N.K. Kapoor, J.
1. This judgment shall dispose of the writ petition as well as R.S.A. Nos. 1787 and 1788 of 1993.
2. Petitioner has sought issuance of a writ of Certiorari to quash order dated 26.11.1984, annexure P-2, passed by respondent No. 2 and order dated 4.11.1985, annexure P-5, passed by Custodian General-respondent No. 1 or for issuance of any other writ, order or direction which the Court may deem fit and appropriate in the circumstances of the present case.
3. As per averments made in the petition, one Dilawar Khan son of Umar Khan, a resident of village Nai, Tehsil Ferozepur Jhirka, District Gurgaon was owner of land in village Nai, Dilawar Khan mortgaged with possession land measuring 18 kanals 1 marla with Phool Khan son of Imam Khan in lieu of Rs. 1,100/- on 2.4.1953. It was an oral mortgage. Mutation No. 2242 was sanctioned by the Assistant Collector II Grade, Annexure P-1.
4. Dilawar Khan mortgaged another parcel of land measuring 9 kanals 9 marlas in favour of Rehmat son of Jagroop-respondent No. 4 by a registered mortgage deed in lieu of a sum of Rs. 500/- on 31.10.1953. Phool Khan son of Imam Khan died and the property was inherited by Lina, his son-respondent No. 3. The petitioner purchased land measuring 28 kanals 2 marlas from Dilawar Khan, the original owner for a consideration of Rs. 16,000/- vide sale deed dated 7.8.1980, which is in possession of respondents No. 3 and 4. Respondent No. 3 filed an application before Tehsildar (Sales)-cum-Assistant Custodian-respondent No. 2 stating therein that land purchased by the petitioner was an evacuee property as he had purchased it from Dilawar Khan after sending for him from Pakistan. Consequently, respondent NO. 2 issued notice to the petitioner and after holding an enquiry passed order annexure P-2 dated 26.11.1984 holding the property to be an evacuee hidden property and so directed Naib Tehsildar to record the above landed property as evacuee property in the revenue papers. He further directed that Kaneungo (Sales) should also record an entry in the property register that it is a hidden evacuee property. Feeling aggrieved by this order petitioner filed a revision petition which was dismissed by the Custodian General vide order dated 4.11.1995. Petitioner thus seeks quashing of the aforesaid two orders, annexures P-2 and P-5, terming these to be wholly without jurisdiction, illegal, ultra-vires of the Constitution, void abinitio and against the principles of natural justice and equity and thus unsustainable in the eyes of law.
5. Pursuance to the notice of motion issued by the Court, State counsel on behalf of respondents 1 and 2 and Mr. C.B. Goel, Advocate, on behalf of respondents 3 and 4 put in appearance and sought time to file reply to the petition. A joint written statement has been filed on behalf of respondents 1 and 2. Counsel for the respondents 3 and 4 made a statement to the effect that he adopts the written statement filed on behalf of respondents 1 and 2.
6. Respondents No. 1 and 2 vide their written statement raised some preliminary objections as well as controverted the various material averments made in the petition on its merit as well. By way of preliminary objection, it was stated that question now raised as to whether Dilawar Khan migrated to Pakistan or not is purely a question of fact which has been decided by the competent authorities holding that Shri Dilawar Khan infact migrated to Pakistan on partition of the country. Such a question cannot be agitated again in the writ petition as per decision of the Full Bench reported as Guru Nanak University v. Dr.(Mrs.) Iqbal Kaur Sandu and Ors., A.I.R. 1976 P&H; 69. Secondly, the petitioner has no right, title of interest in the land in dispute nor has any locus standi to file the presents suit. Thirdly, the petition is liable to be dismissed for non-joinder of Union of India as a necessary party. Replying on merit, it was stated that Dilawar Khan migrated to Pakistan at the time of partition of the country and the mortgage set up is a made up affair and bogus one. Since Dilawar Khan migrated to Pakistan all rights and title in the land vested in Custodian and the same became evacuee property. Thus, the mortgage is void and honest in the eyes of law and does not bind the government in any manner. Similarly, the respondent Nos. 1 and 2 in their written statement stated that sale in favour of the petitioner is not only illegal but void abinitio. There is ample evidence on record which clearly proves that Dilawar Khan migrated to Pakistan at the time of partition of the country and infact came to India in the year 1980 when the transaction of sale was executed. Since Dilawar Khan had no right, and sale deed executed by him does not confer any right upon the petitioner.
7. Challenging the orders, annexure P-2 and P-5, learned counsel for the petitioner argued that the same are wholly without jurisdiction, illegal and also against the principle of natural justice and fair play. Elaborating, the counsel urged that as per Section 7-A of the Administration of Evacuee Property Act no property can be declared to be an evacuee property on or after the 7th day of May, 1954. This property admittedly had not been declared to be an evacuee property and so the proceedings initiated by respondent No. 2 were wholly without jurisdiction. Respondents No. 1 and 2 erred in law in not setting aside this order in its revisional jurisdiction. Contesting the conclusion arrived at by the authorities below that Dilawar Khan had migrated to Pakistan, the counsel urged that same stand belied in view of entries in the revenue record relating to the execution of two mortgage deed on 2.4.1953 and 31.10.1953 and the subsequent registration of the sale deed by the same person in favour of the petitioner on 7.8.1980. Authorities for no valid reason have ignored these two documents. According to the counsel as per annexure P-1, copy of the mutation sanctioned by the revenue authorities pursuance to an oral mortgage executed by Dilawar Khan, it has been specifically mentioned in note appended upon the copy of the mutation No. 2242 the area is not evacuee - parties have not gone to Pakistan. Sd/- Sewa Ram, Patwari'. As regards the other mortgage deed dated 31.10.1953 the same is a registered mortgage and it is inconceivable that such a document can be fabricated or forged. Not only this, the subsequent execution of sale deed in favour of the petitioner on 7.8.1980 further corroborates the stand of the petitioner that Dilawar Khan is a citizen of India and he did not migrate to Pakistan. Since the very basis of invoking its power were missing on these proved facts, the orders passed by the authorities are nonest.
8. Counsel for the private respondents on the other hand urged that order passed by the authorities are according to law. Taking support from the judgment of the Additional District Judge in these two appeals, it was stated that precise point which are now being agitated have been finally determined by the Court on the basis of evidence led by the parties in support of their respective contentions. The Additional District Judge after perusing the evidence led before the trial Court affirmed the finding of the trial Court that Dilawar Khan had migrated to Pakistan at the time of partition of country in the year 1947. Support was taken from non-production of list of voters which could show Dilawar Khan to be one of the voters of the village, non-production of ration card and the fact that as per deposition of Subhash Chand DW1 and Satbir Singh DW2 Dilwar Khan visited Gurgaon from Pakistan on visa No. F-1268/1/80 dated 24.4.1980 which was valid for a period of 60 days on 25.6.1980. Visa had to expire on 28.8.1980. There was entry about his landing in Gurgaon on 25.6.1980 and his leaving for Pakistan on 21.8.1980. Not only this though the petitioner set up his case before the civil Court that Dilawar Khan is now living in Calcutta no attempt was made to produce him despite opportunities granted by the Court. Thus, on the basis of evidence the Court came to the conclusion that Dilawar Khan migrated to Pakistan. Examining the plea of the petitioner that the property in dispute was not an evacuee property in terms of Section 7-A of the Act, the Court while agreeing with the counsel for the petitioner that there could be no automatic vesting after 7th day of May, 1954, however, took support from a notification of 10.9.1965 and held that property of such persons too vest in the Custodian. Almost identical findings have been recorded by respondent NO. 2-Tehsildar (Sales)-cum-Assistant Custodian, which are perfectly legal and just. It was thus urged that the petition as well as the regular second appeals are devoid of merit and so be dismissed. None put in appearance on behalf of Respondents 1 and 2.
By way of reply, the learned counsel for the petitioner dilated upon the notification referred above and argued that the same has no applicability on the short ground that the same deals with vesting of enemy property which is not the case of either of the parties. Similarly, the respondents cannot question the sale deed in favour of the petitioner as they too are in possession of the property (claiming themselves to be the mortgagees with possession) on the basis of mortgage deeds dated 2.4.1953 and 31.10.1953 executed by Dilawar Khan.
9. Dilawar Khan migrated to Pakistan at the time of partition of the country or remained in India is the first question which is being contested. Petitioner seeks support from the two mortgage deeds and the sale deed executed by Dilawar Khan. Entries with regard to the execution of mortgage deeds, one oral and the other registered, duly finds recorded in the revenue papers. Similarly, there is a sale deed executed by Dilawar Khan. Superficially considered one is prima-facie inclined to accept these as correct but when closely scrutinized the same disclose quiet a different picture. Both the mortgage deeds as well as sale deed were subject matter of consideration before the civil Court in the two suits filed by the petitioner seeking redemption of the land mortgaged by Dilwar Khan. The Court framed issues as per pleadings of the parties and after carefully examining the oral as well as documentary evidence came to the conclusion that Dilawar Khan migrated to Pakistan in the year 1947 and thus he had no saleable interest in the property subject matter of sale deed. Resultantly, the petitioner the plaintiff had no locus standi to file the suit for redemption of the land. Dealing with the plea of the plaintiff-the petitioner that presence of Dilawar Khan at the time of registration of sale deed is proved and also the fact that two separate mortgage deeds have been executed by him, the Court came to the conclusion that no doubt Dilawar Khan executed this sale deed but as per evidence on record he came to Gurgaon from Pakistan on a visa dated 24.4.1980which was valid for 60 days on 25.6.1980. It is during this period of his stay in India that sale deed was executeed by him in favour of the plaintiff-the petitioner. However, the Court came to the conclusion that there is no evidence to support the plea of the petitioner-the plaintiff that he had been residing in India. Finding of the civil Court has not been demonstrated by the petitioner to be unwarranted or otherwise unsustainable in law. No meaningful arguments have been advanced by the counsel for the petitioner which could persuade this Court as well as Tehsildar (Sales)-cum-Assistant Custodian and Custodian General, respondents No. 2 and 1 respectively. The Full Bench judgment in Guru Nanak University's case (supra) has held that 'the jurisdiction in a writ of certiorari is normally confined to facts alleged and admitted on affidavits or those not seriously traversed on record. It is an extraordinary remedy resorted to when the basic factual position is not in dispute. Thus, it has to be kept in mind that the writ jurisdiction is not and cannot be made a substitute for regular trial by way of suit for determination of contentious matters in which the parties are diametrically opposed on material facts'. In the present case, the precise points which are being convassed in this petition already stand settled by the civil Court. Petitioner has also challenged the jurisdictioin of the authorities holding the property to be an evacuee property. It is the case of the petitioner that property in dispute had not been declared to be an evacuee property till 7th May, 1954 and so as per provisions of Section 7-A of the Administration of Evacuee Property Act, no property can be declared to be an evacuee property on or after the 7th day of May, 1954, this way the jurisdiction exercised by Tehsildar (Sales)-cum-Assistant Custodian and affirmation of his order by the Custodian General are nonest. Admittedly, the property in dispute had not been declared to be an evacuee property. Infact, this is also not the case of the respondents 1 and 2. On the contrary the stand of respondents No. 1 and 2 is that on migration of Dilawar Khan the property stood automatically vested in the Custodian. Since this fact was not to the knowledge of respondents No. 1 and 2 and which came to their notice only when an application was filed by respondent No. 3, so such a property could be appropriately described to be an evacuee hidden property and so would vest in the Custodian. According to the respondents as per Section 4 of the East Punjab Evacuee (Administration of Property) Act, 1947 such a property is deemed to have vested in the Custodian. As per Section 8 Sub clause 2-A of the Administration of Evacuee Property Act, 1950 any property which is purported to have vested as evacuee property irrespective of any defect or invalidity of any law, judgment, decree or order is deemed to have validly vested in that person as if the provisions of such law had been enacted by Parliament. The apex Court in Animunnissa and Ors. v. The Deputy Custodian, Evacuee Properties, District Deoria and Ors., AIR 1961 S.C. 365 examined the effect of such vesting Under Section 8, Sub-clause 2-A of the Administration of Evacuee Property Act and held as under:-
'The effect of Section 8(2-A) is that what purported to have vested Under Section 8(2) of the Administration of Evacuee Property Ordinance XXVII of 1949 and which is to be deemed to be vested Under Section 8 of the Act which repealed that Ordinance, notwithstanding any invalidity in the original vesting or any decree or order of the Court shall be deemed to be evacuee property validly vested in the Custodian and any order made by the Custodian in relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validate (1) what purports to be vested; (2) removes all defects or invalidity in the vesting or fictional vesting Under Section 8(2) of the Act which repealed the Ordinance; (3) makes the decrees and judgments to the contrary of any Court in regard to the vesting ineffective; (4) makes the property evacuee property by its deeming effect; and (5) validates all orders passed by the Custodian in regard to the property.
The word 'purport' has many shades of meaning. It means fictitious. What appears on the face of the instrument; the apparent and not the legal import and therefore any act which purports to be done in exercise of a power notwithstanding that the power is not exercisable. Purporting is therefore indicative of what appears on the face of it or is apparent even though in law it may not be so this means that at the time when at Act purported to vest the property in dispute in the Custodian even though the power was not exercisable, Section 8(2A) by giving a retrospective effect to Section 8(2) of the Act makes the vesting as if it was vesting Under Section 8(2) of the Act and therefore the attack on the ground of invalidity cannot be sustained.'
10. In a subsequent judgment reported as Hall Esmail Noor Mohammad and Ors. v. Competent Officer, Lucknow and Ors., A.I.R. 1967 S.C. 1244, the aforesaid view was reiterated. Thus, in view of the settled position, the property, which escaped the authorities at the crucial time has rightly been described to be a hidden evacuee property. This being so, Dilawar Khan had no right or title to sell or create any charge in respect of the property owned by the Custodian and so any such deed or deeds are thus nonest and ineffective qua the rights of the department. It would be worth pointing out that petitioner in support of his plea that Dilawar Khan retained his right of ownership made reference to the oral mortgage deed dated 2.4.1953 wherein a note had been appended by the Patwari Halqa stating therein that it is not an evacuee property and that parties have not gone to Pakistan. Execution of this document is not free from doubt. Neither a certified copy of the mutation has been placed on record nor any person was examined to prove its authenticity. Even otherwise Patwari Halqa had no authority to opine that land in dispute is not an evacuee property nor state that parties have not gone to Pakistan. This note appears to be either added afterwards or written with some extraneous consideration. The Civil Court rightly held the mortgage deeds to be not genuine documents. Resultantly, the inescapable conclusion is that Dilawar Khan could neither create any charge nor sell the property and so these transactions are nonest and do not affect the valuable rights of respondent No. 1. At this stage the objection of petitioner's counsel that the learned Additional District Judge erred in placing reliance upon notification dated 10.9.1965 issued under the Defence of India Rules, 1962 needs to be examined.
11. Additional District Judge while agreeing with the contention of appellant's counsel that this property did not vest in the Custodian as per Section 7-A of the Administration of Evacuee Property Act, held that despite it, such a property would still vest in government in view of notification dated 10.9.1965, which read as:-
'In exercise of the powers conferred by Sub-rule (1) of Rule 133-V of the Defence of India Rules, 1962, the Central Govt. hereby orders that all immovable property in India, belonging to or held by or managed on behalf of all Pakistani Nationals, shall vest in the Custodian of Enemy Property for India with immediate effect. Nothing in this notification shall apply to any such property, belonging to Or held by or managed on behalf of such of the Pakistani nationals as re-employed in the different Missions of the Government of Pakistan in India.'
12. This notification is under the Defence of India Rules, 1962. A bare perusal of it reveals that it deals with the vesting of enemy property. Since in the present case Dilawar Khan migrated to Pakistan at the time of partition of the country in 1947 so, this objection of petitioner's counsel has merit and the learned Additional District Judge erred in placing reliance upon the notification, Yet the ultimate conclusion arrived at by both the Courts is faultless, based upon appreciation of evidence-oral as well as documentary-which is not vitiated in any manner.
13. Thus, where as respondent No. 1 is the owner of the property it 'being a hidden evacuee property possession of respondent No. 3 and 4 can be termed to be unauthorised (as mortgage deeds too have been held by the Court to be invalid documents). Accordingly, respondents No. 3 and 4 have also no right to stay upon the land any further. Custodian General is at liberty to initiate any appropriate steps to recover the possession of this hidden evacuee property' against respondents No. 3 and 4 according to law.
14. Resultantly, finding no merit in this petition as well as in the regular second appeals, the same are ordered to be dismissed.