Punjab-Haryana High Court
State Of Punjab vs Keshav Chander on 1 April, 2024
Neutral Citation No:=2024:PHHC:043183
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
****
RSA-3586-1986
Reserved on: 13.03.2024
Pronounced on: 01.04.2024
2024:PHHC:043183
STATE OF PUNJAB AND OTHERS
. . . . APPELLANTS
Vs.
KESHAV CHANDER THOUGH HIS LEGAL REPRESENTATIVES
. . . . RESPONDENT
****
CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
****
Argued by:- Mr. Sahil R. Bakshi, Advocate, for the appellants.
Mr. Parvinder Singh, Advocate, for the respondent.
****
DEEPAK GUPTA, J.
By way of this Regular Second Appeal, the unsuccessful defen-
dants (appellants herein) have approached this Court challenging the concur-
rent finding of the Courts below, whereby Civil Suit No.110 of 1984 titled as
'Kesar Chander Vs. Punjab State and others' filed by the plaintiff (respondent
herein) for declaration was decreed; and the first appeal filed by the appellants
was dismissed.
2. In order to avoid confusion, parties shall be referred as per their
status before ld. lower Court. During appeal, LRs of plaintiff - respondent
were brought on record.
3. According to the plaintiff, he had purchased the suit land from
previous owners Krishan Kumar and Jagdish Chander for consideration of
₹5300/- vide registered sale deed dated 02.12.1943 (Ex.P1); that defendants
had no concern with the said land but were threatening to dispossess him
(plaintiff) forcibly. Plaintiff prayed for decree of declaration that he is the
owner in possession of the suit land with further prayer for decree of perma-
1 of 10
Neutral Citation No:=2024:PHHC:043183
RSA-3586-1986 2024:PHHC:043183
nent injunction to restrain the defendants from dispossessing him from the suit
land in any manner.
4. The stand of the defendants was that though Krishan Kumar and
Jagdish Chander were earlier owner of the suit land, from whom plaintiff pur-
chased the same in 1943, but it is Noor Mohammad etc., who were recorded
as occupancy tenants in the suit land and who continued to possess the same
till 1946-47 i.e. till partition of the country and thus, plaintiff was not in pos-
session of the suit land. It was further pleaded that it is only after the migra-
tion of the Muslim occupants/tenants that the plaintiff occupied the land as
tenant at will. Defendants pleaded further that custodian of the evacuee prop-
erty stepped into the shoes of the Muslim Occupancy Tenants after their mi-
gration to Pakistan in 1947 and thereafter, custodian had become owner of the
suit land and plaintiff was left with no right, title or interest therein. With this
stand, defendants prayed for dismissal of the suit.
5. Necessary issues were framed. The material issue before the
Court to decide was as to whether the plaintiff is the owner in possession of
the suit land or not? Apart from the oral evidence, plaintiff relied upon sale
deed Ex.P1 besides revenue record (Jamabandies) Ex. P5 to P9. Defendants
did not adduce any evidence to support their stand. After hearing both the
sides, ld. trial Court vide its judgment dated 13.06.1984 held the plaintiff to be
owner in possession of the suit land and thus, decreed the suit. Defendants
filed First Appeal. The said Regular Civil Appeal No.188 of 1985 was dis-
missed by the ld. Addl. District Judge, Jalandhar on 01.08.1986 by upholding
the findings recorded by the trial Court.
6.1 Assailing the aforesaid findings, it is contended by ld. AAG,
Punjab appearing on behalf of the appellants that the Courts below have erred
2 of 10
Neutral Citation No:=2024:PHHC:043183
RSA-3586-1986 2024:PHHC:043183
in appreciating the controversy; that after partition of the country, as the Mus-
lim occupancy tenant migrated, the suit land automatically vested in the custo-
dian by virtue of Section 4 of the East Punjab Evacuees (Administration of
Property) Act, 1947 [for short the 1947 Act']; that there was no need to hold
any inquiry under Section 7 of the Administration of Evacuee Property Act,
1950 [for short 'the 1950 Act'] before vesting of the occupancy rights held by
the Muslims; that possession of the suit land was with the custodian, when the
Muslim evacuees migrated to Pakistan and that these aspects have been ig-
nored by the Courts below.
6.2 Ld. AAG, Punjab for the appellants relied upon Sham Singh Vs.
The Custodian in General, New Delhi, 1961 PLR 420 and M/s Hazi Esmail
Noor Mohammad & Co. & Others Vs. The Competent Officer, Lucknow,
AIR 1967 SC 1244.
7.1 Refuting the aforesaid contentions, ld. counsel for the respon-
dent-plaintiff contends that there is neither any pleading nor any evidence on
the part of defendants-appellants regarding automatic vesting of the ownership
rights by virtue of 1947 Act in the custodian; that there is no evidence on the
part of the State that the alleged evacuee left the territory outside India since
01.03.1947 and so, it cannot be presumed that it is evacuee property; that there
is neither any pleading nor evidence to show that at any point of time, physi-
cal possession was ever taken by the defendants as per Section 6 of the 1947
Act nor there is any evidence to show that any inquiry was conducted in ac-
cordance with Section 7 of the Act. Ld. counsel has referred to Darshan Lal
Vs. R.S. Aggarwal, 1958 PLR 669 and R.L. Aggarwal Vs. Darshan Lal, 1960
PLR 509.
7.2 Ld. counsel also submits that since no notice under Section 7 of
3 of 10
Neutral Citation No:=2024:PHHC:043183
RSA-3586-1986 2024:PHHC:043183
the 1950 Act was ever issued, so jurisdiction of the Civil Court is also not
barred under Section 46 of the 1950 Act. Ld. counsel has referred to Dr. Ra-
jender Prakash Sharma Vs. Gyan Chandra and others, AIR 1980 SC 1206
and Dr. Zafar Ali Shah and others Vs. The Assistant Custodian of Evacuee
Property, Jhansi and others, AIR 1967 SC 106 besides Seva Singh Vs. Union
of India, 2007(3) RCR (Civil) 748.
7.3 Ld. counsel contends that now plaintiff (presently through his
LRs) is owner in possession of the suit property for the last more than 79
years and are being unnecessarily harassed by the appellate-State.
Prayer is made for dismissal of the appeal.
8. I have considered submissions of both the sides and appraised
the record.
9. It is the admitted case of the parties that earlier Krishan Kumar
and Jagdish Chander used to be owner of the suit land, who had sold the same
to the plaintiff in 1943. At that time, suit land was in cultivating possession of
Noor Mohammad etc., in the capacity of occupancy tenants. It is also the con-
ceded case of the defendants-appellants that Noor Mohammad etc., continued
to be in possession of the suit land only till 1946-1947 and then on partition of
the country, plaintiff occupied the land as tenant at Will. Since plaintiff had
already acquired the ownership rights in the suit land in 1943, therefore, as
soon as he came in possession of the same on migration of the Noor Moham-
mad etc., the erstwhile occupancy tenants, the said tenancy rights merged into
ownership rights. In other words, plaintiff then became owner in possession of
the suit land.
9. Looking the case from another aspect, defendants contend that
by virtue of Section 4 of the East Punjab Evacuees (Administration of Evac-
4 of 10
Neutral Citation No:=2024:PHHC:043183
RSA-3586-1986 2024:PHHC:043183
uee Property) Act, 1947 [in short '1947 Act'], on migration of Noor Moham-
mad etc., the property came to be vested in the custodian. Learned State coun-
sel has made reference to Kundan Lal and another Vs. Hari Ram and others,
AIR 1981 Delhi 144, wherein it was held that there is no question of issuing
further notice or making a declaration that a property is evacuee property un-
der Section 7 of the Administration of Evacuee Property Act, 1950, if the
property had automatically vested in the custodian.
10. The question is as to whether the suit property had automatically
vested in the custodian by virtue of Section 4 of the 1947 Act as is contended
by the defendants. Sections 4 and 6 of East Punjab Evacuee (Administration
of Property) Act, 1947 (as they stood at the relevant time) read as under:-
"4. Vesting of evacuee property in the Custodian.-All evacuee property
situated within the province shall vest in the Custodian for the purposes of this
Act and shall continue to be so vested until the Provincial Government by
notification otherwise directs.
6. Custodian to take possession of evacuee property.-
(1) The Custodian shall take possession of all evacuee property vesting in him
under this Act.
(2) The custodian shall comply with the following provisions in taking
possession of any immovable property under Sub-section (1), namely :
(a) The custodian shall publish in the locality a notice specifying the
property of which he intends to take possession.
(b) Where the property is occupied by any person.
(i) The custodian shall give his notice in writing requiring such
person to vacate the property;
(ii) And if that person claims to be entitled to continue in
possession of the property, the Custodian shall hold a summary
inquiry and determine the claim;
(iii) The Custodian may allow such person to continue in
possession on such terms and conditions as he thinks proper if
such person is held to be so entitled;
(iv) If such person refuses or fails to vacate the property the
Custodian may evict such person and use all force necessary
5 of 10
Neutral Citation No:=2024:PHHC:043183
RSA-3586-1986 2024:PHHC:043183
thereto, and may after giving reasonable warning and facility to
any women not appearing in pubic to withdraw, remove or open
any lock or bolt or break open any door or do any act necessary
for taking possession.
(c) The Custodian shall proceed to take possession of the property in the
presence of not less than two residents of the locality, at least one of
whom if possible shall be a member of the community to which the
evacuee owner belongs, and shall prepare a record, in duplicate, of the
proceedings which shall be signed by him and each of the witnesses."
11. Though as per Section 4 of the 1947 Act, the evacuee property
situated in province of East Punjab is to vest in the custodian for the purpose
of the Act but custodian is required to take possession of the same by follow-
ing procedure laid down in Section 6 of the 1947 Act.
12. In the present case, it is not case of defendants- appellants that
they ever took possession of the property in dispute by following the proce-
dure laid down in Section 6 of the Act. Since it is the admitted case of the de-
fendants that on migration of Noor Mohammad etc., plaintiff had come in oc-
cupation of the property in dispute, therefore, it was necessary for the custo-
dian to follow the procedure laid in Section 6 of the Act to assume possession
of the suit property, which was never done. As possession was never taken
from the plaintiffs by following the procedure as laid down in Section 6 of the
1947 Act, therefore, said possession cannot be held to have become unautho-
rised.
13. Further, it is not the case of the defendants- appellants that on
migration of erstwhile occupancy tenants Noor Mohammad etc. to Pakistan in
1946-1947, the occupancy rights vesting in them had ripened into the owner-
ship rights, as per Punjab Occupancy Tenants (Vesting of Proprietary Rights)
Act, 1952.
6 of 10
Neutral Citation No:=2024:PHHC:043183
RSA-3586-1986 2024:PHHC:043183
14. Still further, the East Punjab Evacuees (Administration of Prop-
erty) Act, 1947 was repealed by virtue of Section 58 of the Administration of
Evacuee Property Act, 1950 [Central Act of 1950].
15. Section 7 and 7A of the Central Act of 1950 provides as under:-
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 af-
ter holding such inquiry into the matter as the circumstances of the case per-
mit, pass an order declaring any such property to be evacuee property.
(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, he 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).
7-A. Property not to be declared evacuee property on or after 7th May,
1954.
Notwithstanding anything contained in this Act, no property shall be declared
to be evacuee property on or after the 7th day of May, 1954.
16. The distinction between the 1947 Act and Central Act of 1950
was discussed by Punjab High Court in Sham Singh and another Vs. Custo-
dian General, New Delhi and others, 1961 PLR 420, and it was held as un-
der:-
"15. The procedure laid down in Section 7 and Section 8(1) of the Central
Act of 1950 was not provided by the East Punjab Act of 1947. The essential
distinction between the two provisions is that according to the East Punjab
Act, all property within the province automatically vested in the Custodian
7 of 10
Neutral Citation No:=2024:PHHC:043183
RSA-3586-1986 2024:PHHC:043183
without there being any previous claim, enquiry or declaration that the prop-
erty was evacuee property. Enquiry into claims to the property, the posses-
sion or the control of which has been assumed by the Custodian, was to be in-
stituted after an application had been made to that effect by the claimant un-
der Section 7 of the Act. In other words, the property became automatically
vested in the Custodian and any enquiry as to the claims or as to the character
of the property followed the vestment. The procedure under the Central Act
of 1950 was materially different in so far that Section 7 of the Central Act re-
quired the Custodian after causing a notice to be given and in his opinion any
property was evacuee property, to hold an enquiry into the matter and then
pass an order declaring any such property to be evacuee property. Under
Section 8 (1), a property which had been declared to be evacuee property un-
der Section 7, was deemed to have vested in the Custodian for the State. In
this case, in view of the provisions of the sub-section (2) of Section 8 of the
Central Act, a reference to the earlier East Punjab Act of 1947 is necessary
for determining the character of the property. Under Section 4 of the East
Punjab Act a property had already vested in the Custodian regardless of the
fact whether any declaration with respect to its evacuee character had been
made or not, or whether the Custodian by a general or special order had as-
sumed possession of or control over the property or not as contemplated by
Section 6 of the East Punjab Act. Holding of an enquiry into claims to evac-
uee property or the assumption of possession of or control over the property
was not a condition precedent to the vesting of the evacuee property in the
Custodian under Section 4. The position under the Central Act of 1950 had
been, to a certain extent, reversed, as section 7 required the Custodian to hold
on an enquiry after causing notice thereof to the persons interested and then
pass an order declaring any such property to be evacuee property. Under Sec-
tion 8(1) such property as had been declared to be evacuee property under the
preceding sections shall be deemed to have vested in the Custodian for the
State. Declaration as to the evacuee character of the property under the Cen-
tral Act is, therefore, a condition precedent to its vesting in the Custodian for
the State."
17. In the present case, the appellants- defendants by relying upon
the above-said authority contend the automatic vesting of the ownership rights
8 of 10
Neutral Citation No:=2024:PHHC:043183
RSA-3586-1986 2024:PHHC:043183
of the property in dispute in the custodian. However, there is no merit in this
contention, having regard to the fact that plaintiff had become owner of the
suit property in 1943 and then he already come into possession of the suit
property immediately on migration of Noor Mohammad etc. to Pakistan as is
admitted case of the defendants and thus, the tenancy rights of Noor Mohd
etc. had merged in the ownership rights of plaintiff. In such circumstances, it
was required for the defendants to follow the procedure under Section 6 of the
1947 Act. If still the defendants perceived the suit property to be an evacuee
property, then it was necessary to declare the same as such, as per Section 7 of
the Central Act of 1950 by following the procedure laid down therein and
which could have been done on or before 07th May, 1954 in view of Section
7A of the 1950 Act.
18. In Dr. Rajendra Prakash Sharma Vs. Gyan Chandra and
others, 1980 AIR (SC) 1206, it has been held by Hon'ble Supreme Court of
India that the conjoint reading of Sections 7 and 8 of the Central Act of 1950
would make it clear that making of a declaration after inquiry under Section 7
of the 1950 Act that property is evacuee property is a sine qua non for giving
the custodian dominion over the property. If no proceeding is taken under
Section 7, there can be no vesting of the property in the custodian. In Dr. Za-
far Ali Shah and others Vs. The Assistant Custodian of Evacuee Prop-
erty, Jhansi and others, AIR 1967 (SC) 106, it has been held by Hon'ble
Supreme Court, that when no notice is issued to the owners under Section 7 of
the Administration of Evacuee Property Act, 1950, order declaring the proper-
ties as evacuee properties is without jurisdiction as no property of any such
person can be declared to be evacuee property unless that person has been
given notice under Section 7 of the 1950 Act.
9 of 10
Neutral Citation No:=2024:PHHC:043183
RSA-3586-1986 2024:PHHC:043183
19. In this case, it is not the case of the defendants that they ever
followed the procedure laid down under Section 6 of the 1947 Act; or Sec-
tions 7 and 8 of the Central Act of 1950.
20. It may also be clarified here that as per the legal position ex-
plained in Dr. Rajendra Prakash Sharma's case (supra), when property is
never declared as an evacuee property by the custodian, then Section 46 of the
Administration of Evacuee Property Act, 1950 will not bar the jurisdiction of
the Civil Court to adjudicate upon the question, as to whether the property is
evacuee property or not.
21. As such, it is held that the Courts below did not lack the juris-
diction while adjudicating upon the issue in hand, as was contended by
learned counsel for the appellants.
22. In view of the afore-said legal and factual position as has been
discussed above, this Court does not find any infirmity in concurrent findings
arrived at by the Courts below. There is no merits in the appeal. As such, the
same is hereby dismissed.
01.04.2024 (DEEPAK GUPTA)
Vivek/Renu JUDGE
Whether speaking/reasoned? Yes
Whether reportable? No
10 of 10
