BIBI ABEDA KHATOON Vs. ASSISTANT CUSTODIAN OF EVACUEE PROPERTY

JUDGEMENT

(1.) This appeal by the plaintiffs is directed against the decision of an Additional Subordinate Judge, Arrah, dismissing a suit for declaration that an order dated the 22nd December 1952 passed by the Assistant Custodian of Evacuee Property, Arrah (defendant No. 1) in Evacuee Case No. 65 of 1952 (State v. Bibi Sadiqua) was without jurisdiction, and, therefore, a pucca house (described in Schedule 'A' to the plaint) at village Koilwar did not vest in the defendants, defendant No. 2 being the Union of India in the Relief and Rehabilitation Department.

(2.) The disputed house originally belonged to one Bibi Sadiqua, wife of Fazal Karim of village Koilwar, in the district of Shahabad. She sold this house to the plaintiffs for a sum of Rs. 10,000/- in the name of Bibi Abeda Khatoon (Plaintiff No. 1), wife of plaintiff No. 2, under a registered sale-deed dated the 29th December, 1950 (Ext. 1). On this sale-deed, the Sub-Registrar who registered the document made an endorsement that he gave a warning to the transferee that the transferor was an intending evacuee or the property sought to be transferred was an evacuee property and that the transferee will take the risk in purchasing the property. Evacuee Case No. 65 of 1952 was started by the Assistant Custodian at Arrah and notice was issued under Section 7 (1) of the Administration of Evacuee Property Act, 1950, on the 30th May 1952 to Bibi Sadiqua. This notice could not, however, be served, as it was reported that Bibi Sadiqua was not there and her husband had left India for Pakistan. Under a subsequent order dated the 3rd July 1952, a notice seems, however, to have been served by affixing the notice at the aforesaid house, and on the 25th July 1952, an objection was filed before the Assistant Custodian in the aforesaid evacuee case on behalf of Bibi Abeda Khatoon, which was signed in her own pen. In that objection, she said that she had received information about the evacuee proceeding against Bibi Sadique and that she had learnt that a notice in the name of Bibi Sadiqua had also been taken to Koilwar, whereby Bibi Sadiqua was called upon to show cause why orders should not be passed declaring her to be evacuee and all her properties to be evacuee properties under the provisions of the said Act, on the ground that she had opted to Pakistan. Thereafter Bibi Abeda Khatoon stated about her purchase and her possession over the house as also about improvements and repairs made by her in the said house and prayed that, inasmuch as the proceeding was not warranted by law. the same may be dropped. Thereafter, by the order dated the 25th July 1952 of the Assistant Custodian (Ext. B), Bibi Abeda Khatoon was directed to produce evidence in support of her statement by the 16th August 1952. No further step was, however, taken by the plaintiffs; and ultimately on the 22nd December 1952, the Assistant Custodian passed an order, the relevant extract of which is re-produced below :

(3.) In the meantime, it appears that plaintiff No. 1 Bibi Abeda Khatoon made an application under Section 40 of the Act for confirmation of her right, title and interest in respect of the house on the basis of the registered sale deed, but this application was dismissed on the 17th September 1956, on merits as well as on the technical ground of limitation. It was stated in this order by the Assistant Custodian that it had been conclusively proved that Bibi Sadiqua had migrated to Pakistan sometime in 1946-47 and that she was living with her husband, the Evacuee case was started on 3-5-1952 and finally disposed of on 22-12-1952; and, inasmuch as the petition under Section 40 of the Act had been filed on 7-5-1953, that is, more than sixty days after the order dated the 22nd December 1952, it was barred by limitation, particularly in view of the fact that there was no application for condonation of the delay. There was an appeal to the Custodian against this order, and this appeal was also dismissed on 24-11-1956 (See Exts. B/1 and E). A revision against the appellate order was dismissed by the Deputy Custodian-General of Evacuee Property on the 12th August 1957. Thereafter, the present suit was instituted on the 17th May 1958.