Satish Chandra, J. - (1.) This writ petition is directed against the judgment of the Board of Revenue dismissing a suit under Section 180 of the U.P. Tenancy Act, filed by the petitioner for the ejectment of Pyare Khan, respondent No. 4.
(2.) The dispute relates to plot No. 370-A, area 1 bigha 13 biswas, in village Maulanagar, situate with the limits of the Bareilly Municipality. It appears that on 20th April, 1952, the Assistant Special Manager, Court of Wards, of the estate of Rani Mahalaxmi Bai, Bareilly, executed a patta of the disputed plot in favour of the petitioner. It appears that the Evacuee Department were of the opinion that Rafiq Ahmad and Shafiq Ahmad were in possession of this plot for more than three years. They became hereditary tenants under Section 180 (2) of the U. P. Tenancy Act. These persons migrated to Pakistan. The plot became evacuee property. It was subsequently treated as having been acquired under Section 12 of the Displaced Perms (Compensation and Rehabilitation) let, 1954. Acting under Section 20 of the Act of 1954, the Managing Officer put up this plot for auction on 1st June, 1956. Pyare Khan, respondent No. 4, was declared to be the highest bidder. When the petitioner came to know of these proceedings, filed an objection before the Assistant Custodian under Section 7 of the Administration of Evacuee Property Act. He claimed that he was the tenant of the plot. The alleged evacuees had no interest in it. The Assistant Custodian dismissed the objection on 29th November, 1956. The petitioner went up in appeal. The Deputy Custodian, Lucknow, on 20th February, 1958, set aside the order and remanded the case for decision again. The Assistant Custodian again rejected the petitioners objection on 12th August, 1959. The petitioner went up in appeal. The Deputy Custodian, Lucknow, by his order dated 24th August, 1960, allowed the appeal. He held that the alleged evacuees had no right or interest in the land in dispute. The property was not an evacuee property and could not vest in the Custodian under U. P. Ordinance No. 1 of 1949. He directed that plot No. 370-A (area 1 bigha 13 biswas) be released as non-evacuee property.
(3.) During the pendency of this appeal the petitioner, on 10th September, 1959, moved the Assistant Custodian, Bareilly, for staying further proceedings. The Assistant Custodian granted to the petitioner ten days time to bring a stay order from the appellate court. The appellate court granted a stay order on 17th September, 1959, a copy of which was filed by the petitioner before the Assistant Custodian on 18th September, 1959. That very day the Assistant Custodian gave possession of the plot to Pyare Khan, respondent No. 4.;