- (1.) 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 in dispute and may be briefly narrated.
(2.) On November 15, 1946 the appellant claimed to have purchased certain patta lands from one Abdul Aziz Khan and paid him Rs. 6127-8-0 in Osmania Sicca. The appellant got possession of the land and thereafter in June 1949 Abdul Aziz Khan applied in the Tehsil 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 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 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.
(3.) 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 engatived by the High Court. In consequence the High Court dismissed the suit but direct the parties to bear their own costs. The appellant then obtained a certificate from the High Court of appeal to this Court, and that is how the matter has come up before us.;