Raghubar Dayal, J. - (1.) Ibrahim and Khurshed, brothers, sons of Paneh Ali, Isak and Baggu, sons of Jawaye, owned Khasra No. 26, measuring 20 bighas, at village Alipore, Tehsil Hanumangarh. They migrated to Pakistan. The Assistant Custodian of Evacuee Property, Hanumangarh, issued notice under S. 7(1) of the Administration of Evacuee Property Act, 1950 (Act XXXI of 1950) hereinafter called the Act, to these persons and also to Hazari, son of Chuni and Magha, son of Kana, stating therein that Ibrahim and others had gone to Pakistan and that Hazari and Magha were in illegal possession of the land. They were all required to show cause why the land be not declared evacuee property. The notice was affixed at a conspicuous place in village Alipore. The notice could not be served on Hazari and Magha as they had died long before the issue of notice in 1955.
(2.) No objections were filed and on April 7, 1955 the Assistant Custodian declared Ibrahim, Khurshed, Isak and Baggu evacuees and the aforesaid property evacuee property. Bhanwar Lal, son of Hazari and Rati Ram, grandson of Magha, filed a petition under Art. 226 of the Constitution in the Rajasthan High Court for the quashing of the order dated April 7, 1955 and for restraining the Regional Settlement Commissioner, Jaipur, the Managing Officer of acquired Evacuee Property. Ganganagar, the Tehsildar, Hanumangarh, from interfering with their possession over the property declared to be evacuee property. They alleged that one Paneh Mohamed, father of Ibrahim and Khurshed, had mortgaged this property to Hazari and Magha in 1931, that the mortgagees had been in possession of the property, that they did not get any notice of the proceedings taken by the Assistant Custodian and were informed of his order in 1959 by their tenants in the land in suit when the allottees of the land were taking steps to recover possession. The writ petition was dismissed by the High Court which held that the issue of notice to Hazari and Magha was sufficient compliance with the requirements of sub-section (1) of S. 7 of the Act as the custodian had not to make any preliminary enquiry about the persons who might be interested in the property of the alleged evacuee. It is against this order that Bhanwar Lal and Rati Ram have filed this appeal by special leave.
(3.) Section 7(1) of the Act reads: "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 after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property." The Custodian can form his opinion about any property having become evacuee property on the basis of information available to him. It has been so held in Abdul Hakim Khan vs. Regional Settlement Commissioner, (1962) 1 SCR 531. He can issue notice to the persons interested also on the basis of information available to him. He is not expected to hold a general inquiry of the persons interested in the alleged evacuee property. In the present case it appears that the village records about the land in suit which is agricultural, recorded the names of Hazari and Magha as mortgages and that the Assistant Custodian could consider them to be the persons interested. He could have had no information whether these mortgagees who resided at some other place were alive or not. He complied with the requirements of sub-section (1) of S. 7 to give a notice to Hazari and Magha. The notice however was ineffective and not good as Hazari and Magha had died long before. The question then arises whether the further proceedings on the basis of this notice could affect the interests of the mortgagees.;