Decided on February 15,1965

Gulam Nizam Khan Appellant
Kabir Hasan Respondents


- (1.)JUDGEMENT This appeal arises out of a suit for permanent injunction restraining the first defendant Sri Kabir Hassan Khan from proceeding further with the execution proceedings in the execution case No. 213 of 1954 in respect of plot No. 218 measuring .56 acre and situate in village Kuberpur.
(2.)IT appears from the record that one Sri Sarwar Khan along with some other persons had a one-third share in plot No. 218. They mortgaged their share with Sri Kabir Hasan. On the basis of that mortgage Sri Kabir Hasan obtained a decree in suit No. 253 of 1919 on August 19, 1950. Sri Kabir Hasan applied for the execution of the decree which gave rise to the Execution Case No. 213 of 1954. It appears that he had asked for the sale of the one-third share mortgaged with him. The mortgagors had some cosharers in the said plot. Some of those cosharers had migrated to Pakistan and their interest vested in the Custodian as would appear from the order of the Assistant Custodian, dated July 19, 1955. It also appears from the order that Sri Ghulam Hazoor Khan and Sri Nizam Uddin Khan sons of Sri Ghaus Mohammad Khan resident of Diha were declared evacuees and their property mentioned in the notice was declared to be revacuee property. From the record of his case it further appears that during the pendency of the execution proceedings the present plaintiff Sri Ghulam Nizam Khan instituted a suit along with four others claiming that he was the sirdar of the plot in suit and that the Execution Case No. 213 of 1954 could not proceed against plot No. 218 which he held as a Sirdar. That suit was dismissed, as is clear from the decree dated May 20, 1959.
While the said execution case was pending, it appears that, as the said plot was held by persons some of whom were evacuees and the others non evacuees, the matter was referred to the Competent Officer, Agra Zone. Agra, under the provisions of the Evacuee Interest (Separation) Act, 1951. Before the Competent Officer one Sri Mushtaq Ahmad Khan claimed 1/19th share and Sri Gulam Nizam Khan, the plaintiff, claimed one-third share in the said plot. The custodian on behalf of the evacuees claimed one-fourth share. The Competent Officer gave 1/19th share to Sri Mushtaq Ahmad Khan, 1/3rd share to Sri Ghulam Nizam Khan, and curiously enough the rest 35/57th share to the Custodian. It does not appear from the record that notice under Section 6 of the Evacuee Interest (Separation) Act was issued or the relevant notification had been published. The fact that the aforesaid claimants and the Custodian were together claiming less than the whole plot should have suggested to the Competent Officer that there might be some more interested parties. He did not, however, make an effort to find them out and to give them notice of the proceedings. It is pertinent to notice at this stage that although Sri Ghulam Nizam Khan was aware that Sri Sarwar Khan and others were the cosharers of one-third share in the plot which was sought to be sold in the execution case and was a party to the proceedings, he also did not inform the Competent Officer to that effect. In the result neither Sri Sarwar Khan and others nor their mortgagee Sri Kabir Hasan were given notice of the proceedings by the Competent Officer.

(3.)IT appears from the certificate of sale that after the decision of the Competent Officer the plot was sold for Rs. 325 in favour of Sri Ghulam Nizam Khan, the plaintiff appellant in this case. Having obtained the sale certificate dated September 17, 1957 from the court of the Competent Officer (if at all he can be called a court) the plaintiff appellant Sri Ghulam Nizam Khan wanted to amend the plaint of suit No. 8 of 1957, which he had filed for a declaration of the Sirdari right in the plot to the effect that he had become a Bhumidhar thereof in pursuance of the sale certificate dated September 17, 1957. The amendment was disallowed and ultimately the suit was dismissed as already stated on May 20, 1959. After the dismissal of that suit the present suit (Suit No. 159 of 1959 Sri Ghulam Nizam Khan v. Sri Kabir Hasan and others) was instituted on August 3, 1959. I have earlier mentioned the relief claimed in the suit. In the present suit the plaintiff founded his claim on the sale of the plot in his favour by the Competent Officer.

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