Decided on January 28,1957



- (1.) MUBARAK Hussain of village Ratheri in the Dist, of Muzaffanagar, U. P. , lias filed this petition under Article 226 of the Constitution for the Issue of a writ of certlorari or any other writ quashing the order of the Custodian-General dated the 12-5-1952 and for issue of a writ of mandamus prohibiting the Custodian-Department from interfering with the possession of the petitioner over the land in dispute. This petition arises in these circumstances : on the 26-7-1944 the petitioner created a per manent lease Jointly in favour of his two sons mohammad Naseem and Mohammad Waseem who were at that time studying in the Muslim univer sity at Aligarh. The possession in fact remained with the father. On the 27-7-1949, mohammad Naseem executed a deed of surrender whereby he surrendered his rights in the permanent lease created In 1944, in favour of his father and in accordance with this surrender entries were made in the revenue records and the father was shown as the owner of the property. A few months later, i. e. on the 10-1-1950 Moha-mmad Waseem also surrendered his rights to his father and this surrender was also recorded in the revenue records. Mohammad Naseem migrated to Pakistan and soon after, the Assistant Custodian. Muzaffarnagar, started proceedings under Section 7 (1) of the Administration of Evacuee Property Act, Act 31 of 1950, by affixing a notice on the last known place of residence of Mohammad Naseem and on the 12-11-1950 he passed an ex parte order declaring the rights of Mohammad Naseem in the land in dispute to be evacuee property. In this order it is held that the relinquishment deed by the evacuee at the time of his departure to Pakistan in favour of his father is not bona fide and genuine and therefore it confers no rights on his father. On the 16-11-1950 the Custodian demanded surrender of possession of the share of Mohammad naseem from his father Mubarak Hussain under Section 8 (4) of the Act. Mubarak Hussain filed objections on various grounds. He urged that he being an interested party should have been served in the proceedings under Section 7 of the Evacuee Act. He further urged that after mohammad Naseem had relinquished his rights in favour of the objector no rights were left in him and therefore the Property in dispute could not be considered to be evacuee property nor could the Custodian Department demand possession of it. The Assistant Custodian held that the surrender amounted to transfer within the Evacuee Act and as it had not been confirmed under Section 40 of the Act the surrender was not effective. The assistant Custodian further held that the order under Section 7 cannot be reviewed and if mubarak Hussain has any grievance against that order then he should file an appeal as provided under the Act. Mubarak Hussain being dissatisfied with that order filed a revision before the Custodian who dismissed the revision petition affirming the finding of the Assistant Custodian to the effect that the surrender. amounted to transfer and required confirmation. He, however, held that the custodian could not demand actual possession of the share of Mohammad Naseem unless and until the property of Mohammad Naseem was separated. Mubarak Hussain then filed a revision petition before the Custodian-General. The Custodian-General came to the conclusion that this surrender did not amount to transfer. He, however, held that the surrender by a co-tenant having joint interest with another tenant is not valid. The operative portion of his judgment reads: "where several persons have a joint interest in a certain property and one of them decides to release his interest in that property his act, unless consented to by the others, cannot be binding upon them and the law does not recognise the individual surrender by various tenants. The learned counsel for the petitioner urges that in this case it should be held that when Mohammad naseem made the surrender, he had the consent or acquiescence of his brother Mohammad waseem as he also surrendered his rights six months after. To me it appears to be a case of two individual surrenders on two different occasions and there is nothing whatsoever in the act of either of them to show that the other had consented or acquiesced in it. In the circumstances, there is no escape from the conclusion that the surrender by Mohammad Naseem in favour of his father the petitioner, was inoperative in law. " on this finding the revision petition was dismissed and it is this order that !s being challenged by this writ petition.
(2.) AS this petition was filed in this Court on the 16-1-1956, it is necessary to give a few facts, which the petitioner has alleged, to explain the delay. The Custodian-General's order was passed on the 12-5-1952 and the petitioner on the 14-7-1952 applied under Article 226 of the constitution to the High Court at Allahabad. This application was rejected by that High Court on or about the 23-3-1955 on the ground that that Court had no jurisdiction to set aside an order passed by the Custodian-General of India. The petitioner then filed an application for special leave to appeal under Article 136 of the Constitution on the expiry of three months, the Supreme court dismissed this as barred by time. On the 6-4-1955 the petitioner also filed a writ petition under Article 32 in the Supreme Court and this was dismissed on the 16-12-1955, Within a month of the dismissal by the Supreme Court the present writ petition was filed in this Court. In these circumstances, I have no hesitation in holding that the petitioner has explained the delay in filing the petition in this Court satis-factorily and indeed the learned counsel for the respondent has hot argued that the petition is too stale to be entertained now.
(3.) IT has been argued by the learned counsel for the petitioner that the property now in dispute was not an evacuee property and that the order that was passed by the Assistant Custodian on the 12-11-1950, was not a valid order. The petitioner has alleged in the present petition that ha was not served with a notice although the Assistant Custodian was aware that he was a person interested. It appears to me, however; that this order under Section 7 can be set aside only if mubarak Hussain can satisfactorily show that he was the owner of the property in dispute and that his son Mohammad Naseem had no interest therein. This is the very same objection which had been raised! under Section 8 (4) of the Act. I pointed out in the course of arguments that when the petitioner's application for setting aside the order under Section 7 of the Act was dismissed, he had a right to file an appeal under Section 24 of the Act and when he had not availed of this opportunity he had no right to agitate this matter in these proceedings. The learned counsel for the Petitioner, however, urged that in fact an appeal was filed but in view of the fact that the same question was involved in those objections as well as in the objections to the order of the Assistant Custodian under Section 8 (4)of the Act, it was of no conseauence whether this matter was decided in the order under Section 8 (4) or in the application for review of the Order under Section 7. I am also of the opinion that this is a matter of form only because the substance of the dispute was before the Custodian Department in all these proceedings. The learned counsel for the respondent Shri Porus Mehta conceded before me that In the proceedings under Section 8 (4) of the Act the validity of the order under Section 7 could be gone into. I therefore proceed to decide this matter on the merits.;

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