Poonam Srivastava, J. - (1.) -Heard Sri Namwar Singh, learned counsel for the petitioners and Sri Bajrangi Misra, learned counsel appearing for the contesting respondent Nos. 5/1 to 5/4.
(2.) THE dispute relates to plot Nos. 169 and 170 of the Khata No. 22Aa and also plot No. 63 of Khata No. 22Ba of village Noorpur Mahul, Tehsil Phulpur, district Azamgarh. Certain relevant facts pointed out by the counsel for the petitioners is that disputed plots belonged to one Ahmad Hassan and Achhaibar. Ahmad Hassan was a tenant of the sir, who is said to have migrated to Pakistan. Consequent to his migration, his property was declared as evacuee property. One Moinuddin purchased plots from the custodian under the sale certificate dated 23.2.1960, which is brought on record alongwith supplementary rejoinder-affidavit. Subsequently, Moinuddin aforesaid executed a sale deed of plot Nos. 169 and 170 in favour of Mahboob respondent No. 5 vide sale deed dated 9.4.1962 and also transferred plot No. 63 in favour of his wife Smt. Habisulnisha respondent No. 4 by means of the sale deed dated 31.8.1971. It is submitted on behalf of the petitioners that they were not aware about the revenue entries on the basis of sale deed, they continued in undisturbed possession all through. Another fact pointed out by the counsel for the petitioners is that Moinuddin instituted a Suit No. 990 of 1961 under Sections 229B and 209, U.P.Z.A. and L.R. Act against father of the petitioners Achhaibar claiming bhoomidhari rights of plot Nos. 96, 352Aa, 352Ba as well as plot Nos. 169, 170 and 63, which are plots in dispute. THE pleadings in the aforesaid suit was to the effect that after migration of Ahmad Hassan, sir land became bhoomidhari after enforcement of U. P. Act No. 1 of 1950. THE plaintiff Moinuddin also claimed to be bhoomidhar on the basis of sale certificate issued by the custodian in his favour. This suit was decided in terms of compromise. Claim of Moinuddin was upheld in respect of plot Nos. 96, 352Aa and 352Ba meaning thereby the compromise was not in respect of disputed plot. When the village was notified under the provisions of Consolidation and Holdings Act (hereinafter referred to as the Act), plot No. 63 was recorded in the name of respondent No. 4 and plot Nos. 169 and 170 in favour of the respondent No. 5 as bhoomidhar. Two objections were preferred under Section 9A (2) by the petitioners in respect of plots Nos. 169, 170 and 63 challenging the entries in favour of the respondent Nos. 4 and 5. It was contended on behalf of the petitioners that the plots stood recorded in the name of their father in 1359 fasli. The Consolidation Officer vide order dated 22.9.1978, allowed objections of the petitioners and directed the name of the respondent Nos. 4 and 5 be expunged. Two appeals were filed against the order of Consolidation Officer, one by the respondent No. 4 and other by respondent No. 5. Both the appeals were decided by the common order dated 24.10.1979. The order of Consolidation Officer was set aside and the entries in favour of respondent Nos. 4 and 5 were restored. The petitioners filed two revisions under Section 48 of the Act, which were dismissed on 18.4.1981. The order of the S.O.C. and D.D.C. are impugned in the instant writ petition. Submission on behalf of the petitioners are manifolds. Sri Namwar Singh, advocate, has emphasized that since there was no proper declaration under Section 7 of Administration of Evacuee Property Act and, therefore, until the property is published in the official Gazette under Section 7 (3), the disputed plots could not be held to be an evacuee property. Consequently, the custodian could not have any right whatsoever. Consequent sale deed by the custodian in favour of Moinuddin aforesaid should be treated as naught. The declaration could only be made after giving notice, which admittedly was not done in the instant case. The petitioners filed extract of list of evacuee property maintained by the custodian. It has been pointed out that the disputed plots are conspicuously absent in the said list. Reliance has been placed on a number of decisions, Dr. Rajendra Prakash Sharma v. Gyan Chandra and others, AIR 1980 SC 1206 ; Dr. Jafar Ali Shah and others v. Assistant Custodian of Evacuee Property, Jhansi and others, AIR 1967 SC 106. On the basis of aforesaid decisions, it is argued that the disputed plots were admittedly sir pots of Ahmad Hassan, who was a proprietor intermediary. On the advent of Section 4 of U. P. Act No. 1 of 1950, the entire rights, title and interest of Zamindar vested in the State of U. P. It is emphasized by the counsel that even though it is concluded that after migration of Ahmad Hassan, the property came within domain of the custodian, the custodian held the property on behalf of the intermediary but on the date of vesting the property vested in the State. In the circumstances, the custodian had no right whatsoever to execute sale deed in the year 1962.
(3.) SECOND submission on behalf of the petitioners is that the alleged sale certificate executed by the custodian cannot be given any weight-age for want of previous approval of Custodian General under the proviso of Section 10 (2) (o) of Evacuee Property Act. Besides, there is no reference that the said sale deed was registered under Indian Registration Act or was granted any exemption from Registration. In the circumstances, no right or title could pass in favour of the respondent Nos. 4 and 5 for want of registration and the said sale deed could not be acted upon as it was a document, which was void and ab initio. No objection could be raised by the petitioners before the S.O.C. regarding rights of custodian on both Courts, either the property being evacuee property or possession of the said property on the advent of U.P.Z.A. and L.R. Act, since the Consolidation Officer allowed objections of the petitioners and appeal was preferred by the contesting respondents. In support of aforesaid contentions, learned counsel for the petitioners has placed reliance on the decisions of the Apex Court in Chunni Lal and others v. Chief Settlement Commissioner and others, 1970 AWR 191 ; Sardhana Cooperative Farming Society v. Custodian General, Evacuee Property Mussoorie, U. P. and others. Third submission on behalf of the petitioners is that certified copy of the register of Evacuee Property maintained by the custodian was brought on record, which was not considered by the consolidation authorities while rejecting the objections of the petitioners in appeal and revision. Compliance of the procedure of law as provided under Section 7 of Evacuee Property Act was not made and also that sir land could not be sold by the custodian in the manner, which has been done in the instant case. No notice or opportunity was afforded to the petitioners before the property was declared evacuee property. Admittedly, Ahmad Hassan is said to have migrated to Pakistan, whereas Achhaibar father of the petitioners still continued to live in the country. The suit filed by Moinuddin ended into compromise only with a view to get a declaration of the illegal entries before the custodian. Schedule 5 of U.P.Z.A. and L.R. Act will not apply because property was never declared evacuee property (hereinafter referred to as the property). Therefore, the custodian had no dominion over the property on the advent of the Act No. 1 of 1950. The consolidation authorities came to a conclusion that it was nobody's case that the petitioners had not complied with the requirement of law and there was no pleading to the effect. Therefore, it was burden of the petitioners to have established. Two consolidation authorities completely lost sight of the fact that the petitioners were in continuous possession over the disputed land. Learned counsel for the respondents had emphatically disputed arguments advanced on behalf of the petitioners. Since father of the petitioners neither filed any objection under the Evacuee Property Act nor any proceedings under Section 26, Schedule 5 of U.P.Z.A. and L.R. Act, therefore, declaration of the plots as evacuee property became final and rights of the petitioners stood extinguished. The compromise was never challenged at any stage. State of U. P. and Gaon Sabha was also party in the suit initiated by Moinuddin but neither State nor Gaon Sabha raised any objection. Achhaibar father of the petitioners filed two written statements and, therefore, claim of the petitioners was rightly rejected by the S.O.C. and D.D.C. Both the authorities have recorded categorical finding that the plots in dispute belonged to Ahmad Hassan, who migrated to Pakistan, therefore, orders of the Deputy Director of Consolidation and S.O.C. are just legal and cannot be set aside in writ jurisdiction. The rights of the petitioners have extinguished after the disputed land came under the dominion of custodian and Ahmad Hassan migrated to Pakistan.;