Case Note & Summary
The litigation originated in a suit for permanent injunction filed by Hafiz Washi Ahmad seeking to restrain Kutubuddin and others from interfering with his possession and enjoyment of a portion of property bearing plot No. 1323 and the structure standing thereon. The appellant claimed that although plot No. 1499 under Khata No. 246 in Touzi No. 3274 was declared as evacuee property, the house in respect of which he claimed was situated in a part of Khata No. 263 in the same plot and touzi, and belonged to him exclusively. The dispute centered on whether the property in question—a portion of plot No. 1499 under Khata No. 263—was evacuee property that vested in the Custodian of Evacuee Property or was the appellant's exclusive property based on an alleged gift. The learned Munsif had taken the view that this question required adjudication at trial and rejected the respondents' objection that the suit was not maintainable. However, in revision, the High Court of Patna held that by operation of Sections 28 and 46 of the Administration of Evacuee Property Act, 1950, the lands and buildings stood vested in the Custodian and consequently the suit was not maintainable. The appellant then appealed to the Supreme Court by special leave. Before grant of leave, counsel clarified that the house or structure on plot No. 1499 was only a portion and there was no claim that plot No. 1323 or any structure thereon was evacuee property. The Supreme Court granted leave limited to the question of dispossession in respect of plot No. 1499. The Supreme Court observed that the appellant had claimed exclusive title to the disputed property, and therefore the court was required to determine whether the land was part of the evacuee property that vested in the Custodian or was the appellant's exclusive property on the basis of the alleged gift. This was a question of fact to be adjudicated at trial before considering whether the land vested in the Custodian. The Court held that if the trial court finds that the suit property is evacuee property, it necessarily stands vested in the Custodian and the civil suit is not maintainable. On the other hand, if the finding is that it is not part of the evacuee property, the injunction as claimed would have to be considered. All these facts required investigation at trial. The Supreme Court concluded that the trial court was right in its direction. Accordingly, the appeal was allowed, the order of the High Court was set aside, and the order of the trial court was confirmed. The Court made it clear that no opinion was expressed on the merits of the case and the issue remained at large. The matter was remitted to the trial court, which was directed to dispose of the suit within six months from the date of receipt of the order, given that the suit had been pending for over two decades. No order as to costs.
Headnote
A) Evacuee Property - Vesting and Maintainability - Sections 28 and 46 of Administration of Evacuee Property Act, 1950 - The appellant claimed exclusive title to a portion of property which the respondents contended was evacuee property vested in the Custodian; the High Court dismissed the suit as not maintainable based on statutory vesting; the Supreme Court held that the question whether the property is evacuee property and thus vested in the Custodian is a factual issue to be determined at trial before deciding maintainability; if found to be evacuee property, the civil suit is not maintainable, but if found to be the appellant's exclusive property, the injunction may be granted - Held that the trial court's direction for trial was correct and the High Court's order was set aside.
Issue of Consideration
Whether the suit property, a portion of plot No. 1499 under Khata No. 263, is evacuee property vested in the Custodian of Evacuee Property under Sections 28 and 46 of the Administration of Evacuee Property Act, 1950, thereby rendering the civil suit for injunction not maintainable, or whether it is the appellant's exclusive property based on an alleged gift, requiring trial adjudication.
Final Decision
Appeal allowed; High Court's order set aside; Trial Court's order confirmed; Matter remitted to trial Court; Trial Court directed to dispose of suit within six months from date of receipt of order; No costs.
Law Points
- Question whether property is evacuee property and vested in Custodian under Sections 28 and 46 of Administration of Evacuee Property Act
- 1950 is a question of fact requiring trial
- Civil suit not maintainable if property is evacuee property
- Civil suit maintainable if property is exclusive property of claimant
- High Court erred in summarily dismissing suit without factual adjudication
