Harbans Lal and Another vs Tulsi Ram

Chopra, J.—An identical question of law on which their decision rests, is involved in those two petitions for revision and, therefore, they can be disposed of by one judgment.

Tulsi Ram sold a piece of agricultural land to Qadir Bakhsh for Rs. 800 by a registered deed dated 23-4-1991). On 11-7-1999 he also sold another piece of land for Rs. 500 to Jamal Din. The Petitioners Harbans Lal and Sukhdarshan Lal, sons of Tulsi Ram, brought two separate suits for possession of the lands alleging that they formed a joint Hindu family with their father and that the sales effected by Tulsi Ram as manager were not for family necessity. During the pendency of the suit the vendees migrated to Pakistan and their properties vested in the Custodian for Evacuee Property. Both the suits were dismissed by the trial Sub-Judge on the ground that u/s 23 of Ordinance 13 of 2006 no civil Court could entertain a suit for any relief with regard to evacuee property. The Plaintiffs'' appeals to the District Judge met with the same fate and on the same ground. They have now presented these two petitions out of which No. 5 of 2006 relates to the alienation in favour of Qadir Bakhsh and No. 9 of 2006 in favour of Jamal Din.

The learned Counsel for the Petitioner contends that Section 23 of the Ordinance which was promulgated when the suits had already been instituted only debarred the civil Courts from entertaining any suit regarding an evacuee property. According to him this did not take away the jurisdiction of the Courts to decide cases which had already been instituted and consequently already entertained by the Courts. I need hardly go into the question as to what the Legislature meant by using the word entertain in this section because this Ordinance was repealed and taken place of by another Ordinance before the suit was decided by the Sub-Judge. The repealing Ordinance is XVII of 2006, published in the Patiala Gazette of 16-4-2006, and its Section 3(1) is to the following effect:

Save as otherwise expressly provided in this Ordinance no Civil Court shall have jurisdiction to entertain or adjudicate upon any question whether any evacuee property is or is not an evacuee property or whether an evacuee has or has not any right or interest in evacuee property.

As the section now reads the jurisdiction of the Civil Courts is barred both as regards entertaining or adjudicating upon matters referred to therein. The contention of the learned Counsel that the Ordinance should not be given a retrospective effect and applied to cases which were already pending, is obviously without any substance. The language of the section itself leaves no doubt that it was meant to take away the jurisdiction of the Civil Courts to decide the particular matters even though they were involved in cases which had already been instituted. It is within the competency of the Legislature to give retrospective effect to a statute and that has been expressly done in this case.

Lastly it is urged that the suits did not fall within the mischief of the section as the Plaintiffs only wanted the sales to be set aside and declared void so far as their interests in the property were concerned. This however could not be done without adjudicating upon the rights or interests of the evacuees in the property. Section 2(d) of the Ordinance defines evacuee property to mean any property in which an evacuee has any right or interest or which is held by him under any deed of trust, or other instrument. Qadir Bakhsh and Jamal Din had admittedly left this Union for places outside the territories now forming part of India and, therefore, they were evacuee u/s 2(c) of the Ordinance. The two evacuees held the lands because of the sales in their favour and consequently the property in the suits must be termed as ''Evacuee Property.

The Plaintiffs disputed the rights of the evacuees to retain possession of the lands on the basis of the sales and for the disposal of the suits it was necessary to adjudicate upon the rights or interests of the evacuees in the evacuee property. It had to be decided whether the sales in favour of the evacuees created any right in them or whether the sales were void or voidable for the reasons stated by the Plaintiffs and this was expressly barred by the section I am, therefore, of opinion that the cases clearly fell u/s 3(1) of the Ordinance and that the civil Courts had no jurisdiction to hear them.

In the result the petitions are dismissed. In view of the point of law involved the parties are directed to bear their own costs.