Mohd. Taiyab and Others vs State of U.P. and Others

Amreshwar Pratap Sahi, J.—Heard learned Counsel for the Petitioners who submits that the findings on fact as well as law are all erroneous, inasmuch as, there is a total non-consideration of the impact of Section 18 of the Administration of Evacuee Property Act, 1950, and even on facts the trial court did not record any finding that the father of the Petitioners was not a citizen of India.

The contention raised is that the law of succession would govern the issue and the Petitioners have every right to succeed to the property of their late father.

The background of the case is that admittedly the Petitioners'' father did go to the Pakistan after partition and in Paragraph 5 of the writ petition it has also been stated that the father of the Petitioners Gulam Jilani went to Pakistan during the life time of Faiyaz Ali the grandfather of the Petitioners. Faiyaz Ali was the last recorded tenure holder and after his death, during consolidation operations, the name of his sons including the father of the Petitioners came to be entered in the revenue records. However, it appears that on account of the departure of the Petitioners'' father to Pakistan, his name was scored out and the custodian enemy property was entered into the revenue records along with other co sharers .

According to the Petitioners, their father died in 1994. In the year 1996, the Naib Tehsildar of the area concerned, called upon the Petitioners to vacate the land as it was entered as an enemy property and then the Petitioners woke up to contest the matter. Nonetheless, ultimately the Petitioners in the year 2002, filed a suit u/s 229-B of the U.P. Z.A. & L.R. Act, 1950, seeking declaration of their rights on the ground that they have succeeded to the estate of the deceased father by virtue of the provisions of the U.P. Z.A. & L.R. Act.

The trial court framed several issues including the issue relating to the departure of the Petitioners'' father to Pakistan and also with regard to the claim of possession by the Petitioners. The trial court after having discussed the evidence that was led by the Petitioners both oral and documentary came to the conclusion that the evidence relating to the possession was not satisfactory and therefore the title merely on the basis of oral testimony of possession of the Petitioners cannot be accepted. On the issue relating to the status of the Petitioners'' father the finding recorded is that the property was ancestral, yet on account of the departure of the Petitioners'' father to Pakistan, the same was declared as enemy property, and accordingly, the custodian was entered into the revenue records. It was also found that the custodian continues to be in management over the said land by virtue of the said entry.

Aggrieved, the Petitioners went up in appeal before the learned Commissioner and the same was also dismissed on 28.2.2011 by affirming the finding recorded by the trial court. The second appeal that was filed has been summarily dismissed on the ground that since no substantial question of law arises therefore it is not desirable to entertain the appeal.

Assailing the aforesaid judgment and decree of the courts below, the present writ petition has been filed, contending that all the courts below have committed manifest error by declining relief to the Petitioners on the basis of the claim as staked before the trial court.

Learned Counsel for the Petitioners Sri Akhtar Ali has relied on a Division Bench judgment of this Court in the case of Allahuddin and Ors. v. Union of India and Ors., 2010 (1) ARC 153 to submit that the custodian has only temporary custody of the property and he only manages the same as such it cannot be said that the Petitioners were divested of their rights under the U.P. Z.A. & L.R. Act, and hence, in view of the ratio therein, there was a substantial question of law that arose which ought to have been framed by the Board of Revenue and having not done so the impugned order is vitiated. A supplementary affidavit has been filed bringing on record the memo of appeal as also the statement of the witnesses and the voter identity card to support the contentions so raised.

It is true that this might be an unfortunate case where the father of the Petitioners departed from this country without visualizing the controversy of succession that was inevitable. Nonetheless, so far as the Petitioners are concerned they could only succeed on the basis of the claim provided the property did not stand divested from their father.

In the instant case, the Petitioners'' father went to Pakistan and the Petitioners did not lead any evidence to the contrary to establish that he otherwise continued to be a citizen of this country. The Petitioners'' father also did not contest the entry of the custodian that had already been made and was very much in existence during his life time. This is evident from the Khatauni extracts which have been relied on by the Petitioners themselves. It is therefore clear that the Petitioners'' father himself did not contest the status of enemy property as recorded in the revenue records. The Petitioners'' father died in the year 1994 according to their case and there was no reason as to why the Petitioners should have waited till the year 2002, to file the suit. In such a situation, the filing of the suit itself after such a long period and at such a belated stage also does not entitle the Petitioners for any relief.

So far as the issue relating to Section 18 of the 1950 is concerned, the same would operate, provided, the evidence was led to that effect. The contention of the Petitioners appears to be based on mere oral evidence without there being any documentary support to that effect. The finding recorded by the trial court is that the receipts of the irrigation which were filed did not clearly indicate as to whether such irrigation receipts were in relation to the same plots as was being contested by the Petitioners.

So far as the issue relating to the status of the custodian is concerned, the decision relied upon in the case of Allahuddin and Ors. v. Union of India and Ors. (supra) by the learned Counsel for the Petitioners, clearly recites that in that case there was already an order passed by the High Court in a writ petition that was filed against the order of the custodian and had been dismissed. On facts, therefore the said authority is clearly distinguishable and does not come to the aid of the Petitioners.

In view of the conclusions drawn hereinabove, I do not find any merit in the petition, the same is hereby dismissed.