Pavitter Singh and Others Vs. Niranjan Lal Malhotra
EmailAppeal: Civil Appeal No. 1979/1992
Petitioner: Pavitter Singh and Others
Respondent: Niranjan Lal Malhotra
Apeal: Civil Appeal No. 1979/1992
Judges: V.N. KHARE & B.N. AGRAWAL, JJ.
Date of Judgment: Aug 21, 2001
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Section 20 with Administration of Evacuee Property Act, 1950 – Section 46 – Bar of jurisdiction of civil court – Evacuee property transferred to occupant – Conveyance deed showing a passage to main road as part of property – Said passage in fact belonging to adjoining property – Matter agitated and High Court declaring the first owner to have easementary right over passage, approving decision of chief settlement commissioner – Said owner filing suit – Trial court dismissing for want of jurisdiction – Said decision final – First appellate court and second appellate court holding jurisdiction – If correct. Held that the civil court jurisdiction was barred under section 46 of the Act of 1950. Appeal allowed. (Para 3)
JUDGEMENT:
ORDER
1. Property nos. XV/5326 and XV/5327 were originally owned by one Indra Devi. Prior to 1947 Indra Devi sold the property no. XV/5326 to Newaz Khan. After partition of the country Newaz Khan migrated to Pakistan. Consequently, the property no. XV/5326 became an evacuee property. However, the said property was being occupied by ~4~ Niranjan Lal Malhotra. Since Niranjan Lal Malhotra was occupant of the said property, the custodian department transferred the said property in his favour by a registered conveyance deed. In the conveyance deed, the passage to reach the main road was also shown in property no. XV/5326. The other property no. XV/5327 was sold by its owner Indra Devi to one Amir Khan. Subsequently, Amir Khan sold the said property to Amolak Singh, the father of the appellant herein. When the predecessor of the appellant came to know that in conveyance deed executed by the custodian, the passage pertaining to property no. XV/5327 of which he is owner has been shown, as passage to property no. XV/5326, he filed an objection before the custodian. The said objection was rejected. Subsequently, he preferred an appeal before the deputy custodian general, evacuee property, New Delhi. The appellate authority found that the passage shown in the conveyance deed in fact pertains to property no. 5327 but the respondent has right of passage over the said passage. In that view of the matter the deputy custodian issued a direction that the passage shall be excluded from the conveyance deed, but the respondent shall have right of passage. Aggrieved, the respondent preferred a revision before the chief settlement commissioner, but the said revision was dismissed. Thereafter, the said orders were challenged by means of a petition under Article 226 of the Constitution before the High Court. The High Court held that the respondent shall have only an easementary right of passage over the said portion of passage. This judgment attained finality between the parties. Not contended with that, the respondent filed a suit in the civil court for recovery of possession among other reliefs. Amolak Singh contested the suit and one of the pleas taken in the written statement was that in view of section 46 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Act), the suit is not maintainable. The trial court held that the matter has already been adjudicated upon under the Act and, therefore, the civil court has no jurisdiction to decide the suit. Aggrieved, the respondent preferred an appeal before the first appellate court. The first appellate court was of the view that the dispute between the parties can be gone into by the civil court and in that view of the matter, the appeal was allowed and the decree of the trial court was set aside and the matter was remanded to the trial court to decide the suit on merits. The appellants herein preferred a second appeal against the judgment of the first appellate court before the High Court but the same was dismissed. It is against the said judgment, the appellants are in appeal before us.
2. Learned counsel appearing for the appellants, urged that in view of the fact that the matter stood finally decided in the proceeding under the Act, the civil court had no jurisdiction to try the suit. We find substance in the argument. Section 46 of the Act reads as under:
“46. Jurisdiction of civil courts barred in certain matters:- Save as otherwise expressly provided in this Act, no civil court or revenue court shall have jurisdiction:-
(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or
(b) to entertain or adjudicate upon any question whether any person is or is not an intending evacuee; or
(c) to question the legality or any action taken by the custodian general or the custodian under this Act; or
(d) in respect of any matter which the custodian general or the custodian is empowered by or under this Act to determine.”
3. It is not disputed that respondent claimed ownership of the passage on the basis of a registered conveyance deed executed by custodian in his favour, wherein the passage was shown as a part of the property no. XV/5326. In the said proceeding, it was held that the respondent has only easementary right of passage, but he is not owner of the passage. In that view of the matter, this question could not have gone into in a suit by the civil court. The order passed by the chief settlement commissioner was challenged by means of a petition under Article 226 of the Constitution of India, wherein it was held that the respondent has only easementary right of passage and he is not the owner of the passage. In that view of the matter the proceeding under the Act, having attained finality, it was not open to the civil court to adjudicate upon the same issue over and over again in a suit brought by the respondent. We are, therefore, of the view that the first appellate court and second appellate court committed error in holding that civil court had jurisdiction. We, therefore, set aside the judgment under challenge.
4. The appeal is allowed. There shall be no order as to costs.
1. Property nos. XV/5326 and XV/5327 were originally owned by one Indra Devi. Prior to 1947 Indra Devi sold the property no. XV/5326 to Newaz Khan. After partition of the country Newaz Khan migrated to Pakistan. Consequently, the property no. XV/5326 became an evacuee property. However, the said property was being occupied by ~4~ Niranjan Lal Malhotra. Since Niranjan Lal Malhotra was occupant of the said property, the custodian department transferred the said property in his favour by a registered conveyance deed. In the conveyance deed, the passage to reach the main road was also shown in property no. XV/5326. The other property no. XV/5327 was sold by its owner Indra Devi to one Amir Khan. Subsequently, Amir Khan sold the said property to Amolak Singh, the father of the appellant herein. When the predecessor of the appellant came to know that in conveyance deed executed by the custodian, the passage pertaining to property no. XV/5327 of which he is owner has been shown, as passage to property no. XV/5326, he filed an objection before the custodian. The said objection was rejected. Subsequently, he preferred an appeal before the deputy custodian general, evacuee property, New Delhi. The appellate authority found that the passage shown in the conveyance deed in fact pertains to property no. 5327 but the respondent has right of passage over the said passage. In that view of the matter the deputy custodian issued a direction that the passage shall be excluded from the conveyance deed, but the respondent shall have right of passage. Aggrieved, the respondent preferred a revision before the chief settlement commissioner, but the said revision was dismissed. Thereafter, the said orders were challenged by means of a petition under Article 226 of the Constitution before the High Court. The High Court held that the respondent shall have only an easementary right of passage over the said portion of passage. This judgment attained finality between the parties. Not contended with that, the respondent filed a suit in the civil court for recovery of possession among other reliefs. Amolak Singh contested the suit and one of the pleas taken in the written statement was that in view of section 46 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Act), the suit is not maintainable. The trial court held that the matter has already been adjudicated upon under the Act and, therefore, the civil court has no jurisdiction to decide the suit. Aggrieved, the respondent preferred an appeal before the first appellate court. The first appellate court was of the view that the dispute between the parties can be gone into by the civil court and in that view of the matter, the appeal was allowed and the decree of the trial court was set aside and the matter was remanded to the trial court to decide the suit on merits. The appellants herein preferred a second appeal against the judgment of the first appellate court before the High Court but the same was dismissed. It is against the said judgment, the appellants are in appeal before us.
2. Learned counsel appearing for the appellants, urged that in view of the fact that the matter stood finally decided in the proceeding under the Act, the civil court had no jurisdiction to try the suit. We find substance in the argument. Section 46 of the Act reads as under:
“46. Jurisdiction of civil courts barred in certain matters:- Save as otherwise expressly provided in this Act, no civil court or revenue court shall have jurisdiction:-
(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or
(b) to entertain or adjudicate upon any question whether any person is or is not an intending evacuee; or
(c) to question the legality or any action taken by the custodian general or the custodian under this Act; or
(d) in respect of any matter which the custodian general or the custodian is empowered by or under this Act to determine.”
3. It is not disputed that respondent claimed ownership of the passage on the basis of a registered conveyance deed executed by custodian in his favour, wherein the passage was shown as a part of the property no. XV/5326. In the said proceeding, it was held that the respondent has only easementary right of passage, but he is not owner of the passage. In that view of the matter, this question could not have gone into in a suit by the civil court. The order passed by the chief settlement commissioner was challenged by means of a petition under Article 226 of the Constitution of India, wherein it was held that the respondent has only easementary right of passage and he is not the owner of the passage. In that view of the matter the proceeding under the Act, having attained finality, it was not open to the civil court to adjudicate upon the same issue over and over again in a suit brought by the respondent. We are, therefore, of the view that the first appellate court and second appellate court committed error in holding that civil court had jurisdiction. We, therefore, set aside the judgment under challenge.
4. The appeal is allowed. There shall be no order as to costs.
