Bhandari, J. - (1.) IT appears that a shop No. 6 in 'K' Block Sher Singh Building in Delhi belonging to one Lala Sher Singh was being used as a dairy and bakery by certain Muslims up to September 1947. In that month the Muslim tenants left the premises and the possession of the shop was restored to the landlord. Shortly afterwards, Rai Bahadur Brij Lal took possession of the premises, but his possession was disturbed by the Custodian. He represented the matter to the Custodian and was put back into possession on. 10 -10 -1947. In November of the same year Taj Mohammad who was the original tenant applied to the Custodian for a declaration that the shop in question was not evacuee property. At the Same time, Sardar Gajindar Singh applied for the allotment of the shop and he was appointed Sapurdar in respect thereof. Rai Bahadur Brij Lal, who, as I have stated already, was in possession of the property, made a fresh representation to the Custodian and was allowed to remain in possession of the property till March 1948. Some time later, the shop was allotted to Sardar Gajindar Singh but Rai Bahadur Brij Lal protested against the order and was informed that the Custodian was not prepared to re -open the question. On 19 -7 -1948, the Custodian came to the conclusion that Taj Mohammad was not entitled to exclusive possession and that the shop was evacuee 'property. As a result of these findings the petition of Taj Mohammad was dismissed. Rai Bahadur Brij Lal, Lala Sher Singh and Taj Mohammad appealed from the order of the Custodian but the appeal preferred by Taj Mohammad was not pressed before the learned Dist. J.
(2.) TWO questions arose for decision before the learned Dist. J., namely, (l) whether Taj Mohammad the previous tenant had merely abandoned the promises on account of disturbances, or whether that tenant actually surrendered possession to the landlord and terminated the tenancy and (2) whether the tenancy rights could vest in the Custodian if the tenancy came to an end before the enactment of Ordinance iv [4] of 1947. After hearing the arguments which were addressed to him the learned Dist. J. held in the Petitioner of Taj Mohammad that the case as put on behalf of Rai Bahadur Brij Lal and Lala Sher Singh was never considered as the Deputy Custodian appears to have found only that the tenants had left the promises and that the tenants were evacuees and also that Taj Mohammad was not the sole tenant and therefore not entitled to exclusive possession. He held further that the representations put in by Rai Bahadur Brij Lal were not properly considered. In view of these findings he came to the conclusion that it was necessary in the interests of justice that there should be a further and proper inquiry into the case as the Custodian's mind appeared to have been directed only to the question whether Rai Bahadur Brij Lal, who was a refugee was or was not entitled to be allotted the disputed property. Sardar Gajindar Singh is dissatisfied with the order of remand and has come to this Court in revn. Rai Bahadur Mukand Lal Puri who appears for Rai Bahadur Brij Lal and Lala Sher Singh takes two preliminary objections, namely, (1) that the Petitioner who was not a party to the appeal before the learned Dist. J. is not at liberty to come to this Court in revn. against the order of the said Dist. J. and (2) that this Court should not entertain the present Petitioner at this stage.
(3.) AFTER going through the authorities which have been cited before me, I am clearly of the opinion that the Petitioner which has been presented before me is premature and ought not to be considered at this stage. In Ali Bakhsh v. Ghuhar Singh 101 P.R. 1910 : 8 I.C. 1157 a D.B. of the Punjab Chief Court observed as follows: Mr. Ziaud Din, however, asks us to entertain the memo, of appeal as a Petitioner for revn. under Section 70(1), Clause (b), Punjab Courts Act, inasmuch as there is (according to him) an important question of law involved. Upon the latter point we say nothing' but we are quite to clear that it would not be a proper exercise of this Court's provisional power under Clause (b) of Section 70(1) of the Act, for it to interfere under that clause in a case which is still sub judice in the lower Courts. No final decree has as yet been passed in the case, and the dispute between the parties has been remanded to the first Court for decision on the merits. When the final order (or rather decree) has been given, it may be open to the present Appellant, if he then is still desirous of having the question of law involved in the case, adjudicated upon by this Court to present a Petitioner under Section 70(1)(b). But at present any such Petitioner is premature, and upon this ground we must decline to treat the memo of appeal as a Petitioner for revision.;