SANSAR PAL Vs. CHIEF SETTLEMENT COMMISSIONER REHABILITATION DEPARTMENT

JUDGEMENT

(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 ;

(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.

(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.