K.M.Dayal, J. - (1.) The present appeal has been filed by the plaintiff. The plaintiff filed the suit claiming the plot No. 2537 area 2 Bighas was in the Zamindari of one Akhmal Khan. He migrated to Pakistan. In the meantime the plot was divided into two portions: one portion measuring 15 Biswa was shown as cultivated land and the remaining area was recorded as grove.
(2.) This area 15 Biswa was recorded as Khudkast of the Zamindar Mohammad Akhmal Khan. After he migrated to Pakistan the Custodian Evacuee Property started proceeding and thereupon the plaintiff filed suit under section 59 of the U. P. Tenancy Act for a declaration that he was a hereditary tenant of the 15 Biswa area. That suit was decreed in his favour. The suit was filed . against the Custodian as well as the Evacuee. Consequently the Custodian Evacuee Property moved an application for setting aside the ex parte decree and the litigation ended there. The decree dated 25-3-1952 under Section 59 of the U. P. Tenancy Act became final in favour of the plaintiff. Subsequently, in the year 1953 the Assistant Custodian Evacuee Property started proceedings against the plaintiff. Objections were filed by them, and the Custodian rejected the objection holding that the plaintiffs father had no right and he was in unauthorised occupation thereof. The matter was taken up in revision to the Custodian General and it was dismissed on 27-6-1958. A writ petition was filed before the Punjab High Court which was also dismissed on 9-3-1964.
(3.) On 28-6-1965 Managing Officer Meerut Division issued notice to the plaintiff under Section 19 of the Displaced Persons (Compensation and Re- habilitation) Act, 1954. The plaintiff thereupon served a notice under Section 80, C. P. C. on the defendants and : filed the instant suit. The suit has been dismissed by both the courts below holding that the decree dated 25-3-1952 under Section 59 of the U. P. Tenancy Act was not binding on the Custodian and was without jurisdiction. The lower appellate court was not justified in ignoring the case reported in 1965 All WR (HC) 385 : (1965 All LJ 563), Achchu Khan v. Assistant Custodian . In that suit it was held that any decree under Section 59 of the U.P. Tenancy Act was not barred and was binding on the Custodian. That judgment could not be brushed aside by the court below lightly. It was certainly binding on it and the court below was not right in trying to sit in judgment over it.;