S.P.KURDUKAR, C.J. - (1.) THIS letters Patent Appeal is filed by the appellant challenging the legality and correctness of the judgment of the Single Judge dated 27. 2. 1992 in Civil Writ Petition No. 2251 of 1991. The learned Single Judge by his common judgment disposed of C. W. P. No. 2251 of 1991 and Regular Second Appeal No. 970, 1279 and 1502 of 1988. At the out set it may be stated that the judgment relating to those second appeals is not the subject matter of challenge in this Letters Patent Appeal. In this L. P. A. we are concerned with the findings recorded in judgment (common) relating to controversy in C. W. P. No. 2251 of 1991. The subject matter of dispute was common in all these proceedings. The parties are, however different. As far as Parties to C. W. P. No. 2251 of 1991 are concerned they are principally the Tehsildar and authorities under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the allotee under the said act. The present proceedings arise in a very peculiar circumstances. Suit No. 19 of 1983 was filed by Ganga Lal son of Ganga Parshad, the father of the present appellant against Punjab Wakf Board, Ambala and others. It was a suit for declaration and permanent injunction. Suit was partly decreed to the extent of permanent injunction. Three appeals were filed by the parties before the Additional District Judge, Faridabad. These three appeals were disposed of by common judgment dated 13. 1. 1988 and the learned Additional District Judge dismissed all these appeals. The appellant filed Regular Second Appeal in this Court. Other defendants also filed second appeals and all these Second Appeals were dismissed by a common judgment rendered by learned Single Judge. The Additional District Judge while disposing of batch of appeals, in paragraph 18 observed as under ; "trustees can take action to recover such property under the Punjab Wakf Board Act, 1954 under its Sections 9 and 15. In other words, in the case in hand the land in dispute remained as evacuee property under the ownership of Provincial Government i. e. Previously Punjab and after 1%6 the State Government of Haryana. " On the basis of these observations the Tehsildar (Sales) Faridabad vide his order dated 28. 5. 1988. directed the Sub Tehsildar (Revenue), Faridabad to change the record in accordance with the observations made by the Additional District Judge. From the record, it appears that the Tehsildar then initialed the proceedings treating the property as evacuee property. The lands in dispute bear Khasra Nos. 22, 23, and 24, totally ad measuring 26 kanals 19 Marlas situated at village Daultabad. Tehsildar issued notice Under Section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as the Act) and called upon the appellant to remain present at the inquiry. The Tehsildar by his order dated 19. 9. 88 held that Ganga Lal (father of the appellant) has no connection with the lands in dispute and, therefore, Under Section 19 (2) of the Act, he is required to be evicted. Accordingly, Tehsildar passed an order of ejectment and directed the Kanungo is recover the possession from the said Ganga Lal. There is also an order made by the Tehsildar to recover-a sum of Rs. 23,540/- from the said Ganga Lal on account of unauthorised possession. Ganga Lal aggrieved by the said order preferred a petition Under Section 24 of the Act before the Chief Settlement Commissioner, Rehabilitation Department, Haryana, Chandigarh. The Chief Settlement Commissioner vide his order dated. 24. 9. 1990, dismissed the petition and confirmed the order passed by the Tehsildar. In the meantime Ganga Lal died and his son Sansar Pal, the present appellant, came on record and carried the proceedings further. The appellant filed a petition Under Section 33 of the Act challenging the legality and correctness of the order passed by the Chief settlement Commissioner. The Financial Commissioner by his order dated 11. 3. 1991 dismissed the said petition. The appellant filed a revision petition Under Section 27 of the Administration of Evacuee Property Act. 1950 before the Custodian General, Haryana. The Custodian General vide his order dated 24. 4. 1991 dismissed the petition as withdrawn. The above resume would indicate that there is as of today an order against the appellant for eviction from the suit lands.
(2.) MR . Kapoor, the learned counsel appearing on behalf of the appellant, urged that none of these authorities has either collected the relevant material to come to a definite conclusion that the property in dispute was an evacuee property. He urged that the appellant was denied a fair opportunity at the hearing. The Counsel therefore urged that in the interest of justice appropriate order be passed. Mr. Bhandari the learned advocate appearing for the allottee respondent No. 3 urged that he is an allottee under the Act and he being a displaced person, his rights be protected. He also urged that whatever evidence led by the parties was considered by the authorities below and no fault can be found with the impugned orders. He strongly opposed any order of remand because appellant who is a rank trespasser is continuing in possession without any right. Mr. Sharma, the learned Additional Advocate General appearing for the authorities and Slate of Haryana supported the orders.
(3.) WE have gone through the record and we are satisfied that none of the authorities below has applied its mind to the real issue. The relevant and material question is whether the property in dispute is a subject matter of an evacuee estate. The authorities below have proceeded altogether on erroneous assumption applying the ratio of the decision of this Court in Pritpal Singh v. Punjab Wakf Board, (1977)79 P. L. R. 3 (S. N) 1977 P. L. J 271. Strong reliance was placed upon by the authorities below on Jamabandi for the year 1943-44 in which it has been recorded that some Muslim persons were in occupation of the property in dispute. After going through the reported decision in Pritpal Singh's case (supra) we are of the opinion that the controversy raised therein was as to whether the property was Wakf or not. It may also be stated that the present appellant was not a party to the said proceedings. However, it cannot be denied that it could be a piece of evidence to be taken into account while determining the nature and character of the property. Except these two documents and some stray revenue record, no other documents were collected by either Tehsildar or Chief Settlement Commissioner to find out conclusively as to whether properly is an evacuee or otherwise. If the property is held to be an evacuee then only the question of title could be answered in that sense and the person in whom the property vests can ask for the eviction of the appellant. We are conscious that the appellant is a trespasser as held by this court in the impugned judgment relating to controversy in second appeals but, however, it is well settled that a trespasser can be evicted only by a rightful owner. As of today, the evidence on record does not satisfactorily prove that the property vested in the Custodian under the Act and unless that is proved, it cannot be said that the Tehsildar on behalf of the Custodian can evict the appellant from the property in dispute. It is in these circumstances that we are unable to sustain the findings of the authorities below including the findings recorded by the learned Single Judge on this issue.;