D.S. Mathur, J. - (1.) THIS is a Special Appeal by Ashiq Husain. peti tioner, against the order of a learned single Judge partly allowing and partly dismissing the writ petition moved by him and by Smt. Hanifa Bibi. respon dent No. 4.
(2.) THE material facts of the case are that one Yadan was a resident of Uttar Pradesh having a house in Mohalla Aliganj of the town of Tanda in district Faizabad but had shifted to Kamtee in Madhya Pradesh in 1940 and migrated to Pakistan in or before 1949. The appel lant Ashiq Husain. purchased the house from Yadan in 1960 (sic). It was after a few years that the Custodian gave notice to petitioner No. 1 under S. 8 (4) of the Administration of Evacuee Pro perty Act (Act XXXI of 1950) to show cause why damages be not recovered from him for being in unauthorised pos session of the abovementioned house which was an evacuee property and had vested in him. The notice is dated 5-11-1956. The learned single Judge was of opinion that clause (i) of Section 2 (c) of U. P. Ordinance I of 1949 did not apply to Yadan and the mere fact that he had migrated to Pakistan could not show that he was residing in Pakistan. It was in these circumstances that the revision was remanded for fresh hear ing, keeping the observations made in the writ petition in mind. In substance, therefore, if Yadan was a resident of Pakistan the property was evacuee pro perty and the action taken by the Custodian was proper.
(3.) THE first Ordinance to be pass ed in respect of evacuee property mate rial for the decision of this case, is U. P. Ordinance No. I of 1949. Section 2 (c) defined 'evacuee'. The definition of 'eva cuee property' contained in Section 2 (d) of the Ordinance flows from the term 'evacuee'. As laid down in clauses (i) -and (ii) of Section 2 (c) of this Ordinance; "evacuee" means any person: "(i) who. on account of the .setting up of the Dominions of India and Pakis tan or on account of civil disturbances or the fear of such disturbances, leaves or has on or after the 1st day of March, 1947 left any place in the United Pro vinces for any place outside the territo ries now forming part of India, or (ii) who is resident in any place now forming part of Pakistan and is for that reason unable to occupy, supervise or manage in person his property in the United Provinces or whose property in the Province has ceased to be occupied, supervised or managed by any person, or is being occupied, supervised or managed by an unauthorised person." ;