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PETITIONER: HAFIZ WASHI AHMAD

       Vs.

RESPONDENT: KUTUBUDDIN & ORS.

DATE OF JUDGMENT:       24/09/1996

BENCH: K. RAMASWAMY, K. VANKATASWAMI, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the  High Court of Patna made on November 7, 1974 in C.R. No. 300/74.  The appellant  filed the  suit  for  injunction restraining  the  respondents  from  interdicting  with  his possession and enjoyment of portion of  the property bearing plot No.  1323  and  the  structure  standing  thereon.  The appellant claimed that though the plot No. 1499 bounded with Khata No.  246 in  Touzi No.  3274 was  declared as  evacuee property, the  house  in  respect  of  which  the  appellant claimed is  situated in  a part of Khata No. 263 in Plot No. 1499 and  the same Touzi number, belongs to him. The learned Munsif had  taken the  view that  it is  required to have an adjudication at  the trial  of the suit whether the property bearing Khata  No. 263,  though situated in Plot No. 1499 of the same  Touzi No.  3274 was  his exclusive property or was not vested  in the  custodian of  the evacuee  property. The objection raised  by the  respondents was  rejected. In  the revision,  the  High  Court  has  taken  the  view  that  by operation of Sections 28 and 46 of the Administration of the Evacuee Property  Act,   1950, the  lands and  the buildings stood vested  in the  custodian of the evacuee Property Act, 1950, the  lands and  the  buildings  stood  vested  in  the custodian of  the evacuee  property and, therefore, the suit is not  maintainable. When the matter had come up this Court before grant  of leave,  the counsel  were herd  and it  was stated that the house or structure on plot No. 1499 was only a portion  and there  was no  claim that    it  was  evacuee property  in  respect  portion  of  plot  No.  1323  or  any structure  thereon.  Therefore,  this  Court  granted  leave concerning the question  of dispossession in respect of Plot No. 1499.      In view  of the  fact that  the appellant  has  claimed exclusive title  in respect  of the property in dispute, the Court is  required to go into the question whether or not it is the  part of  the land  which  was  declared  as  evacuee property and  stood vested  in the  custodian of the evacuee property or  is appellant’s  exclusive property on the basis of  the  alleged  gift  said  to  have  been  given  to  the appellant. This  is a  question of fact to be adjudicated at

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the trial  of the  suit before  considering whether the land vested in  the custodian  of the  evacuee property.  If  the learned District Munsif would find that the suit property is the evacuee  property necessarily  if stands  vested in  the custodian of the evacuee property and thereby the civil suit is not maintainable. On the other hand, if the finding would be that  it is not part of the evacuee property, necessarily the injunction as claimed to be considered whether or not be granted. All facts require to be investigated at the trial.      We  think  that  the  trial  Court  was  right  in  its direction. The  appeal is  accordingly allowed. The order of the High  Court stands set aside and that of the trial Court stands  confirmed.  It  is  made  clear  that  we  have  not expressed any opinion on merits. The issued is at large. The matter is  remitted to  the trial  Court.  As  the  suit  is pending for over two decades, the trial Court is directed to dispose of  the suit  within a period of six months from the date of the receipt of this order. No costs.