holding that the suit is not barred by Section
46 of the 1950 Act. I have already reproduced Section 46 of the 1950 Act above
and the language of the said section leaves no manner of doubt whatsoever as to
the bar of the civil court with respect to deciding an issue which is the subject
matter of the decision of the competent authority under the 1950 Act including as
to whether a property continues or does not continue to be an evacuee property
while exercising powers under Section 16 of the 1950 Act read with Rule 37
thereof. In order to appreciate the perversity and total lack of application of mind
by the first appellate court on this issue of bar of the civil court, I would simply
reproduce the discussion of the first appellate court in para 6 of the impugned
judgment and which para 6 reads as under:
"6. While going through the record, various documents (i.e. Ex.PW-2/1,
Ex.PW-7/A and Ex.PW-7/B, reproduced herein above) are proved and undisptued
documents of the parties. Letter dated 23.05.1969 (Ex.PW-2/1) is the order under
section 16 of the Administration of Evacuee Property Act, 1950.
The respondent no.2/MCD had raised an objection in respect of the jurisdiction of
the Civil Court, which was decided against MCD/respondent no.2 while returning
the finding on issue no.2 by the Trial Court. Now, in the present appeal, the other
respondents no.1 and 3 have also raised an objection while relying upon the
Section 46 of the Act, 1950 (which has also been reproduced herein above). On
assessment, the appellant never sought declaration or to adjudicate upon the
question of status of the property as an evacuee or non-evacuee property, except
submitting that the appellant‟s father Shri Abdul Jabbar was non-evacuee person
and his property was non-evacuee property. Order dated 23.05.1969 (Ex.PW-2/1)
describes the property in the schedule (i.e. ½ share in the property No.III/704/135
(new) and III/705/1316-18 (new) situated in phatak Habas Khan, Delhi) and this
order also opined restoration of the scheduled property to Shri Abdul Jabbar. To
say, it was already ordered and held that the ½ share in the suit property was
required to be restored to the claimant. Hence, there was no question for
determination or adjudication about the status of the property as an evacuee
property or non-evacuee property property, which was not a subject matter of
jurisdiction of the Civil Court. Therefore, Section 46 of the Act, 1950 does not
apply, for these reasons and the reasons already returned by the Trial Court, I do
not find any substance in the submissions of the respondents no.1 and 3 about the
bar of jurisdiction of the Civil Court. In addition, this objection of jurisdiction
has been taken first time in appeal by the respondents no.1 and 3, which is barred
by Section 21(1) of Code of Civil Procedure."
18. I am afraid that para 6 of the impugned judgment of the first
appellate court really is an apology for a discussion on the bar contained in
Section 46 of the 1950 Act because it is not understood as to how the appellate
court can hold that Section 46 does not apply inasmuch as it is Abdul Jabbar
himself who applied under the provision of Section 16 of the 1950 Act read with
Rule 37 thereof which resulted in the Order dated 23.5.1969 of the Department of
Rehabilitation, and which is surely an order under the 1950 Act and consequently
there remains no doubt that the bar under Section 46 immediately came into play.
Clearly therefore the civil court has no jurisdiction to try the suit and it was
barred.
19. In fact, the need to hold that the jurisdiction of the civil court is
barred by Section 46 of the 1950 Act is in a way infructuous because the effect of
bar of jurisdiction of the civil court would be to allow the competent authority to
pass appropriate orders under Section 16 of the 1950 Act read with Rule 37
thereof, however, this jurisdiction has already been exercised by the competent
authority under the 1950 Act which has resulted in the Order dated 23.5.1969.
Therefore, the only issue remains is not of bar of jurisdiction of civil court but the
fact that the issue stands conclusively determined in terms of the Order dated
23.5.1969 and which will operate as res judicata between the parties on the
general principles of res judicata vide Gulam Abbas and Others Vs. State of
Uttar Pradesh and Others, (1982) 1 SCC 71 : AIR 1981 SC 2198 because the
Order dated 23.5.1969 has become final. Thus the issue only boils down to
determine the meaning and effect of the Order dated 23.5.1969 and which has
already been done above.
20. In view of the aforesaid discussions, this second appeal is allowed by
answering the substantial question of law framed on 10.3.2015 in favour of the
appellant and against the respondents thereby setting aside the judgment of the
first appellate court and restoring the judgment of the trial court dismissing the
suit for possession and partition filed by the erstwhile plaintiff, now represented
by his legal heirs. Parties are left to bear their own costs.
JULY 22, 2016 VALMIKI J. MEHTA, J
ib/Ne
