K.KANNAN, J. - (1.) THE petitioners challenge the order passed by the Custodian General dismissing a petition filed in revision against the alleged allotment of the petitioners' properties to private respondents. The petitioners' contention was that the property that had been allotted under the Administration of Evacuee Property Act, 1950 (for short, 'the Act') and the Rules, had never vested with the Custodian in order to make possible for him to make allotment. The property, according to them, were held by the predecessors and allowed for some persons to be occupancy tenants. They had abandoned the property much before the partition of the country and the property had come back into possession of the petitioners' father himself. No notice of allotment to the petitioners before such allotment was effected in favour of the private respondents. According to the petitioners, they came to know about the alleged allotment only when the private respondents sought to disturb their possession claiming under allotment order from the Custodian.
(2.) THE petitioners had filed a civil suit for declaration against the allottees as well as the Custodian. The suit was dismissed and the appeal was also dismissed not on the merits but on a finding that the civil court jurisdiction had been ousted by the provisions of the Administration of Evacuee Property Act, 1950. The petitioners, therefore, wanted the allotment cancelled by claiming that it was not evacuee property, which could have been allotted to the private respondents. This revision had been dismissed by the Custodian General holding that the petitioners had not been able to show that the property belonged to father and the property could not have vested in the State. The learned counsel refers me to Section 7(1) and 7(1-A) of the Act to say the procedure for notification of evacuee property, which is as follow: "7. Notification of Evacuee Property.- (1) Where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property." According to him, there could not be an evacuee property as such without a notification. The evacuee property itself is defined under Section 2(f) and it has to be understood in the context of the definition of 'evacuee' himself, which is defined under Section 2(b) of the Act. If these sections are read together, it would mean that it has to be a property, which was held by an evacuee either as an owner or a trustee or as a beneficiary or as a tenant or in any other capacity, who after 1st Mach, 1947 left the place to outside territories now forming part of India. It is crucial, therefore, in this case to prove that the property had been held in the hands of an occupancy tenant as on 1st day of March, 1947 and left or abandoned after that date, to be characterized as an evacuee property.
(3.) IN this case, when the petitioner was claiming that the property had not been notified at any time, the Government ought to have seen ascertained the basis on which the Custodian claimed a right and allotted the same to the private respondents. When the petitioner was contending again that it had not been even notified, the Custodian General could not have asked for proof from the petitioners, requiring ownership details. It is a fundamental precept of law that possession in nine points in law and a person who is in possession, cannot be ousted otherwise than by a person, who proves a better entitlement. The Estate officer cannot eject a person in possession unless he shows that it was an evacuee property and abandoned by an occupancy tenant or by an owner on or after 1st March, 1947. The Custodian General had clearly placed the onus wrongly on the petitioners to establish their ownership. On the contrary, it should have been the duty of the Custodian to show that it was an evacuee property and notified as such. The impugned order is erroneous and consequently set aside. I, however, leave the question still open for the Government to take independent action if, they establish that it was an evacuee property and notified as such and use that such a ground for recovery from the petitioners if permissible under law and if there is no fetter on the issue of limitation.;