S.N.Singh, J. - (1.) THIS petition under Article 26 of the Constitution is directed against an order of the Assistant Custodian General, U. P. dated 7-11-1963 with ; the prayer that the said order Annexure '6' to the writ petition be quashed.
(2.) BRIEF facts giving rise to the present petition are that one Tafazzul Hussain execut ed a mortgage on 15th December 1947, in respect of house No. 474 situate in mohalla Keraiganj Rajvan Bazar, Meerut City in favour of the petitioner for a consideration of Rs. 1.000. This Tafazzul Husain migrat ed to Pakistan in July 1949. The petitioner thereafter moved an application on 17th December J949 under Section 38 of Ordi nance No. 27 of 1949 before the Deputy Custodian, Evacuee Property, Meerut, for the confirmation of the aforesaid mortgage. The Deputy Custodian by his order dated 5th March 1951 allowed the application of the petitioner and confirmed the mortgage deed. It appears that later on it was brought to the notice of the Evacuee Depart ment that Tafazzul Husain had no title in the house mortgaged which really belonged to Smt. Mahboobul Nissa, wife of Tafazzul Hussain. The Assistant Custodian, Meerut' sent a notice dated 4th October, 1962, to the petitioner to show cause why necessary action to set aside the confirmation dated 5th March, 1951, be not taken. The petitioner filed an objection to the aforesaid notice and con tended that the order dated 5th March, 1951, had become final and could not be legally set aside. The petitioner thereafter was directed to appear before the Opposite Party No. 1, the Assistant Custodian General, Eva cuee Property, U. P., Lucknow. Before the Opposite Party No. 1 evidence was led on behalf of the petitioner as well as the De partment. The case of the Department was that although, the house in dispute originally belonged to Tafazzul Hussain, Tafazzul Husain had sold the house to Smt. Mah boobul Nisa by registered sale deed dated 20th March, 1947, as such she had become the owner of the house and in proof thereof the Department produced a registered sale deed of the same date and it was contended that Tafazzul Husain not being the owner of the house in dispute the mortgage dated 15th December, 1947, executed by him in favour of the petitioner Smt. Roori Devi was null and void and was wrongly confirmed by the order dated 5th March, 1951. The peti tioner's case was that the sale deed dated 20th March, 1947, was a fictitious document and was never given effect to and the con firmation order dated 5th March, 1951, taving become final could not be-reopened.
(3.) ON a consideration of the case" of the parties and the evidence on the record the Opposite Party No. 1 came to the conclu sion that the property in dispute belonged to Smt. Mahboobul Nisa which became evacuee property after her migration to Pakistan in February 1948 and the same vested in the Custodian. It was further held that Tafazzul Husain had no title to the property on the date of the mortgage and the revisional power under Section ' 27 of the Administra tion of Evacuee Property Act, Act No. 31 of 1950 being very wide it was competent to the Opposite Party No. 1 to set aside the order of confirmation even though that order was an- appealable one. Accordingly the Opposite Party No. 1 exercising its power of revision under Section 27 of Act No. 31 of 1950 by his order dated 7th November, 1963 (Annexure '6' on the record) set aside the order dated 5th March, 1951, passed by the Deputy Custodian, Meerut confirming the mortgage and directed the Assistant Cus todian to recover compensation from the petitioner for use and occupation of the house in dispute 'and then to dispose of the property in accordance with law,;