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Sunday, November 18, 2018

Non existance of document can not be declared as void = Once it is held that no sale certificate issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee Property, under the 1950 Act is forthcoming nor any entry in the official register is found in that regard, all persons claiming through him (including the appellant) must suffer the consequences of such a finding of fact. Notably, respondent No.4 (Md. Sattar @ Mokhan) has not claimed right in respect 17 of the suit property in any other capacity, and in that view of the matter, we fail to understand as to how Md. Sattar @ Mokhan, or any person claiming through him, could be permitted to question the validity of the sale certificate dated 7th August, 1965 issued by the Managing Officer in favour of respondent No.3 (Mainmum Nissa @ Kumani). 13. The appellant had placed emphasis on the finding rendered in the civil suit filed by the husband of respondent No.3, for permanent injunction against respondent No.4 (Md. Sattar @ Mokhan). However, we agree with the concurrent view taken by the authority concerned that the said finding will be of no avail to the appellant. For, respondent No.3 was not impleaded as a party in the said suit. 14. Suffice it to observe that the appellant, having failed to produce the sale certificate in favour of respondent No.4 (Md. Sattar @ Mokhan) issued by the Custodian of Evacuee Property under the 1950 Act, he cannot be heard to raise the issue of jurisdiction of the Managing Officer to deal with the subject property, including the validity of the sale certificate 18 issued in favour of respondent No.3. A deeper enquiry as to how the Managing Officer assumed jurisdiction to issue the sale certificate in favour of respondent No.3 would become relevant and essential only if the appellant was able to substantiate the fact, at least prima facie, that the suit property was, in fact, transferred in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee Property under the 1950 Act.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6384 OF 2010
Mahendra Pratap Dubey …..Appellant
:Versus:
Managing Officer, Evacuee Property & Ors. ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal takes exception to the judgment and order
dated 26th February, 2007 passed by the High Court of
Judicature at Allahabad in Civil Misc. Writ Petition No.30158
of 1995, whereby the writ petition filed by the appellant
challenging the decision of the Chief Settlement
Commissioner, Board of Revenue U.P. at Lucknow was
rejected. The Assistant Custodian/Managing Officer (Evacuee
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Property), Board of Revenue, Lucknow had allowed the
application filed by respondent No.3 - Mainmum Nissa @
Kumani, W/o Subrati @ Algu, R/o Village Singramau, Tehsil
Shahganj, District Jaunpur, U.P., accepting her claim that she
was occupying the suit property as owner thereof, having
purchased the same at a public auction and in furtherance
whereof a certificate of sale came to be issued in her favour
and that respondent No.4 - Mohd. Sattar @ Mokhan (through
whom the appellant claims his right, title and interest in the
suit property) was causing obstruction to her possession in
the suit property on the basis of some fictitious sale certificate
dated 30th September, 1968.
2. Be it noted that the statutory authorities and the High
Court have concurrently found that Ram Abhilakh (through
whom the appellant claims to have acquired title in the suit
property), to whom notice was issued by the authority and
opportunity was given to produce the official record in his
possession to substantiate that he had acquired title in the
suit property pursuant to a transfer by the Custodian in
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favour of Md. Sattar @ Mokhan, failed to do so. He avoided
filing any document. Further, there was no record or any entry
in the official register to show that any sale certificate was
issued in favour of Md. Sattar @ Mokhan by the concerned
department.
3. On the other hand, it has been concurrently held that
respondent No.3 had produced a certificate of sale dated 7th
August, 1965 in her favour issued by the competent authority
in reference to an auction conducted on 12th July, 1962, at
which she purchased the subject property. Further, there was
nothing to discredit the documents and the testimony of
respondent No.3 that she had acquired right, title and interest
in the suit property by virtue of a certificate of sale in her
favour. Such finding has been recorded by the first authority
vide judgment and order dated 4th May, 1985 and confirmed
by the Collector, District Jaunpur, by dismissing the appeal
preferred by the appellant bearing Case No.8/1984/522
decided on 7th October, 1988 and further upheld by the Chief
Settlement Commissioner, Board of Revenue, Lucknow, U.P.,
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being the revisional authority, by dismissing the revision of the
appellant bearing Revision No.1(RR) No./1988-89) District
Jaunpur, decided on 5th August, 1995. The High Court,
therefore, declined to interfere in exercise of its writ
jurisdiction and dismissed the writ petition preferred by the
appellant vide impugned judgment and order.
4. The moot question agitated by the appellant before the
concerned authorities and up till the High Court, was that the
Managing Officer, appointed under the Displaced Persons
(Compensation and Rehabilitation) Act, 1954 had no
jurisdiction to determine the validity of a sale certificate
issued by the Custodian of Evacuee Property in exercise of the
powers conferred upon him under Section 10(2)(o) of the
Administration of Evacuee Property Act, 1950. This
contention, however, did not find favour with either the
authorities or the High Court in view of the findings of fact
recorded against the appellant. The appellant was neither able
to assail the concurrent findings of fact recorded by the
authorities before the High Court nor did he produce the
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original sale certificate dated 30th November, 1968 purportedly
issued in favour of respondent No.4 (Md. Sattar @ Mokhan),
who had transferred the property to one Shri Vishwanath S/o
Kukhekahar who in turn transferred the same to Ram
Abhilakh S/o Parmananad, R/o Shahganj, District Jaunpur,
from whom the appellant claims to have acquired the same.
5. In the present appeal, the appellant has contended that if
an Indian citizen had left India to live in Pakistan, his property
would become an evacuee property as defined in Section 2(f) of
the 1950 Act; and whence the Custodian alone would have the
power under Section 10 of the 1950 Act to transfer such
property in the manner prescribed by the 1950 Act. Further,
such evacuee property could indeed be acquired under Section
12 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954 by the Central Government,
consequent to which the property would lose the status of an
evacuee property and the Custodian would be divested of its
power to deal with the same. That property would then become
a part of the compensation pool as envisaged under Section 14
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of the 1954 Act and only thereafter, could the Managing
Officer assume control or authority over the same and dispose
it of in the manner specified under Section 20 of the 1954 Act.
On facts, it has been argued on behalf of the appellant that
respondent No.3 admits that the property is an evacuee
property and has not claimed that it is a compensation pool
property. For, in the suit filed by the husband of respondent
No.3 (Subrati), being suit No.520/1982, it was asserted that
the evacuee property has been auctioned off to respondent
No.3 by the Custodian; but in the subject application dated
30th April, 1982 field before the Managing Officer, respondent
No.3 claims that the suit property was purchased in an
auction and consideration amount was deposited in the office
of the Managing Officer and the sale certificate dated 7th
August, 1965 came to be issued in her favour by the Managing
Officer. Similarly, in the counter affidavit filed before this
Court, respondent No.3 had claimed that the property was
transferred to her by the Managing Officer. In substance, the
argument is that respondent No.3 has taken a contradictory
7
stand before different authorities and courts, which must
militate against her.
6. The contesting respondent, on the other hand, would
contend that regard being had to the concurrent finding of fact
recorded by the authorities concerned and also upheld by the
High Court, the sole issue raised by the appellant about the
jurisdiction of the Managing Officer does not merit any
interference. An abstract debate bereft of any proof produced
by the appellant to establish that the suit property was
transferred to respondent No.4 (Md. Sattar @ Mokhan) by the
Custodian in terms of sale certificate dated 30th November,
1968, does not merit examination. The question whether such
a sale certificate was issued and, in fact, exists, could certainly
be examined by the Managing Officer before whom the subject
application dated 30th April, 1982 was filed by respondent
No.3, by virtue of the enabling provision in Section 19 and the
bar of jurisdiction of the civil courts in terms of Section 36 of
1954 Act. In such an enquiry, all aspects were open including
to determine as to whether the sale certificate issued in favour
8
of respondent No.3 by the office of the Managing Officer, is
valid. It is submitted that all the authorities including the
High Court have concurrently found that the sale certificate
issued in favour of respondent No.3 in respect of suit property
dated 7th August, 1965 was genuine and valid. Furthermore, it
has been concurrently found against the appellant that
despite sufficient opportunity, his predecessor-in-title Ram
Abhilakh S/o Parmanand did not produce any document; nor
did respondent No.4 (Md. Sattar @ Mokhan), through whom he
(appellant) had claimed right, title and interest in the suit
property, produce the original transfer document issued by the
Custodian to prove the genuineness of the transaction and
further there was no record or any entry in the official register
evidencing that any sale certificate was issued in favour of
respondent No.4 (Md. Sattar @ Mokhan) by the department. In
that view of the matter, the question of law sought to be
agitated by the appellant about the authority of the Managing
Officer to decide the matter in issue concerning the sale
certificate issued by the Custodian of Evacuee Property under
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the 1950 Act would be tenuous and the Court should not
enter upon that issue.
7. We have heard Mr. Anurag Dubey, learned counsel
appearing for the appellant and Ms. Meenakshi Kalra, learned
counsel appearing for the respondents.
8. Indisputably, the respondent No.3 had filed an
application before the Assistant Custodian/Managing Officer
(Evacuee Property), Board of Revenue, Lucknow, which
highlighted two aspects. First, that it be declared or directed
that she had acquired right, title and interest in the suit
property by virtue of the sale certificate dated 7th August, 1965
issued by the Managing Officer. Second, the claim of
respondent No.4 (Md. Sattar @ Mokhan) that the suit property
was transferred in his favour by virtue of a sale certificate
dated 30th November, 1968, issued by the Custodian is nonexistent
and not genuine.
9. Respondent No.3 in the subject application had asserted
that she had purchased the suit property at a public auction
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held on 12th July, 1962; and after payment of the sale
consideration in the office of the Managing Officer, a certificate
of sale was issued in her favour on 7th August, 1965. To
buttress this submission, reliance has been placed by
respondent No.3 - Mainmum Nissa @ Kumani on (i) Receipt
issued by the Office of the Regional Settlement Commissioner,
U.P., accepting the consideration amount paid by her, (ii)
Acceptance Letter issued by the Assistant Custodian,
Government of India, dated 10th June, 1965, and (iii)
Certificate of Sale issued under the signature of the Managing
Officer, Varanasi. The said documents read thus:
“Annexure -R2
EVACUEE SIRAI
FORM NO.1
OFFICE OF THE REGIONAL SETTLEMENT COMMISSIONER
UTTAR PRADESH
Srl. No. 4209 Receipt No.30
Dated: 12.7.62
Received from Mst. Maimunnisha alias Kumman, 170/-
(Rupees One hundred seventy only) by cash on account of
rent / licence fee / licence money in respect of / as earnest
money for KacchaKhander house of Evacuee Sirai in Village
Sgramau, Teh. Shahganj, Jaunpur.
Previous Receipt No. Dated
Note: Where payment is made by cheque and the cheque is
dishonoured by the bank, the receipt will be rendered in
valid.
H/B (highest bid) 1700/-
11
Sd/ (illegible)
12.7.62
Jr. Accountant
Subject to the approval of higher authorities”
“Annexure R-3
Form No. IX
ACCEPTANCE LETTER
GOVERNMENT OF INDIA
MINISTER OF REHABILITATION
Office of the Assistant Custodian
District Varanasi
Dated: 10.6.1965
Smt. Maimun Nisha alias Kumman w/o Subrati alias
(illegible) Shahganj, Jaunpur.
Subject: Sale Kaccha House Khander,
Situated at: Sigramau, Shahganj, Jaunpur.
Evacuee: Sirai
You are hereby informed that you bid dated 12 July, 1962
for Rs. 1700/- for the above noted property, has been
accepted. You are further required to send by pot or to
produce before the undersigned a treasury challan for the
deposit of balance money of sale price amounting to
Rs.1530/-, under Central head “S-Deposits and Advances –
Part IV Suspense Accounts – P.A.O. Suspense – Transactions
Adjustable with Pay and Accounts Office, Rehabilitation
Delhi – Finally Adjustable by P.A.O. under the Head S –
Deposits and Advances – Part II Deposits not bearing
Interest – IVIL Deposits – Personal Deposits – Deposits on
Account of Un-acquired Evacuee Property”, within 15 days
from the date of issue of this letter.
Sd/-
(B.B. VERMA)
Assistant Custodian”
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“Annexure R-4
GOVERNMENT OF INDIA
MINISTRY OF REHABILITATION
OFFICE OF THE MANAGING OFFICER
VARANASI
APPENDIX XXII
CERTIFICATE OF SALE
(Free Hold Property)
Rule 90(15)
Dated:7.8.1965
This is to certify that Smt. Maimun Nisha alias Kamman w/o
Subrati resident of Sigramau, Shahganj, Jaunpur having
given the highest bid at a sale by public auction held in
pursuance of the powers conferred upon me under Section
20 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954 (44 of 1954) on the 12th day of July
1962 of the properly described in the Schedule and his bid
having been accepted and the valid thereof having been paid
by him in cash/ by adjustment of compensation due on his
and his associates claims has been declared the purchaser of
the said property with effect from 25th day of June 1965.
Given under my hand and seal of my office this 26th June of
1965.
SCHEDULE
Kaccha House Khander EVACUEE
Sigramau, Evacuee Sirai Sale price 1700/-
Shahganj, Sirai
Jaunpur
East – House of Jokhu& Field
West – House of Gaya Dargai
North – Road
South – House of Dase
Sd/-
(B.B. Verma)
Managing Officer
Varanasi”
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10. From the acceptance letter, it is noticeable that it has
been issued under the signature of one B.B. Verma, Assistant
Custodian and the same person issued a certificate of sale in
his capacity as Managing Officer. It must be kept in mind that
the application was moved by respondent No.3 and not by the
appellant or any of his stated predecessor(s)-in-title. In that
situation, the enquiry into the application ought to be limited
to the fact as to whether the documents relied upon by
respondent No.3 before the authority, to claim that she had
acquired right, title and interest in the suit property as a
consequence of issuance of certificate of sale, were genuine.
Neither the appellant nor his predecessor-in-title has
challenged the validity of the said official documents issued in
favour of respondent No.3 before the concerned authority or
otherwise. In the proceedings initiated by respondent No.3,
because of the stand taken by her that respondent No.4 (Md.
Sattar @ Mokhan) was also claiming right, title and interest in
the suit property by virtue of a sale certificate issued in his
favour by the Custodian, notices were issued by the competent 
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authority to him as well as Vishwanath S/o Sukhi and Ram
Abhilakh S/o Parmanand to evoke their response. Despite
opportunity given by the competent authority, they failed to
produce any document, much less original documents,
evidencing that the Custodian had issued a sale certificate in
respect of the suit property in favour of respondent No.4 (Md.
Sattar @ Mokhan).
11. The appellant as well as respondent No.4 having failed to
produce any original document and since there was no record
or entry in the official register to show that such a sale
certificate was issued in favour of respondent No.4 (Md. Sattar
@ Mokhan) by the Department, as concurrently found by the
authorities, it must follow that their claim in respect of the
suit property remained unsubstantiated. In other words, the
appellant has not been able to establish any causal connection
with the suit property either on account of allotment of the
suit property to him or his predecessors, by the competent
authority or otherwise. The Assistant Custodian on analysing
the factual position in its judgment observed thus:
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“I have gone through the file and found there is no such
documents have been filed by the objector whose
genuineness can be examined except the objection which
has been filed on behalf of O.P. Sri Ram Abhilakh stating
that this tribunal has got no jurisdiction to examine the
genuineness of sale certificate that which one is correct out
of these two documents.
In this regard I have to mention that this has been the
consistent view of the higher tribunal under the O.P. (C & P)
Act No. 44 of 1954, that in a case in which the nature of
each complaint is that some forged deeds have been reported
to have been issued by the Assistant Castodian/Managing
Officer the said officer can meet enquiries and can ask the
person concerned to produced the relevant papers to
examine their veracity find out if any such deed was at all
issued. In this connection a copy of order of Sri Prem Narain,
Settlement Commissioner (Judicial) passed on 11.10.76 in
appeal No.14/SC/PN/U/70,SriMohd. Shamim Vs. Managing
Officer, Lucknow was filed as an examper, in which it has
been held that the Managing Officer can certainly look into
the matter on receipt of complaint and can pass appropriate
order on that basis. Accordingly, the parties were directed to
produce relevant papers, the applicant Smt. MaimunNissa
filed the original & photo copy of receipt of earnest money,
acceptance letter dt. 10.6.65 and the sale certificate dt.
7.7.65 referred to above, and supported her contention on
affidavit. Sri Ram Abhilekh did not produce any document
and also did not produce Sri Mohd. Satar @ Mohkan the
alleged original transferred from the custodian to prove the
genuineness of the transaction. On the other hand the
evaded to file the documentation the plea that the same
cannot be looked into by the tribunal; which as stated above
can always be looked in this circumstances of the case.
In the absence of any papers or evidence of Sri Ram
Abilekh the matter was examined with the available
records.
The connected file shows that first the house was put to
sale on 16.3.62 when the bid of Smt. Amina was the
highest for Rs.1210/- and an amount of Rs.121/- was
deposited but subsequently for non deposit the balance
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money the sale was cancelled and the earnest money
deposited was forfeited.
It further seems from the documents filed that the house
was put to sale on 12.7.82 and it was knocked down in
favour of MaimunNissa, who deposited Rs.170/- as
earnest money and on receipt of acceptance letter
dt.10.6….. she deposited the balance sale consideration
money on 26.6.65 and thereafter the certificate of sale
was issued in her favour on 7.7.65 by Sri B.B. Verma,
Managing Officer, Varanasi. I have seen the original
documents. There is nothing to discredit the said
documents and the testimony of Smt. MaimumNissa.
There is no record in the office or any entry in the office
register to show that any Sale Certificate was issued in
favour of Mohd. Sattar @ Mohkan by this department.
The sale certificate issued in favour of Smt.
MaimunNissa is accordingly held valid.”
(emphasis supplied)
12. This finding of fact and conclusion came to be affirmed
by the Appellate Authority as well as the Revisional Authority
for which reason the High Court declined to interfere. Once it
is held that no sale certificate issued in favour of respondent
No.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee
Property, under the 1950 Act is forthcoming nor any entry in
the official register is found in that regard, all persons claiming
through him (including the appellant) must suffer the
consequences of such a finding of fact. Notably, respondent
No.4 (Md. Sattar @ Mokhan) has not claimed right in respect 
17
of the suit property in any other capacity, and in that view of
the matter, we fail to understand as to how Md. Sattar @
Mokhan, or any person claiming through him, could be
permitted to question the validity of the sale certificate dated
7th August, 1965 issued by the Managing Officer in favour of
respondent No.3 (Mainmum Nissa @ Kumani).
13. The appellant had placed emphasis on the finding
rendered in the civil suit filed by the husband of respondent
No.3, for permanent injunction against respondent No.4 (Md.
Sattar @ Mokhan). However, we agree with the concurrent
view taken by the authority concerned that the said finding
will be of no avail to the appellant. For, respondent No.3 was
not impleaded as a party in the said suit.
14. Suffice it to observe that the appellant, having failed to
produce the sale certificate in favour of respondent No.4 (Md.
Sattar @ Mokhan) issued by the Custodian of Evacuee
Property under the 1950 Act, he cannot be heard to raise the
issue of jurisdiction of the Managing Officer to deal with the
subject property, including the validity of the sale certificate 
18
issued in favour of respondent No.3. A deeper enquiry as to
how the Managing Officer assumed jurisdiction to issue the
sale certificate in favour of respondent No.3 would become
relevant and essential only if the appellant was able to
substantiate the fact, at least prima facie, that the suit
property was, in fact, transferred in favour of respondent No.4
(Md. Sattar @ Mokhan) by the Custodian of Evacuee Property
under the 1950 Act. Accordingly, this appeal must fail.
15. In view of above, the appeal is dismissed with costs.
…………………………..….J.
 (A.M. Khanwilkar)
…………………………..….J.
 (Dr. D.Y. Chandrachud)
New Delhi;
November 16, 2018.