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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-                             215 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 216 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 218 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