Beg, J. - (1.) This appeal has been filed by the Assistant Custodian of Evacuee Property, Agra, and the Assistant Custodian (Judicial) Agra Circle, Agra. Respondent No. 1 in this appeal is one Sharf Uddin.
(2.) The dispute between the parties relates to house No. 2429 called Firdos Manzil situate in Sabon Katra in the district of Agra. This house was purchased by one Srimati Sarfarazi Begum for consideration of Rs. 6700 in the year 1945 from one. Rahim Bux, the father -in -law of Sharf Uddin Respondent No. 1. The writ Petition was filed in this Court by Sharf Uddin Respondent No. 1 on the allegation that he was the real owner of the house and exercised all rights of ownership on the date of the purchase. He further alleged that his wife Smt. Sarfarazi Begum had gone away to Pakistan in July 1948 for the treatment of her daughter, and that she could not come back to India thereafter. His case was that since the date of purchase, he had throughout been in possession of the property in dispute. The Petitioner further alleged that on 18 -4 -51 he had received a notice from the Assistant Custodian asking him to pay rent. On 4 -5 -51 he had filed objections to this notice denying his liability to pay rent on the ground that he was the exclusive owner of the property in question that he was throughout in possession of the same in his own rights and that the sale deed in the name of his wife was merely benami. After the aforesaid objections by him in 1951, the proceedings for recovery of rent against him were dropped. Five years after that, however, he again received a notice dated 13 -10 -55 from the Assistant Custodian Evacuee Property, Agra, calling upon him to appear before him and to pay a sum of Rs, 2047 80, failing which the said amount was to be realised as arrears of land revenue. The amount was claimed at the rate of Rs. 21 per month on account of rent for the period beginning from 15 -8 -47 and ending on 30 -9 -55. The Petitioner further alleged that he was called upon to appear before the Assistant Custodian Evacuee Property, Agra on 10 -11 -55 to pay the aforesaid amount as the rent of house No. 2429 and as he did not pay the aforesaid amount on the said date, the said amount was being realised from him as arrears of land revenue Under Sec. 48 of the Administration of Evacuee Property Act, 1950. The Petitioner's case was that the Asstt. Custodian had no power whatsoever to realise the aforesaid sum from him as an arrear of land revenue.
(3.) The petition came up for hearing before a learned Judge of this Court. The learned Judge allowed the petition, quashed the notice dated 13 -10 -55, and issued a writ of mandamus directing the opposite party not to realise the amount mentioned in the notice as arrears of land revenue. This special appeal is directed against the said order of the learned Judge dated 5 -10 -1956.;