Nisha Gupta, J. - (1.) THIS second appeal under Section 100 C.P.C. has been filed against the judgment and decree dated 7.8.1982 passed by Addl. Civil Judge, Bharatpur in Civil Appeal No. 30/1982 confirming the judgment and decree dated 11.8.76 passed by Munsiff & Judicial Magistrate, Bharatpur in Civil Suit No. 41/66. The brief facts leading to tiling of this second appeal are that the plaintiff -appellant filed a suit in the court of Munsiff & Judicial Magistrate, Bharatpur against respondents for declaration and possession. The case of the plaintiff is that he purchased the property from the Custodian Department, Rajasthan. He is the owner of the property. Amir Hussain used to reside in the property since 1957. His possession was declared illegal by the Custodian Department and it has also been informed to Amir Hussain that the property has been sold to the plaintiff and the possession be handed over to him and for the same, suit for declaration and possession has been filed which was dismissed by the court below and appeal has also been dismissed, hence this second appeal has been filed which was admitted on 3.8.83 on the following substantial questions of law: - - (i) whether the learned two courts below could have entertain the question as to whether the property in question has been declared as evacuee property or not and if so, whether such declaration was according to law? (ii) Whether in the facts and circumstances in the present case any notice under Section 7 of the Act of 1950 was required to be given to Smt. Johra when at no stage she claimed to be the owner of the property in question nor any document of title had ever been produced by her? (iii) Whether a presumption of regularity of all official acts could have been drawn in favour of the appellant on the basis of various documents produced by him from the Custodian Department and had been proved as such where the property in question was shown to be evacuee property and in such circumstances whether it was open to the learned lower courts to have examined the correctness of such declaration? (iv) Whether when the property had been vested in the Central Government free from all encumbrances and even it was sold to the plaintiff was it open to the learned two courts below to decline to grant the relief of declaration of appellants' title of property in question when the defendant could not place any material to show though it had never vested in the Central Government?
(2.) THE contention of the present appellant is that he purchased the property as evacuee property from the Custodian Department but the court below has gone into the question whether declaration of evacuee property was according to law or not which is bared under Section 27 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as the 'Act of 1954') and when property has been declared evacuee property as per the provisions of Administration of Evacuee Property Act, 1950 (in short Act of 1950) bar under Section 46 of the above Act will apply and civil court could not go into the question whether any property is evacuee property or not. Under the Act of 1954, the respondents were free to file an appeal under Section 22 and 23 but no objections have been raised by the respondents. Even DW/5 Lalit Kishore Chaturvedi has specifically stated that it was an evacuee property and basic property register as regards the evacuee property has been submitted and civil court was not in its jurisdiction to go into the legality of the declaration of evacuee property hence the issue should be decided in favour of the appellant. Per contra, the contention of the respondents is that it is true that as per bar of Section 27 and 46 respectively in the Acts of 1954 and 1950, the Court cannot go into the question of validity of the declaration of the evacuee property but here in the present case, no notification under Section 7 of the Act of 1950 was issued, the appellant has not placed any such notification that the disputed property was ever declared evacuee property and in absence of notification of Section 7, powers to acquire evacuee property for rehabilitation of disabled persons under Section 12 of the Act of 1954 could not be acquired and when no proceedings under Section 7 or 12 was initiated, the civil court was within his jurisdiction to look into the matter whether at any time the property has been declared evacuee property or not and his further contention is that after 7th May. 1954 no property could be declared evacuee property as per the provisions of Section 7 -A of Act of 1950 and here in the present case, Ex. 6 which has been relied upon by the appellant himself clearly states that order for enquiry has been passed on 27.2.1960 and vide order Ex. 6, it has been ordered that order of 27.2.1960 be complied with. Meaning thereby that till that date, the disputed property has not been declared evacuee property and in basic property register also column is blank as regards the notification declaring the present property as evacuee property which fortified the contention of the respondents that property has never been declared evacuee property and it is a settled proposition of law that a person cannot pass better title than he has. Heard the learned counsel for the parties and perused the judgments and decree under appeal as well as the original record of the case.
(3.) IN the present case, the contention of the appellant is that he is the owner of the property as he has purchased the property from the custodian and Ex. 1 deed of conveyance has been placed on record to fortify his contention Ex. 6 order of the Assistant Custodian, Alwar dated 12.6.64 and basic property register Ex. A/11 have been submitted but bare perusal of Ex. 6 order of the Assistant Custodian, Alwar clearly speaks that an application has been filed on behalf of the appellant as regards the boundaries and measurement of the property and vide order dated 27.2.1960, an enquiry has been ordered which was further fortified by the order dated 12.1.64 Ex. 6 but in Ex. 6 also nothing has been stated that any notification under Section 7 of the Act of 1950 or under Section 12 for the Act of 1954 was issued to declare the disputed property as evacuee property and in the absence of the notification, the court below was right in holding that the disputed property never declared evacuee property and this fact has further been fortified by entries in Ex. A -11 the basic property register in which Column No. 4 is blank where the date of gazette notification on which the property has been declared as evacuee property was to be mentioned.;