Mahendra Pratap Dubey vs Managing Officer,Evacuee Property

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6384 OF 2010

Mahendra Pratap Dubey …..Appellant

:Versus:

Managing Officer, Evacuee Property & Ors. ....Respondent(s)

JUDGMENT

A.M. Khanwilkar, J.

1. This appeal takes exception to the judgment and order

dated 26th February, 2007 passed by the High Court of

Judicature at Allahabad in Civil Misc. Writ Petition No.30158

of 1995, whereby the writ petition filed by the appellant

challenging the decision of the Chief Settlement

Commissioner, Board of Revenue U.P. at Lucknow was Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2018.11.16 16:04:30 IST Reason:

rejected. The Assistant Custodian/Managing Officer (Evacuee 2

Property), Board of Revenue, Lucknow had allowed the

application filed by respondent No.3 - Mainmum Nissa @

Kumani, W/o Subrati @ Algu, R/o Village Singramau, Tehsil

Shahganj, District Jaunpur, U.P., accepting her claim that she

was occupying the suit property as owner thereof, having

purchased the same at a public auction and in furtherance

whereof a certificate of sale came to be issued in her favour

and that respondent No.4 - Mohd. Sattar @ Mokhan (through

whom the appellant claims his right, title and interest in the

suit property) was causing obstruction to her possession in

the suit property on the basis of some fictitious sale certificate

dated 30th September, 1968.

2. Be it noted that the statutory authorities and the High

Court have concurrently found that Ram Abhilakh (through

whom the appellant claims to have acquired title in the suit

property), to whom notice was issued by the authority and

opportunity was given to produce the official record in his

possession to substantiate that he had acquired title in the

suit property pursuant to a transfer by the Custodian in 3

favour of Md. Sattar @ Mokhan, failed to do so. He avoided

filing any document. Further, there was no record or any entry

in the official register to show that any sale certificate was

issued in favour of Md. Sattar @ Mokhan by the concerned

department.

3. On the other hand, it has been concurrently held that

respondent No.3 had produced a certificate of sale dated 7th

August, 1965 in her favour issued by the competent authority

in reference to an auction conducted on 12th July, 1962, at

which she purchased the subject property. Further, there was

nothing to discredit the documents and the testimony of

respondent No.3 that she had acquired right, title and interest

in the suit property by virtue of a certificate of sale in her

favour. Such finding has been recorded by the first authority

vide judgment and order dated 4th May, 1985 and confirmed

by the Collector, District Jaunpur, by dismissing the appeal

preferred by the appellant bearing Case No.8/1984/522

decided on 7th October, 1988 and further upheld by the Chief

Settlement Commissioner, Board of Revenue, Lucknow, U.P., 4

being the revisional authority, by dismissing the revision of the

appellant bearing Revision No.1(RR) No./1988-89) District

Jaunpur, decided on 5th August, 1995. The High Court,

therefore, declined to interfere in exercise of its writ

jurisdiction and dismissed the writ petition preferred by the

appellant vide impugned judgment and order.

4. The moot question agitated by the appellant before the

concerned authorities and up till the High Court, was that the

Managing Officer, appointed under the Displaced Persons

(Compensation and Rehabilitation) Act, 1954 had no

jurisdiction to determine the validity of a sale certificate

issued by the Custodian of Evacuee Property in exercise of the

powers conferred upon him under Section 10(2)(o) of the

Administration of Evacuee Property Act, 1950. This

contention, however, did not find favour with either the

authorities or the High Court in view of the findings of fact

recorded against the appellant. The appellant was neither able

to assail the concurrent findings of fact recorded by the

authorities before the High Court nor did he produce the 5

original sale certificate dated 30th November, 1968 purportedly

issued in favour of respondent No.4 (Md. Sattar @ Mokhan),

who had transferred the property to one Shri Vishwanath S/o

Kukhekahar who in turn transferred the same to Ram

Abhilakh S/o Parmananad, R/o Shahganj, District Jaunpur,

from whom the appellant claims to have acquired the same.

5. In the present appeal, the appellant has contended that if

an Indian citizen had left India to live in Pakistan, his property

would become an evacuee property as defined in Section 2(f) of

the 1950 Act; and whence the Custodian alone would have the

power under Section 10 of the 1950 Act to transfer such

property in the manner prescribed by the 1950 Act. Further,

such evacuee property could indeed be acquired under Section

12 of the Displaced Persons (Compensation and

Rehabilitation) Act, 1954 by the Central Government,

consequent to which the property would lose the status of an

evacuee property and the Custodian would be divested of its

power to deal with the same. That property would then become

a part of the compensation pool as envisaged under Section 14 6

of the 1954 Act and only thereafter, could the Managing

Officer assume control or authority over the same and dispose

it of in the manner specified under Section 20 of the 1954 Act.

On facts, it has been argued on behalf of the appellant that

respondent No.3 admits that the property is an evacuee

property and has not claimed that it is a compensation pool

property. For, in the suit filed by the husband of respondent

No.3 (Subrati), being suit No.520/1982, it was asserted that

the evacuee property has been auctioned off to respondent

No.3 by the Custodian; but in the subject application dated

30th April, 1982 field before the Managing Officer, respondent

No.3 claims that the suit property was purchased in an

auction and consideration amount was deposited in the office

of the Managing Officer and the sale certificate dated 7th

August, 1965 came to be issued in her favour by the Managing

Officer. Similarly, in the counter affidavit filed before this

Court, respondent No.3 had claimed that the property was

transferred to her by the Managing Officer. In substance, the

argument is that respondent No.3 has taken a contradictory 7

stand before different authorities and courts, which must

militate against her.

6. The contesting respondent, on the other hand, would

contend that regard being had to the concurrent finding of fact

recorded by the authorities concerned and also upheld by the

High Court, the sole issue raised by the appellant about the

jurisdiction of the Managing Officer does not merit any

interference. An abstract debate bereft of any proof produced

by the appellant to establish that the suit property was

transferred to respondent No.4 (Md. Sattar @ Mokhan) by the

Custodian in terms of sale certificate dated 30th November,

1968, does not merit examination. The question whether such

a sale certificate was issued and, in fact, exists, could certainly

be examined by the Managing Officer before whom the subject

application dated 30th April, 1982 was filed by respondent

No.3, by virtue of the enabling provision in Section 19 and the

bar of jurisdiction of the civil courts in terms of Section 36 of

1954 Act. In such an enquiry, all aspects were open including

to determine as to whether the sale certificate issued in favour 8

of respondent No.3 by the office of the Managing Officer, is

valid. It is submitted that all the authorities including the

High Court have concurrently found that the sale certificate

issued in favour of respondent No.3 in respect of suit property

dated 7th August, 1965 was genuine and valid. Furthermore, it

has been concurrently found against the appellant that

despite sufficient opportunity, his predecessor-in-title Ram

Abhilakh S/o Parmanand did not produce any document; nor

did respondent No.4 (Md. Sattar @ Mokhan), through whom he

(appellant) had claimed right, title and interest in the suit

property, produce the original transfer document issued by the

Custodian to prove the genuineness of the transaction and

further there was no record or any entry in the official register

evidencing that any sale certificate was issued in favour of

respondent No.4 (Md. Sattar @ Mokhan) by the department. In

that view of the matter, the question of law sought to be

agitated by the appellant about the authority of the Managing

Officer to decide the matter in issue concerning the sale

certificate issued by the Custodian of Evacuee Property under 9

the 1950 Act would be tenuous and the Court should not

enter upon that issue.

7. We have heard Mr. Anurag Dubey, learned counsel

appearing for the appellant and Ms. Meenakshi Kalra, learned

counsel appearing for the respondents.

8. Indisputably, the respondent No.3 had filed an

application before the Assistant Custodian/Managing Officer

(Evacuee Property), Board of Revenue, Lucknow, which

highlighted two aspects. First, that it be declared or directed

that she had acquired right, title and interest in the suit

property by virtue of the sale certificate dated 7th August, 1965

issued by the Managing Officer. Second, the claim of

respondent No.4 (Md. Sattar @ Mokhan) that the suit property

was transferred in his favour by virtue of a sale certificate

dated 30th November, 1968, issued by the Custodian is non-

existent and not genuine.

9. Respondent No.3 in the subject application had asserted

that she had purchased the suit property at a public auction 10

held on 12th July, 1962; and after payment of the sale

consideration in the office of the Managing Officer, a certificate

of sale was issued in her favour on 7th August, 1965. To

buttress this submission, reliance has been placed by

respondent No.3 - Mainmum Nissa @ Kumani on (i) Receipt

issued by the Office of the Regional Settlement Commissioner,

U.P., accepting the consideration amount paid by her, (ii)

Acceptance Letter issued by the Assistant Custodian,

Government of India, dated 10th June, 1965, and (iii)

Certificate of Sale issued under the signature of the Managing

Officer, Varanasi. The said documents read thus:

“Annexure -R2 EVACUEE SIRAI FORM NO.1 OFFICE OF THE REGIONAL SETTLEMENT COMMISSIONER UTTAR PRADESH Srl. No. 4209 Receipt No.30 Dated: 12.7.62

Received from Mst. Maimunnisha alias Kumman, 170/- (Rupees One hundred seventy only) by cash on account of rent / licence fee / licence money in respect of / as earnest money for KacchaKhander house of Evacuee Sirai in Village Sgramau, Teh. Shahganj, Jaunpur.

Previous Receipt No. Dated Note: Where payment is made by cheque and the cheque is dishonoured by the bank, the receipt will be rendered in valid.

H/B (highest bid) 1700/-

11 Sd/ (illegible) 12.7.62 Jr. Accountant

Subject to the approval of higher authorities”

“Annexure R-3 Form No. IX ACCEPTANCE LETTER GOVERNMENT OF INDIA MINISTER OF REHABILITATION Office of the Assistant Custodian

District Varanasi Dated: 10.6.1965

Smt. Maimun Nisha alias Kumman w/o Subrati alias (illegible) Shahganj, Jaunpur.

Subject: Sale Kaccha House Khander, Situated at: Sigramau, Shahganj, Jaunpur. Evacuee: Sirai

You are hereby informed that you bid dated 12 July, 1962 for Rs. 1700/- for the above noted property, has been accepted. You are further required to send by pot or to produce before the undersigned a treasury challan for the deposit of balance money of sale price amounting to Rs.1530/-, under Central head “S-Deposits and Advances – Part IV Suspense Accounts – P.A.O. Suspense – Transactions Adjustable with Pay and Accounts Office, Rehabilitation Delhi – Finally Adjustable by P.A.O. under the Head S – Deposits and Advances – Part II Deposits not bearing Interest – IVIL Deposits – Personal Deposits – Deposits on Account of Un-acquired Evacuee Property”, within 15 days from the date of issue of this letter.

Sd/-

(B.B. VERMA) Assistant Custodian” 12

“Annexure R-4

GOVERNMENT OF INDIA MINISTRY OF REHABILITATION OFFICE OF THE MANAGING OFFICER VARANASI APPENDIX XXII CERTIFICATE OF SALE (Free Hold Property) Rule 90(15) Dated:7.8.1965

This is to certify that Smt. Maimun Nisha alias Kamman w/o Subrati resident of Sigramau, Shahganj, Jaunpur having given the highest bid at a sale by public auction held in pursuance of the powers conferred upon me under Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954) on the 12th day of July 1962 of the properly described in the Schedule and his bid having been accepted and the valid thereof having been paid by him in cash/ by adjustment of compensation due on his and his associates claims has been declared the purchaser of the said property with effect from 25th day of June 1965. Given under my hand and seal of my office this 26th June of 1965.

SCHEDULE Kaccha House Khander EVACUEE Sigramau, Evacuee Sirai Sale price 1700/- Shahganj, Sirai Jaunpur

East – House of Jokhu& Field West – House of Gaya Dargai North – Road South – House of Dase Sd/- (B.B. Verma) Managing Officer Varanasi” 13

10. From the acceptance letter, it is noticeable that it has

been issued under the signature of one B.B. Verma, Assistant

Custodian and the same person issued a certificate of sale in

his capacity as Managing Officer. It must be kept in mind that

the application was moved by respondent No.3 and not by the

appellant or any of his stated predecessor(s)-in-title. In that

situation, the enquiry into the application ought to be limited

to the fact as to whether the documents relied upon by

respondent No.3 before the authority, to claim that she had

acquired right, title and interest in the suit property as a

consequence of issuance of certificate of sale, were genuine.

Neither the appellant nor his predecessor-in-title has

challenged the validity of the said official documents issued in

favour of respondent No.3 before the concerned authority or

otherwise. In the proceedings initiated by respondent No.3,

because of the stand taken by her that respondent No.4 (Md.

Sattar @ Mokhan) was also claiming right, title and interest in

the suit property by virtue of a sale certificate issued in his

favour by the Custodian, notices were issued by the competent 14

authority to him as well as Vishwanath S/o Sukhi and Ram

Abhilakh S/o Parmanand to evoke their response. Despite

opportunity given by the competent authority, they failed to

produce any document, much less original documents,

evidencing that the Custodian had issued a sale certificate in

respect of the suit property in favour of respondent No.4 (Md.

Sattar @ Mokhan).

11. The appellant as well as respondent No.4 having failed to

produce any original document and since there was no record

or entry in the official register to show that such a sale

certificate was issued in favour of respondent No.4 (Md. Sattar

@ Mokhan) by the Department, as concurrently found by the

authorities, it must follow that their claim in respect of the

suit property remained unsubstantiated. In other words, the

appellant has not been able to establish any causal connection

with the suit property either on account of allotment of the

suit property to him or his predecessors, by the competent

authority or otherwise. The Assistant Custodian on analysing

the factual position in its judgment observed thus: 15

“I have gone through the file and found there is no such documents have been filed by the objector whose genuineness can be examined except the objection which has been filed on behalf of O.P. Sri Ram Abhilakh stating that this tribunal has got no jurisdiction to examine the genuineness of sale certificate that which one is correct out of these two documents.

In this regard I have to mention that this has been the consistent view of the higher tribunal under the O.P. (C & P) Act No. 44 of 1954, that in a case in which the nature of each complaint is that some forged deeds have been reported to have been issued by the Assistant Castodian/Managing Officer the said officer can meet enquiries and can ask the person concerned to produced the relevant papers to examine their veracity find out if any such deed was at all issued. In this connection a copy of order of Sri Prem Narain, Settlement Commissioner (Judicial) passed on 11.10.76 in appeal No.14/SC/PN/U/70,SriMohd. Shamim Vs. Managing Officer, Lucknow was filed as an examper, in which it has been held that the Managing Officer can certainly look into the matter on receipt of complaint and can pass appropriate order on that basis. Accordingly, the parties were directed to produce relevant papers, the applicant Smt. MaimunNissa filed the original & photo copy of receipt of earnest money, acceptance letter dt. 10.6.65 and the sale certificate dt. 7.7.65 referred to above, and supported her contention on affidavit. Sri Ram Abhilekh did not produce any document and also did not produce Sri Mohd. Satar @ Mohkan the alleged original transferred from the custodian to prove the genuineness of the transaction. On the other hand the evaded to file the documentation the plea that the same cannot be looked into by the tribunal; which as stated above can always be looked in this circumstances of the case.

In the absence of any papers or evidence of Sri Ram Abilekh the matter was examined with the available records.

The connected file shows that first the house was put to sale on 16.3.62 when the bid of Smt. Amina was the highest for Rs.1210/- and an amount of Rs.121/- was deposited but subsequently for non deposit the balance 16

money the sale was cancelled and the earnest money deposited was forfeited.

It further seems from the documents filed that the house was put to sale on 12.7.82 and it was knocked down in favour of MaimunNissa, who deposited Rs.170/- as earnest money and on receipt of acceptance letter dt.10.6….. she deposited the balance sale consideration money on 26.6.65 and thereafter the certificate of sale was issued in her favour on 7.7.65 by Sri B.B. Verma, Managing Officer, Varanasi. I have seen the original documents. There is nothing to discredit the said documents and the testimony of Smt. MaimumNissa. There is no record in the office or any entry in the office register to show that any Sale Certificate was issued in favour of Mohd. Sattar @ Mohkan by this department. The sale certificate issued in favour of Smt. MaimunNissa is accordingly held valid.”

(emphasis supplied)

12. This finding of fact and conclusion came to be affirmed

by the Appellate Authority as well as the Revisional Authority

for which reason the High Court declined to interfere. Once it

is held that no sale certificate issued in favour of respondent

No.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee

Property, under the 1950 Act is forthcoming nor any entry in

the official register is found in that regard, all persons claiming

through him (including the appellant) must suffer the

consequences of such a finding of fact. Notably, respondent

No.4 (Md. Sattar @ Mokhan) has not claimed right in respect 17

of the suit property in any other capacity, and in that view of

the matter, we fail to understand as to how Md. Sattar @

Mokhan, or any person claiming through him, could be

permitted to question the validity of the sale certificate dated

7th August, 1965 issued by the Managing Officer in favour of

respondent No.3 (Mainmum Nissa @ Kumani).

13. The appellant had placed emphasis on the finding

rendered in the civil suit filed by the husband of respondent

No.3, for permanent injunction against respondent No.4 (Md.

Sattar @ Mokhan). However, we agree with the concurrent

view taken by the authority concerned that the said finding

will be of no avail to the appellant. For, respondent No.3 was

not impleaded as a party in the said suit.

14. Suffice it to observe that the appellant, having failed to

produce the sale certificate in favour of respondent No.4 (Md.

Sattar @ Mokhan) issued by the Custodian of Evacuee

Property under the 1950 Act, he cannot be heard to raise the

issue of jurisdiction of the Managing Officer to deal with the

subject property, including the validity of the sale certificate 18

issued in favour of respondent No.3. A deeper enquiry as to

how the Managing Officer assumed jurisdiction to issue the

sale certificate in favour of respondent No.3 would become

relevant and essential only if the appellant was able to

substantiate the fact, at least prima facie, that the suit

property was, in fact, transferred in favour of respondent No.4

(Md. Sattar @ Mokhan) by the Custodian of Evacuee Property

under the 1950 Act. Accordingly, this appeal must fail.

15. In view of above, the appeal is dismissed with costs.

…………………………..….J. (A.M. Khanwilkar)

…………………………..….J. (Dr. D.Y. Chandrachud) New Delhi;

November 16, 2018.