Khwaja Khaliluddin and Others vs Custodian Evacuees Property

This application for issue of a writ certiorari, mandamus or prohibition is directed against an appellate order of the Additional Custodian, Evacuee Property, Hyderabad confirming the order of the Senior Assistant Custodian Legal. Under it the Applicant''s objection regarding the declaration of house No. 846/5/B Kattalmandi, Hyderabad as evacuee property was rejected. It would appear that prior to the proceedings which gave rise to the present application, the same house was declared as evacuee property by the Assistant Custodian on the basis of adverse possession of the evacuee and that order was reversed by this Court under a writ certiorari. Subsequent thereto the evacuee sent to the Custodian a registered sale-deed in his favour and the proceedings for declaration were re-started by the department. The Assistant Custodian invited fresh objections. He went into a number of pleas taken by the Applicant and decided all of them against him. The principal points which were considered by the Evacuee Property Courts were:

(i) Whether it was open to the Senior Assistant Custodian after the order of the High Court to start declaration proceedings afresh and, (ii) Whether the sale-deed operated to convey title to the evacuee.

On the first question both the Senior Assistant Custodian and the Additional Custodian to whom the matter was taken up in appeal came to the conclusion that the objectors'' plea could not be given effect to and on the second head of objector it was observed that in view of the registered sale-deed and the pleas takes by the parties it must be held that the title passed to the vendee. At one stage the Applicant desired to be given the right to prove that the sale-deed was not acted upon but his claim in this behalf after being considered on merits was rejected on the ground that Section 92, Evidence Act, did not permit the production of oral evidence for setting aside a registered document of title. It is urged that the view taken by the Senior Assistant Custodian and the Additional Custodian on the above points is wrong and that neither the Assistant Custodian nor the Additional Custodian had the jurisdiction to commence proceedings for declaring the property as evacuee property in view of the earlier order passed by the High Court.

We have heard the learned Counsel for the Applicant on this point and are satisfied that there is no defect of jurisdiction. It is difficult to hold that the decision of this Court on the previous writ application could operate to debar the Senior Assistant Custodian from issuing a further notice to the Applicants to show cause why the property should not be deemed to be evacuee property on the basis of the new title which was discovered later. This is no legal basis for the application of the rule or the doctrine of Res Judicata nor is there anything to support the contention that the jurisdiction to make a further declaration was taken away either expressly or by necessary implication. It has been repeatedly held by the Supreme Court that the provisions of Article 226 of the Constitution can be utilised only in those rare cases where the subordinate tribunals or bodies act wholly without or in excess of jurisdiction or where they refuse to exercise jurisdiction possessed by them. The present case does not fall under any of those categories. We may add that there is no complaint about any violation of the principles of natural justice.

We wish to emphasize that the jurisdiction to issue writs does not enable High Courts to convert themselves into Courts of Appeal and to examine for themselves the correctness of the decisions impugned on questions of fact or questions of law or to decide afresh as to what view should have been taken of the points at issue between the parties by those who are made responsible by the legislature to decide the dispute. The jurisdiction conferred by Article 226 is not an alternative mode of redress to the normal process of litigation. The powers exercised under it are only intended to meet those extraordinary cases, where but for the exercise of those powers grave and serious injustice would be occasioned to the Applicants on account of the disregard of either the fundamental rights or of the jurisdiction conferred by law on judicial or other tribunals or of the principles of natural justice or where the orders are otherwise ultra vires.

The decision which is sought to be set aside does not suffer from any of these defects. The application must therefore fail. Notice to the Custodian Evacuee Property need not be issued. We reject the application summarily.