Gujarat High Court
Collector vs Memon Bai Ayesha Aba Since Decd.Thro Her … on 8 July, 2026
NEUTRAL CITATION
C/SA/37/2008 JUDGMENT DATED: 08/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 37 of 2008
FOR APPROVAL AND SIGNATURE:
Hon'ble MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
✓
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COLLECTOR
Versus
MEMON BAI AYESHA ABA SINCE DECD. THRO HER HEIRS
& ORS.
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Appearance:
MR. CHIRAGKUMAR UPADHYAY, ASSISTANT GOVERNMENT
PLEADER for the Appellant(s) No. 1
MR. AMAR D. MITHANI(484) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5
RULE SERVED for the Respondent(s) No. 2
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CORAM:Hon'ble MR. JUSTICE MAULIK J. SHELAT
Date : 08/07/2026
JUDGMENT
1. The present second appeal is filed under Section 100 of the
Code of Civil Procedure, 1908 (hereinafter referred to as
“CPC“), against the judgment and decree dated 30.03.2007
passed by the Presiding Officer, Fast Track Court, Junagadh in
Regular Civil Appeal No. 102 of 1995, whereby, it has
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confirmed the judgment and decree dated 09.08.1990 passed by
the Senior Civil Judge, Junagadh in Regular Civil Suit No. 3 of
1979.
2. The appellant herein is original defendant No. 2, whereas the
respondent No. 1 is original plaintiff and respondent No. 2 is
original defendant No. 1. It appears that during the pendency
of this appeal, the respondent No. 1 – original plaintiff died and
her legal representatives were brought on record.
3. For the sake of convenience, hereinafter, the parties will be
referred to as per their original status in the suit.
4. SHORT FACTS:
4.1. That the suit property situated at Cha-Bazar, Mangrol Town,
consisting of three shops with an upper storey, was originally
owned by one Memon Musa Hussain Chhapra by virtue of
Lakh No.145/99 dated 24.06.1929. It is the case of the plaintiff
that Memon Musa Hussain Chhapra, a Halal Memon, died
about 65 years prior to the institution of the suit, leaving
behind his only son, namely, Ibrahim Musa Chhapra.
Thereafter, Ibrahim Musa Chhapra also died about 45 years
prior to the institution of the suit, leaving behind his widow,
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Bai Fatma, and his only daughter, Bai Mariyam.
4.2. It is further the case of the plaintiff that, in accordance with the
customary law governing succession and inheritance applicable
to Halal Memons, who were governed by Hindu Law in
matters of succession and inheritance, Bai Fatma inherited the
suit property as the widow and sole heir of Ibrahim Musa
Chhapra. Bai Fatma continued to reside at Mangrol till the
year 1958 and thereafter migrated to Pakistan, where she
expired in or about the year 1959. Upon her demise, her
daughter, Bai Mariyam, succeeded to the suit property on
22.09.1959.
4.3. According to the plaintiff, Bai Mariyam, through her Power of
Attorney holder, executed a registered sale deed dated
07.10.1961 in favour of Bai Ayesha Aba, thereby transferring
the suit property. It is the case of the plaintiff that, till the
execution of the said sale deed, the suit property had not been
declared as enemy property and, therefore, Bai Ayesha Aba
became the absolute owner thereof.
4.4. It is further the case of the plaintiff that, in the year 1971, she
came to know that the suit property had been declared as
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enemy property. She, therefore, instituted Regular Civil Suit
No.459 of 1973 before the Court of the Civil Judge (Senior
Division), Junagadh, against the Union of India and the State
of Gujarat. The said suit came to be decreed by judgment and
decree dated 24.01.1978, wherein Bai Ayesha Aba was declared
to be the lawful owner of the suit property. It was further held
that the directions issued to the Collector, Junagadh, and the
Mamlatdar, Mangrol, for recovery of rent in respect of the suit
property were illegal, contrary to the principles of natural
justice, and void. According to the plaintiff, no appeal was
preferred against the said judgment and decree and, therefore,
the findings recorded therein attained finality and operated as
res judicata between the parties.
4.5. After hearing the parties, the Trial Court decreed the suit in
favour of the plaintiff, whereby it declared that the action of
defendant No. 2 being taken under Section 8(2) of the
Administration of Evacuee Property Act, 1950 (hereinafter
referred to as “the Act 1950”) and the impugned notice dated
15.03.1978 and the order passed thereon on 31.05.1978,
whereby, it has declared the suit property as evacuee property,
were illegal, unauthorized, without jurisdiction, null and void
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and passed in contravention of Section 7 of the Act, 1950.
Consequently, the defendants were directed to hand over the
possession of the suit property in favour of the plaintiff.
4.6. Feeling aggrieved and dissatisfied with the judgment and decree
passed by the Trial Court, the defendants preferred Regular
Civil Appeal No. 102 of 1995 before the Appellate Court,
Court vide its impugned judgment and decree, dismissed the
said appeal.
4.7. The present Second Appeal is filed by defendant No. 2 only
against the impugned judgment and decree passed by the
Appellate Court. This Court, vide its order dated 07.07.2008,
has admitted this Appeal upon framing the following
substantive questions of law:
“ADMIT.
The following substantial questions of law arise in this appeal.
[1] The learned Appellate Judge (Regular Civil Appeal No. 102/93)
ought to have considered that as per the provisions of Section
8(1)(a) is very clear, that leave or left any par in the State or part
of India, as per this provision properties automatically vested in
Custodian and therefore, no notice was required to be given by
the custodian to declared such property as evacuee property?
[2] The learned appellate Judge ought to have considered that
when as per the provision, of the Act, the property is deemed to
have been vested in Custodian as evacuee property, no sale deed
could be made for the said property or as Power of Attorney asPage 5 of 25
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there was no legal right of the original plaintiff as the property was
vested in the Government?”
SUBMISSION OF THE APPELLANT-DEFENDANT NO.2:
5. Mr. Chiragkumar Upadhyay, learned Assistant Government
Pleader, in support of this appeal, has made the following
submissions:
5.1. The courts below have committed a serious error in law by not
appreciating the fact that the suit property was enemy property
purchased by the plaintiff on 07.10.1961 by way of registered
sale deed and as per Section 8(2) of the Act, 1950, such
property is deemed to be an evacuee property. The courts
below have not appreciated the provisions of the Act, 1950 in
proper perspective, rather committed a jurisdictional error by
assuming the jurisdiction to decide the lis between the parties.
5.2. The impugned judgment and decree passed by the court below
is without jurisdiction, as per Section 46 read with Section 28 of
the Act, 1950, no civil court has jurisdiction to decide the
dispute in regards to whether the suit property was an evacuee
property or not.
5.3. The plaintiff has failed to substantiate his claim by leading
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evidence and has not proved on record that until the year 1957-
58, Bai Fatma, who happens to be original owner of the suit
property and migrated to Pakistan, was residing in India. The
plaintiff has failed to prove on record that until the year 1954,
said Bai Fatma was residing in India; rather, as per impugned
notice dated 15.03.1978 issued by the defendant No. 2, said Bai
Fatma was already migrated to Pakistan prior to the year 1952.
Thus, the suit property became an evacuee property as per
Section 8, sub-section 2 read with sub-section 2A of the Act,
1950.
5.4. Once, it is proved on record that the person concerned has left
India prior to the year 1954, as per the provisions of the Act,
1950, property of such person is deemed to have been vested in
the Custodian as evacuee property.
5.5. The sale deed executed in favour of the plaintiff by the Power
of Attorney holder of daughter of said Bai Fatma, i.e.,
Mariyamben, was executed in Pakistan and on the basis of
such power of attorney, the sale deed was registered on
07.10.1961 in favour of the plaintiff, then such sale is not valid
in law and the plaintiff could not have derived title.
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SUBMISSIONS OF THE RESPONDENTS-PLAINTIFF:
6. Per contra, Mr. Amar D. Mithani, appearing for the
respondent-plaintiff, has vehemently opposed this appeal by
making the following submissions.
6.1. This appeal is filed against the concurrent findings of fact and
as such, the impugned notice and order passed by the
defendants were without jurisdiction and correctly quashed and
set aside by the Civil Court.
6.2. The Civil Court has jurisdiction to decide the lis between the
parties, inasmuch as no proceeding under Section 7 of the Act,
1950 was initiated by the defendant authorities prior to
07.05.1954, then the impugned notice dated 15.03.1978 and the
impugned order passed thereon on 31.05.1978 are correctly
held to be illegal.
6.3. It is undisputed fact that no proceedings initiated by defendant
No. 2 under Section 7 of the Act, 1950 and there is nothing on
record to show that any other authority under any other law
for time being in force at any time declared the suit property as
evacuee property prior to impugned notice/order. It was
incumbent upon defendant authorities to produce such
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evidence in support of their case that suit property was declared
as evacuee property, but having failed to submit any such
evidence, merely on the wrong and erroneous premise, they
issued impugned notice, which ultimately resulted into perverse
and without jurisdiction order passed by defendant No. 2 on
31.05.1978.
6.4. The courts below have correctly placed reliance upon the
earlier judgment passed by Civil Court on 24.01.1978 in a suit
filed by the plaintiff being Civil Suit No. 459 of 1973, wherein,
it has been specifically observed that suit property has not been
declared as evacuee property. As far as claim of the defendants
that it was enemy property, the same was also quashed and set
aside and accordingly, the plaintiff was declared to be owner of
the suit property.
6.5. The claim of defendants is also barred by principle of res
judicata, as in earlier round of litigation, in the aforesaid suit, it
was already declared by the Civil Court that suit property was
not declared as evacuee property. Rather, it has been observed
as recorded in the impugned judgment that as per the oral
evidence of the Power of Attorney holder of Bai Mariyum
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examined in the earlier suit, that Bai Fatma died about one
and half year after she went to Pakistan in the year 1957-58.
6.6. The impugned notice and order passed by defendant authority
were without jurisdiction and suit property having not declared
as evacuee property prior to its issuance, in view of the Section
7A of the Act, 1950, the defendants’ authority had no right and
power to declare the suit property as evacuee property vide its
said impugned order. In such circumstances, the Civil Court
has jurisdiction to decide such issue. The issue is no longer res
integra as squarely covered by decision of the Hon’ble Apex
Court in the case of Dr. Rajendra Prakash Sharma V/s. Gyan
Chandra and others, reported in (1980) 4 SCC 364.
6.7. No other and further submissions are being made.
7. Though served none appeared for the respondent No.2-original
defendant No.1.
ANALYSIS AND REASONS:
8. At the outset, it is profitable to first refer the decision of the
Constitution Bench of the Hon’ble Supreme Court of India in
the case of Sir Chunilal V. Mehta And Sons Limited Versus
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Century Spinning And Manufacturing Company Limited,
reported in AIR 1962 SC 1314 ; 1962 (0) AIJEL-SC 5258,
wherein, the scope and ambit of the second appeal was
succinctly discussed, and as such ratio of the said binding
decision still holds the field. It has been held thus:
“3. The next question is whether the interpretation of a document of the
kind referred to above raises a substantial question of law. For, Art. 133(1)
provides that where the judgment, decree or final order appealed, from
affirms the decision of the court immediately below in any case other than a
case referred to in sub-cl. (c) an appeal shall be to this Court if the High
Court certifies that the appeal involves some substantial question of law. To
the same effect are the provisions of sec. 110 of the Code of Civil Procedure.
In the old Judicial Commissioner’s Court of Oudh the view was taken that a
substantial question of law meant a question of general importance.
Following that view its successor, the Chief Court of oudh, refused to grant
a certificate to one Raghunath Prasad Singh whose appeal it had dismissed.
The appellant, therefore, moved the Privy Council for special leave on the
ground that the appeal raised a substantial question of law. The Privy
Council granted special leave to the appellant and while granting it made
the following observation in their judgment:
“Admittedly here the decision of the Court affirmed the decision of
the Court immediately below and, therefore, the whole question
turns upon whether there is a substantial question of law. There
seems to have been some doubt, at any rate in the old court of Oudh,
to which the present court succeeded as to whether a substantial
question of law meant a question of general importance. Their
Lordships think it is quite clear-and indeed it was conceded by Mr. De
Gruyther-that that is not the meaning but that “substantial question
of law” is substantial question of law as between the parties in the
case involved.”
Then their Lordships observed that as the case had occupied the High Court
for a very long time and on which a very elaborate Judgement was delivered
the appeal on its face raised as between the parties a substantial question
of law. This case is reported in 54 Ind App 126 : AIR 1927 PC 110. What is a
substantial question of law as between the parties would certainly depend
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upon the facts and circumstances of every case. Thus, for instance, if a
question of law had been settled by the highest court of the country the
question of law however important or difficult it may have been regarded in
the past and however much it may affect any of the parties would cease to
be a substantial question of law. Nor, again, would a question of law which
is palpably absurd be a substantial question of law as between the parties.
The Bombay High Court, however, in their earlier decision already adverted
to have not properly appreciated the test laid down by the Privy Council for
ascertaining what is a substantial question of law. Apparently the
Judgement of the Privy Council was brought to their notice for, though they
do not make a direct reference to it, they have observed as follows :
“The only guidance that we have had from the Privy Council is
that substantial question is not necessarily a question which is of
public importance. It must be a substantial question of law as
between the parties in the case involved. But here again it must
not be forgotten that what is contemplated, is not a question of
law alone; it must be a substantial question. One can define it
negatively. For instance, if there is a well established principle of
law and that principle is applied to a given set of facts, that
would certainly not be a substantial question of law. Where the
question of law is not well settled or where there is some doubt
as to the principle of law involved, it certainly would raise a
substantial question of law which would require a final
adjudication by the highest Court.”
One of the points which the learned judges of the Bombay High Court had
to consider in this case was whether the question of the construction to be
placed upon a decree was a substantial question of law. The learned Judges
said in their Judgement that the decree was undoubtedly of a complicated
character but even so they refused to grant a certificate u/s. 110 of the
Code of Civil Procedure for appeal to the Federal Court because the
construction which the Court was called upon to place on the decree did not
raise a substantial question of law. They have observed that even though a
decree may be of a complicated character what the Court has to do is to
look at its various provisions and draw its inference therefrom. Thus
according to the learned Judges merely because the inference to be
drawn is from a complicated decree no substantial question of law
would arise. Apparently in coming to this conclusion they omitted to
attach sufficient weight to the view of the Privy Council that a question
of law is “a substantial question of law” when it affects the rights of
the parties to the proceeding. Further the learned Judges seem to have
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taken the view that there should be a doubt in the mind of the Court as to
the principle of law involved and unless there is such doubt in its mind the
question of law decided by it cannot be said to be “a substantial question of
law” so as to entitle a party to a certificate under S. 110 of the Code of Civil
Procedure. It is true that they have not said in so many words that such a
doubt must be entertained by the Court itself but that is what we
understand their Judgement to mean and in particular the last sentence in
the portion of their Judgement which we have quoted above.
6. We are in general agreement with the view taken by the Madras High
Court and we think that while the view taken by the Bombay High Court is
rather narrow the one taken by the former High Court of Nagpur is too
wide. The proper test for determining whether a question of law raised
in the case is substantial would, in our opinion, be whether it is of
general public importance or whether it directly and, substantially
affects the rights of the parties and if so whether it is either an open
question in the sense that it is not finally, settled by this Court or by the
Privy Council or by the Federal Court or is not free from difficulty or
calls for discussion of alternative views. If the question is settled by
the highest Court or the general principles to be applied in determining
the question are well settled and there is a mere question of applying
those principles or that the plea raised is palpably absurd the question
would not be a substantial question of law.”
(emphasis supplied)
9. It is required to be observed that this Appeal is filed against
concurrent findings of fact recorded by Courts below against
the appellant-defendant No. 2. As per settled position of law,
unless such findings of fact are either perverse or grossly
erroneous or contrary to settle principles of law, this Court
should not exercise its power under Section 100 of CPC and
substitute its opinion for the opinion of the first appellate
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Court. [See – Russi Fisheries (P) Ltd. v. Bhavna Seth, reported
in 2026 SCC OnLine SC 555, & Jaichand (Dead) through Lrs and
Others v. Sahnulal and Another reported in 2024 SCC OnLine SC
3864].
10. Having heard learned Advocates appearing for the respective
parties and upon perusal of impugned judgment and decree
passed by Courts below and after going through the relevant
evidence made available on record, following would emerge:
10.1. The suit property was purchased by plaintiff by way of
registered sale deed on 07.10.1961 from one Latif Hussain, who
happens to be power of attorney holder of Bai Mariyam. It is
not in dispute that Bai Mariyam was daughter of Musa
Hussain Chhapra, who was original owner of suit property
died 60 years prior to institution of suit. Whereas, said Bai
Mariyam married and shifted to Pakistan. The mother of Bai
Mariyam, namely, Bai Fatma, who happens to be wife of
original owner, appears to have become the owner and
according to the case of the plaintiff, stayed in suit property
situated at Mangrol until year 1957-58, then after shifted to
Pakistan, where she died after about one and half years. After
her death, said Bai Mariyam, a sole surviving legal heirs
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became owner of the suit property.
10.2. It is not in dispute that suit property was never declared as
evacuee property, either by defendants or any other authority
prior to 07.05.1954. It appears that prior to issuance of the
impugned notice/order, the defendants, albeit in different
capacity as Custodian of Enemy Property, initiated an action
against plaintiff to recover the possession of the suit property.
Such action was challenged by plaintiff, by way of Civil Suit
No. 459 of 1973 before the Civil Court. Wherein, after hearing
the parties, the Civil Court has decreed the suit in favour of the
plaintiff on 24.01.1978. The Trial Court has specifically
observed in its said decision in paragraph No. 7 while
answering Issues No. 1 and 2 that “Now, admittedly the suit
property has not been declared as evacuee property.” Apart from
such finding recorded, it has referred the evidence of aforesaid
Power of Attorney holder, who deposed before the Court that
Bai Fatma died about one and half years after she went to
Pakistan in the year 1957-58. The witness has specifically
denied the suggestion that Bai Fatma had gone to Pakistan in
the year 1955. It can be noticed from reading paragraph No. 3
of the aforesaid judgment dated 24.01.1978 passed in aforesaid
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suit that in the written statement of the defendants, it has been
averred that Bai Fatma left India for Pakistan in the year 1955.
If such would be the case of defendants, the suit property could
not have been declared evacuee property as indisputably until
the year 1955, Bai Fatma was in India, then as per Section 7A
of the Act, 1950, after 07.05.1954, no property shall be declared
as evacuee property. This would be the reason why, in the
earlier round, the Civil Court has specifically recorded his
finding that suit property has not been declared as evacuee
property. Thus, in light of the aforesaid finding of fact
recorded in earlier round of litigation, such fact and issue
would certainly operate as Res judicata, inasmuch as said
judgment and decree passed by Civil Court in earlier round of
litigation was never challenged by defendants; rather, it was
accepted.
10.3. The courts below have placed reliance upon the earlier decision
of Civil Court between the parties and held that once, in earlier
round, the suit property was not declared to be enemy property
and so also declared that it was not evacuee property, as
principle of Res judicata, the defendants cannot be permitted
to issue impugned notice and/or impugned order is held to be
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without jurisdiction. This opinion is neither contrary to record
nor perverse; rather, I am in complete agreement with such
reasons assigned by courts below.
11. As far as substantial questions of law framed by this Court,
vide its order dated 07.07.2008, are concerned, it is required to
be noted that prior to issuance of impugned notice dated
15.03.1978, none of the authorities either under the Act, 1950
or any other Act for time being in force, at any point of time,
declared the suit property as evacuee property. As per Section
7A of the Act, 1950, after 07.05.1954, no property shall be
declared to be evacuee property. If it be so, there is no reason
to assume that suit property became evacuee property.
11.1. The defendant authorities prior to 07.05.1954 had not taken
any steps and or followed any procedure as prescribed under
Section 7 of Act, 1950, to declare the suit property as evacuee
property. In such set of facts and circumstances, without
following such due process of law, the defendants cannot be
allowed to say that once Bai Fatma left India, suit property
automatically vested in the Custodian and became evacuee
property.
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11.2. Furthermore, even by plain reading of sub-section 2 and 2(A)
of Section 8 of the Act, 1950, is not remotely suggest that by
virtue of such provisions of the Act, 1950, any property can be
automatically vested in the Custodian and can be declared as
evacuee property; rather, sub-section 2A of Section 8 of the
Act, 1950 would suggest that previously any property having
vested as evacuee property in any person exercising power as
Custodian in any State, but there is some defect or invalidity
of, such law and/or judgment, decree or order of any Court, it
deemed for all purposes to have validly vested in that person.
Neither was such order brought to the notice of this Court, nor
was any evidence led by the defendants in this regard before the
courts below.
11.3. Mr. Mithani, learned Advocate, has correctly placed reliance
upon decision of the Hon’ble Apex Court in the case of Dr.
Rajendra Prakash Sharma (supra), and in view of the aforesaid
dictum, the arguments canvassed by Mr. Upadhyay, learned
AGP, cannot be accepted so far as jurisdiction of Civil Court is
concerned. Indisputably, the suit property was never declared
as evacuee property prior to 07.05.1954 by defendants, any
such declaration made by authority subsequent to the said date
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is required to be declared as without jurisdiction and in such
circumstances, the Civil Court has all power to decide the lis
between the parties.
11.4. At this juncture, I would like to quote a few paragraphs of
judgment of the Hon’ble Apex Court in the case of Dr.
Rajendra Prakash Sharma (supra), which read thus:
“22. Then, there is Section 7-A which was inserted by the
Administration of Evacuee Property (Amendment) Act,
1954 (42 of 1954) with effect from May 7, 1954:
“Notwithstanding anything contained in this Act, no
property shall be declared to be evacuee property on
or after the 7th day of May, 1954.”
This is made subject to two provisos. Clause (a) of the first
proviso saves from the application of this section any
property in respect of which proceedings are pending on
the 7th day of May, 1954 for declaring such property to be
evacuee property. Clause (b) of the proviso saves from the
bar of this section property of any person who became an
evacuee on or after March 1, 1947, and who on May 7,
1954 was resident in Pakistan. The second proviso lays
down that no notice under Section 7 for declaring any
property to be evacuee property with reference to clause
(b) of the preceding proviso shall be issued after the expiry
of six months from the commencement of the
Administration of Evacuee Property (Amendment) Act,
1954. Then, there are three Explanations, which are not
material for our purpose.
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23. It is clear from the facts concurrently found in the
instant case that Qazi Abdul Rashid was throughout
residing in India and personally managing the suit property
and collecting its rent till 1963. He migrated or went away
from India for good sometime in 1963 or thereafter.
Therefore, if the Custodian had not taken any
proceedings under Section 7 of the 1950 Act to declare
the suit property as evacuee property before May 7,
1954, and no such proceedings were pending on May 7,
1954, the property of Qazi Abdul Rashid could not be
declared evacuee property under the Act, the power of
the Custodian to do so having been terminated by
Section 7-A.
30. The matter can be looked at from another angle also.
Clauses (a), (c) and (d) of Section 46 postulate that at the
time when the question whether or not a property is
evacuee property comes for adjudication, the power of the
Custodian-General or the Custodian under this Act of 1950
to determine that question is subsisting. That is to say, if at
the point of time when the question arises, the power of
the authorities constituted under this Act to adjudicate
that question stands terminated or extinguished by the
operation of Section 7-A of 1954, none of the clauses
(a), (c) and (d) of Section 46 will bar the jurisdiction of
the civil court to determine that question, which had not
been decided by the Custodian during the period he had
the power to determine it.
31. Section 28 has no application to the facts of the instant
case because no order made by any of the authorities,
mentioned in that section is being called in question.
Section 46, also, does not come in the way because no
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proceedings under Section 7 of the 1950 Act to declare
the suit house an evacuee property were taken by the
Custodian against Qazi Abdul Rashid. No notification
under sub-section (3) of Section 7 published in the Official
Gazette has been placed on the record. Nor was it shown
that any proceedings initiated under Section 7 of the Act to
declare it evacuee property were pending on May 7, 1954,
and the question of saving those proceedings under the
proviso to Section 7-A does not arise.
32. Qazi Abdul Rashid was throughout a resident of India
till 1963 and was personally managing the suit house and
collecting rent of it from the tenant. After May 7, 1954,
therefore, the Custodian had no jurisdiction under the 1950
Act to declare the suit house as evacuee property. The
jurisdiction of the courts below to go into this question
was thus not barred by anything in Sections 28 and 46
of the 1950 Act.”
(Emphasis supplied)
12. Having appreciated the submissions of Mr. Upadhyay, learned
AGP vis-a-vis Mr. Mithani, learned Advocate for the plaintiff,
I am of the considered view that property cannot be deemed to
have vested in defendant No. 2 by virtue of any provision of
the Act, 1950, including Section 8 (2) of the Act, 1950, under
which the impugned notice/order passed by the defendant
No.2. As such, in view of the said decision of the Hon’ble Apex
Court, the substantial questions of law framed in this second
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appeal no longer remain res integra.
13. Thus, in view of the aforesaid pronouncement of law, and
considering the aforesaid facts of the case at hand, as discussed
above, there is no merit in the claim of the defendants. The
substantial questions of law framed by this Court are answered
accordingly.
14. In view of the foregoing observations, discussions, and reasons,
I do not find any merit in this Second Appeal and impugned
judgment and decree passed by courts below are neither
perverse nor grossly erroneous nor contrary to settled position
of law. No interference of this Court is required in the matter.
15. Before parting with this appeal, it is required to be noted that
while granting the stay in favour of appellant – defendant No.
2, this Court, vide its order dated 06.02.2009 passed in Civil
Application (For Stay) No. 2468 of 2008 in Second Appeal No.
37 of 2008, passed the following order:
“Heard Ms. Vandana Bhatt, learned AGP for the applicant.
Backbone of the argument of Ms. Bhatt is that when this Court
has admitted the appeal and substantial questions of law have
been framed by the Court for determination, if judgment and
decree under challenge are kept operative and executable,
remedy taken by the appellant-State is likely to frustrate, andPage 22 of 25
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therefore, effective execution thereof may be stayed. In one of the
orders passed by the learned Civil Judge, the respondent, one of
the occupants of the property has been held entitled to recover
some amount from the government officials, because, as per the
Court the said recovery was illegal and devoid of authority. This
part of the order can be stayed because it is likely to lead to some
hardship and inconvenience to the government.The argument advanced by Mr. Gori, learned counsel appearing
for the opponent has also some force, because, the property has
been forcibly snatched away by the government officials and both
the proceedings; one initiated under the Enemy Property Act and
another under the Administration of Evacuee Property Act have
been quashed in two different sets of litigations. It is relevant to
note that the judgment which has become final in the year 1978
has not been assailed qua proceedings initiated under the Enemy
Property Act. In this background, it will be obligatory on the part of
the appellant State to see that the property in question is
maintained properly and in useful condition so that in the event of
failure on the part of the State in the Second Appeal, the
respondent can be put into possession of the property when the
same is in good useful condition. The government has also sought
for stay of the decree which is in terms of money. Therefore,
government officer of the applicant/appellant is directed to give
surety and undertaking to the trial court so that in the event of
failure, the amount payable to the respondent shall be deposited
by the State in reasonable period of time and the respondent may
not have to undergo lengthy procedure of execution as the
litigation is old by about more than 35 years. Civil Application is
allowed in the above terms. Order and direction accordingly.”
16. Since this Court is not inclined to entertain this second appeal,
the stay granted by this Court vide its aforesaid order is
required to be vacated, which is hereby vacated forthwith.
Consequently, the defendants are directed to hand over the
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vacant and peaceful possession of suit property to the legal
heirs of original plaintiff and the amount due and payable to
the plaintiff shall also be calculated and deposited with the
concerned Trial Court within a period of 90 days from the date
of receipt of copy of this judgment. Upon such deposit of the
amount, the concerned Trial Court shall disburse the amount
in favour of the legal heirs/representatives of the original
plaintiff.
16.1. In any case, if the defendants fail to comply with the aforesaid
direction, it is always open for the legal heirs/representatives of
the original plaintiff to file/initiate execution proceedings
against the defendants in accordance with law. In such
circumstances, the Executing Court shall decide the execution
petition as early as possible, keeping in mind the ratio of
decision of the Hon’ble Apex Court in the case of Periyammal
(Dead) Through Lrs. V/s. V. Rajamani, reported in (2025) 9
SCC 568.
17. In view of the aforesaid, the present second appeal is found
devoid of merit and accordingly, it is dismissed. The judgement
and decree passed by the Courts below is hereby confirmed.
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Interim relief, if any, granted earlier stands vacated forthwith.
The decree shall be drawn accordingly by the Registry of this
Court. R & P be sent back forthwith. No order as to costs.
(MAULIK J.SHELAT,J)
NILESH
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