Shaik Osman v. Union Of India

(1) The petitioner seeks issuance of a writ of mandamus prohioiting the respondents from (evicting the petitioner by use of force and from interfering with the possession and enjoyment of the petitioner in respect of the premises no 5 - 4 - 422/1 situated at the cross roads, namapally, hyderabad.

(2) The petitioner is in possession of the premises bearing municipal door no. 5 - 4 - 422/1 situated at the cross - roads, nanpally, hyderabad, for the last several years, as the tenant of the khader sheriff. While so, an officer of the custodian of evacuee property, new delhi, visited tne permises in the first week of march, 1977. And demanded the petitioner to vacate the premises. He, therefore, filed o. S. No. 735 of 1977 in the court of the viii assistant judge city civil court, hyderabad, on 18th july, 1977 against the union of india represented by the custodian of evacuee property, new delhi, for perpetual injunction. Along with the suit, he filed petition i. A. No. 547 of 1977 for the grant of interim injunction pending disposal of the suit. The learnad assistant judge granted interim injunction. Ultimately the defendant in the suit did not attend the courc even though he received the summons. The court, therefore, passed an ex parte decree granting perpetual injunction against the custodian of evacuee property 01 28th november, 19/8. The tahsildar, hyderabad urban taluk, evicted the petitioner from the premises in question. Now the respondents are trying to evict him by force. Tne 2nd respondent who is the commissioner, survey, settlement and land records and deputy custodian of evacuee property, passed an order on 13th february, 1979 directing the 3rd respondent who is the collector, to evict the petitioner from the premises. The petitioner, therefore, filed this petition contending that the respondents are not acting in accordance with law in evicting him from the premises.

(3) The respondents opposing this writ petition, contend that the premises in the occupation of the petitioner is an evacuee property administered under the evacuee property act, 1970 by the custodian and it is the absolute property of the government. The petitioner is in the occupition of the premises without the orders of the government or permission from the custodian and therefore he is a trespasser the respondents also contend that the claim of the petitioner that he is the enant of khadsr sheriff does not confer on him any statutory rights nor can khader sheriff claim any right of interest in respect of the premises which is an evacuee property in fact khader sheriff filed a suit o. S no. 3 of 1965 in the additional judge's court, city civil court, hyderabad, for declaration of title and injunction against the respondents. But that the court dismissed the suit rejecting the claims of khader sheriff. Khader sheriff himself has no rights whatsoever in the premises in question and since the suit was dismissed, the petitioner also has no rights whatsoever and he is, therefore, treated as no better than a trespasser. The contention of the petitioner that he obtained decree for injunction against the custodian of evacuee property is unsustainable, since the civil court has no jurisdiction to entertain and adjudicate the custodian properties under section 46 of the administration of evacuee property act (xxxi of 1980). As the petitioner is in unauthorised occupation of the premises which is an evacuee property, the respondents are entitled to evict him.

(4) Sri mirza munawar ah beig, the learned counsel for the petitioner, contends that the 2nd respondent has no jurisdiction to pass the order for eviction when the petitioner obtained a decree from the civil court in c. S. No. 735 of 1977 against the custodion of evacuee property and if the respondents have got anv rights whatsoever in the premises in question, they can file a suit for possession or ejectment. He also contendes that the petitioner being a tenant, his rights and interests are protected by the andhra pradesh buildings (lease, rent and eviction) control act and also by the administration of evacuee property act (xxxi of 1950). The learned counsel further contends that since the premises is a comoosite property, the petitioner cannot be evicted by force, that when the property was sold to the 4th respondent, in 1960 itself, it is the 4th respondent who can recover possession from the petitioner in accordance with law and respondents 1 to 3 have no jurisdiction to evict him as they cease to have any interest in the property after the sale which was confirmed in favour of the 4th respondent.

(5) Prom the admitted facts, it is clear that khader sheriff, claiming ownership in respect of the premises in question, filed o. S. No. 3 of 1965 (o. S. No. 580 of 1955) on 4th november, 1957 for declaration of his title and injunction against the respondents; but it was dismissed on 27th novermber, 1978. Hence khader sheriff's claims were rejected by the court. As the petitioner claims to be the tenant of khader sheriff, he cannot have any rights or interests better than that of his alleged landlord. The petitioner, therefore, is rightly treated by the respondent as a trespasser. As the petitioner is a trespasser in respect of the premises in question, the respondents are entitled to eviction.

(6) .but the learned counsel for the petitioner contends that when once the sale was confirmed in favour of the 4th respondent on 1st september, 1960, and sale certificate was given to him on 9th september, 1968 then the 4th respondent alone has to take proceedings for eviction in accordance with law and the respondents 1 to 3 are not entitled to evict him. When the 4th respondent kept quiet all the while from the date of purchase of the property, be has lost title or interest in the same since the petitioner who is admittedly a trespasser, perfected his title by adverse possession.

(7) It is true that the 4th respondent purchased the property on 9th september, 1960 itself and the sale was also confirmed and the sale certificate was issued to him on 9th september, 1968; but from 4th november, 1957 till 27th november, 1978 the suit o s. No. 3 of 1968 filed by khader sheriff was pending. The respondents 1, 2 and 4 were defendants in that suit. When the suit was pending, the defendants viz. , the custodian of evacuee property, andhra pradesh, the competent officer and the purchaser of the property cannot take possession of the property from tht petitioner. Even the sale in favour of the 4th respondent was subject to the result of the suit filed by sheriff in o. S no. 3 of 1965. Hence it is not correct for the petitioner to contend that the 4th respondent slept over all the while even though he obtained the sale certificate on 9th september, 1963. It is only after the disposal of the suit on 27th november, 1978, that the respondents are free to act for taking possession of the premises from the petitioner.

(8) Sri baig contends that merely because possession was not delivered by the 1st and 2nd respondents to the 4th respondent after the sale was confirmed in his favour, it cannot be contended that the 4th respondent is not the owner of the property and when once the sale is confirmed in favour of the 4th respondent, he becomes the owner and hence as owner, he could take proceedings for recovery of possession of the property from the petitioner who is a trespasser and respondents 1 and 2 are not entitled to evict him. N support of this contention, the learned counsel relied upon two decisions of the punjab high court in harichand l. Sharnanal v. Cordhan fairchand vaish and others. Ind hafiz abdul basit v. Abdul alim and others, and also on a decision of the madras high court in s. T. W. Vyravan chettiar v. R. M. Rayalu ayyar nagaswami ayyar and co. Through one of its partners in hari chand sharnamal v. Gordhan das faqir chand vaish and others it was held:

"the fact that the price was not paid at the time of registration is of no consequences. In the absence of a clear common intention to both the parties to a sale that the ownership should not pass until the consideration has been actually paid and the deed of sale registered, the accomplishment of this condition is not essential to the complition of sale. Mere non - delivery of possession or stipulation to deliver possession at a later period does not prevent the sale from being complete"

. In hafizabdul basil v. Abdul alim and others it was held that the title of an auction purchaser becomes perfect not from the date of getting symbolic possession but from the date when the property is sold. The property vests in the purchaser immediately after the sale is confirmed by the court and vesting is not postponed until the grant of certificate. In 5, t. M. Vyravan chettiar v. R m. Rayalu ayyar nagaswami ayyar and co. Through one of its partners it was held that under section 65 civil procedure code where immovable property is sold in execution of a decree and such sale has become absolute, the property would be deemed to have vested in the purchaser from the time the property is sold and from the time when the sale has become absolute. Under this section the vesting of the property does mean to relate back to the date of the sale.

(9) There cannot be any dispute with regard to the proposition of law laid down by the above mentioned decisions. These rulings laid down that ownership passes to the purchaser with the completion of a sale. Merely because sale price was not paid at the time of registration as per the term of a contract. The vendor cannot say that title has not passed to the purchaser and the ownership still subsists with him. The purchaser, is therefore, entitled to claim ownership in respect of the property from the date when the sale was completed. Since the sale is completed, the purchaser is entitled to sue for possession even though, the sale amount was not paid and vendor is not entitled to contend that the purchaser is not entitled to sue for possession on the ground that the sale amount was not paid to him. The same principle will hold good even with regard to an auction - purchaser since his title becomes perfect immediately after sale is confirmed by court, as provided under section 65, civil procedure code. But the above rulings cannot help the petitioner's contention that respondents 1 to 3 are nor entitled to take proceedings for eviction against him for the following reasons.

(10) .from the above stated facts, it is clear that respondents 1 to 3 could not deliver possession to the 4th respondent on account of the pendency of the suit filed by khader sheriff, the land - lord of the petitioner, though the title passed on to the 4th respondent. The 4th respondent is, therefore, entitled to demand delivery of possession in respect of the property from respondents 1 to 3 under section 55 (1) (f) of the transfer of property act which states that in the absence of a contract to the contrary, the buyer and seller in respect of immovable property respectively are subject to the liabilities and have the rights mentioned in the rules next following or such of them as are applicable to the property soldt (1) the seller is bound - (a) to (e) (f) to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits. It is, therefore, clear that the seller is bound to give possession of the property to the buyer. When the vendor is not in a position to give vacant possession of the property sold by him to the purchaser or if the vendor is unable to give vacant possession, the purchaser is entitled, by virtus of section 55 (1) (f) of the transfer of property act and section 39 of the contract act to rescind ths contract and claim refund of the sale amount paid to the vendor. The madras high court in s. Panchapagesa ayyar v. Arunachala mudaliar held that under section 5 (f) of the transfer of property act, if the property is a house, the possession that its nature permits is vacant possesession and in the absence of some proviso, to the contrary in ths sgreement, the transfer of vacant possession is intended. In sashi bhushan v. Raichand it was held that ordinarily in the absence of a contract to the contrary, if the agreement is to sell a house in which the seller has the sale and absolute interest, the possession, that its nature permits delivery of, is vacant possesion. The presence of tenants or trepassers in the house cannot affect the nature of the property, inasmuch as the words "its nature" in section 55 (1) (f) means an incident which is inherent in the property which can be called as its nature

(11) .thus it is clear that in the absence of a contract to the contrary, the purchasers are entitled to rely upon the provisions of section 55 (1) (/) of the transfer of property act and demand vacant possession from the vendor. Till the vacant possession is delivered by respondants ( and 2 in the case on hand to the 1th respondent, respondents 1 and 2 would be in the picture and they are entitled to take call proceedings necessary to evict the petitioner and deliver vacant possession of the property to the 4th respondents.

(12) .under the circumstances, i have no, hesitation to told that there is no substance in the contention raised by the learled counsel for the petitioner if respondents 1 and 2 are bound to deliver vacant possession to the 4th rsspondent of the premises in question, they have to evict the petitioner herein from the premises in his occupation. Thee can do so by reporting to the provisions of section 11 (2) of the evacuee interest (separation) act, 1951 which gives the power to the custodian to cak; vacant possession of the property by evic ing the person in occupation and he may for that purpose, use or cause to be used such force as may be necessary. By virtue of the power given to him under section 11 (2) as stated above, respondent no. 2, the custodian of the evacuee property is entitled to take the assistance of the 3rd respondent to evict the petitioner from the premises question even by using or causing to be used such force as may be necessary, if the petitioner in the occupation of the evacuee property does not surrender or deliver possession of the premises in his occupation when the same was demanded by respondents 2 and 3.

(13) .the learned counsel for the petitioner contends that the petitioner obtained a decree against respondent 1 and 2 in the civil court o. S. No. 735 of 1977 and as such the 2nd respondent is not entitled to avail the benefit of section 11 (2) and if they seek eviction, they have to file a suit for possession and without resorting to sucg legal proceedings through a court of law they are not entitled to evict the petitioner by using force. I find it difficult to accept even this contention, because of the express provision in the evacuee interest (separation) act, 1951 barring the jurisdiction of the civil court. Section 20 of the act provides that save as otherwise expressly provided in the act, no civil or revenue court shall entertain any suit or proceeding in so far as it relates to any claim to composite property which the competent officer is empowered by or under the act to decide and no injunction in respect of any action taken or to bs taken by the competent officer in respsct of the composite property shall bs granted by any civil court or authority and all suits and proceedings pending before a civil court a revenve court at the commencement of this act shall, in so far as they relate to any claim filed before a competent officer under section 7, be stayed during the pendency of any proceeding under the act

(14) From these provisions it is clear that the jurisdiction of the civil court is barred in such cases. If that be so, the decree obtained by the petitioner in o. S. No. 735 of 1977 is without jurisdiction,

(15) .the learned counsel for the petitioner further contends that the sale in favour of the 4th respondent is illegal inasmuch as the petitioner is not impleaded in those proceedings and no notice was given to him as per rule 7 (3) of the evacuee interest (separation) rules.

(16) .it is true that rule 7 (3) of the rules provides that every person having an interest in a composite property, in respect of which a statement of claim is made under section 7 of the act and the custodian of evacuee property, within whose jurisdiction such property is situated, shall be deemed to be respondent to the proceedings and notwithstanding anything contained in the rules, it shall be lawful for the competent officer to act as the respondent to the proceeding in person who in his opinion is interested in the composite property and shall issue a notice to him in form 'b'.

(17) .it is an admitted fact that the petitioner was not given notice under rule 7 (3). But a notice under rule 7 (3) need not be given to a person who has no interest in the composite property. The petitioner is not a person having title or interest in the property. He is only a trespasser. A trespasser is not a person having interest in the property. The petitioner being a trespasser, he cannot be treated as a person interested in the property. He is, therefore, not entitled to claim notice under rule 7 (3) as of right. Further, the petitioner's landlord, khader sheriff claiming to be the owner of the premises in question, filed a snit even for declaration of his title and injunction. It is, therefore clear that he was aware of the proceedings. When the suit of the petitioner's landlord was dismissed, the petitioner has no better rights than those of his landlord. Notice under this rule i? necessary only to enable the petitioner to raise objections or make his claims in respect of the property. When sheriff has laid his claim even by instituting a suit asserting his rights and interests in respect of the premises in question and then his claims were not upheld, no notice is necessary to be given to the petitioner. What holds good for the petitioner's landlord will equally hold good for the petitioner. Hence this contention is unsustainable.

(18) .the next contention of the learned counsel for the petitioner is that property is a composite property and hence the custodian had nothing to do with the same and it is the competent officer that has got jurisdiction to deal with the property and the matter is, therefore, governed by the evacuee interest (separation) act, 1951 and hence the custodian is not entitled to evict the petitioner by use of force. In support of this contention, the learned counsel relied upon the decision of the allahabad high court in etc nawaz khan v. The competent officer, allahabad and others1 in which it was held that the seller is not entitled to take delivery of possession by forcibly rejecting trespasser and the competent officer, though can deliver possession of the property which he sells, is not clothed with the power to evict the person in possession by force on the mere ground that he is a trespasser. It is true that the property was described in the sale certificate as composite property. Under section 4 of the evacuee interest (separation) act, 1951, the state government may, with the approval of the central government, by notification in the official gazette, appoint as many competent officers as may be necessary for the purpose of performing the functions assigned to him by or under the act and the competent officer may perform his functions in such local area or areas as may be specified in the notification. Section 5 deals with jurisdiction of competent officers to decide any claim relating to any composite property situate within the limits of the local area of jurisdiction in such cases or classes of cases as may be by general or special order be transferred to him under section 14 by the ceatral government or appellate officer section 6 provides that for the purpose of determining or separating evacuee property in a composite property, any competent officer having jurisdiction over such property, may either on information received in that behalf from the custodian or on an application from a claimant, issue notice in such form and manner as may be prescribed. Section 7 deals with submission of claims section 8 provides for decision by a competent officer and says that on receipt of a statement of claim under section 7, the competent officer shall, subject to the provisions of sub - sections (2) and (3) , hold an enquiry into the claim in accordance with the procedure laid down under section 17 and pass an order determining the interest of the evacuee and the claimant in the property in question and the order shall contain all or any of the following particulars: (a) to (d) (2) where the custodian under the administration of evacuee property act, 1950, has determined that the property in question or any interest therein is evacuee property, the decision of the custodian shall be binding upon the competent officer. Section 10 says that notwithstanding anything to the contrary in any law or contract or a decree or order of a civil court or other authority the competent officer, may subject to any rules that may be made in this behalf, take all such measures as he may consider necessary for the purpose of separating the interests of the evacuee from those of the claimants in any composite property. Section 11 deals with vesting of evacuee interest in the custodian free from encumbrances and payments etc. , to bs valid discharge from all claims and reads as follows: -

"where in respect of any property; notice under section 6 is issued but no claim is filed or found to exist or where any claim in respect of such property is found to exist and the competent officer separates the evacuee interest therein under section 10, the whole property, or, as the case may be, the evacuee interest in the property thus separated, shall vest in the custodian free from all encumbrances and liabilities and any payment, transfer or partition made or effected under section 10, in satisfaction of any claim in respect of the property shall be a full and valid discharge of all claims in respect of the property. (2) the custodian may take possession of aay such property by evicting the claimant and other persons who may be in occupation thereof and may or that purpose, use or caused to be used such force as may be necessary: provided that the custodian shall not disturb the possession of any person (other than the claimant who was in lawful possession of the property at the commencement of this act and has continued in such possession"

.

(19) .section 18 provides that every order made by any competeut officer or appellate officer shall be final and shall not be called in question in any court by way of an appeal or revision or in any original suit, application or execution proceedings.

(20) .from the above provisions, it is clear that where the custodian under the administration of evacuee property act, 1950 has determined that the property in question or any interest therein is evacuee property, the decision of the custodian as to evacaee pro perty is final unless that order is reversed by the appellate authority. The decision of the custodian given under the administration of evacuee property act shall be binding on th competent officer, for the purpose of separating the interests of the evacuees from those of the claimants in the composite property, the competent officer may take all such measures, as he may consider necessary and in particular may partition the property according to shares of the evacuee and the claimant and deliver possession of the shares allotted to the evacuee and the claimant to the custodian and the claimant respectively (under section 10 (a) (vi)) and may sell the property and distribute the sale proceeds thereof between the custodian and the claimant in proportion to the share of the evacuee and the claimant and deliver posseision of the shares allotted to the evacuee and the claimant in the property (section 10 (a) (iii)).

(21) .the property was declared as evacuee property by the custodian under the administation of evacuee property act, 1950. Hence that decision is binding upon the competent officer under section 10 (2) of the evacuee interest (separation) act. The custodian is therefore, entitled to take proceedings for evicting the trespasser under section 11 (2) of the evacuee interest (separation) act.

(22) .sri tn. L. Ramakrishna rao, contends that when once the property in question was declared by custodian as evacuee property and that decision is binding on the competent officer as per section 8 (2) of the evacuee interest (separation) act, 1951, the custodian is entitled to take proceedings under section 9 of the administration of evacuee property act, 1950, for evicting the trespasser who is occupying the evacuee property. Sri beig, on tends that the provisions of the evacuee interest (separation) act, 1951 are applicable but not section 9 of the administration of the evacuee property act. For the purpose of evicting the petitioner from the premises in question, it does not make any difference if the custodian follows the provisions of section 9 of the administration of evacuee property act or section 11 (2) of the evacuee interest (separation) act as both the provisions give the power to the custodian to use force necessary to evict the trespasser. The provisions uf section 11 (2) of the evacuee interest (separation) act, 1951 give the right and power to the custodian for taking possession of the property and if necessary using force necessary for the purpose. Section 11 makes it clear that after the orders passed by the competent officer separating the evacuee interest, the property so separated shall be vested with the custodian and the custodian can take possession of such property by evicting any person in occupation of the property and he may use or cause to be used such force as may be necessary thus both section 9 of the administration of evacuee property act, 1950 and section 11 (2) of the evacuee interest (separation) act, 1951 give the power to the custodian to take possession of the property by using the necessary force. Of course, under section 9 of the administration of evacuee property act, 1930, the custodian was also given the power to remove or break open the lock, bolt or any door or do any other act necessary for the said purpose after giving reasonable warning and facility to any woman not appearing in public to withdraw from the house. But insofar as the use of force necessary for taking possession of such property is concerned, both the provisions give the power to the custodian. It is true that the allahabad high court in ek nawaz khan v. The competent officer, allahabad and others, observed that

"the seller is liable to deliver possession of the property sold to the buyer under section 54 of the transfer of property act. This does not mean that the buyer can forcibly take possession of the property from the seller or that the seller can forcibly attack a trespasser and then deliver possession to the buyer. The seller or the buyer must take action provided by law for getting possession from trespassers. An auction - purchaser of a composite property is certainly entitled to take possession of the property. But this power alone will not clothe the competent officer, the seller, with the rights to evict a person in unlawful possession unless such a power is conferred on him by the ac"

. The learned single judge also observed that he has not been referred to any provision of the act which specifically empowers the competent officer to deliver actual possession to the auction - purchaser of the composite property. It is also significant to notice in this section that the custodian is given power under section 11 (2) of the act to take forcible possession of the property which vests in him under the pfovisions of subsection (1) of the section and that he has to approach the competent officer for that purpose. The power of the competent officer under section 10 to take all such measures as he may consider for the purpose of separating interests of the evacuee from those of the claimants in any composite property is limited and does not extend to the taking of steps necessary for the actual delivery of the separated interest to persons other than the evacuee and the claimant, i. E. ,, for the delivery of actual possession to the auction - purchaser from the person in unauthorised possession of the property.

(23) .i do not think that this decision of allahabad high court is applicable to the case on hand. In that case, an auction - purchaser approached the competent officer with an application praying for delivery of actual possession of the house in question to him from a receiver appointed for the purpose with police aid. The learned judge has, therefore, felt that in the absence of any such provision giving power to the competent officer to evict a person in occupation of the premises and deliver the same to him the competent officer is not entitled to do so. The learned judge, therefore, observed that the power of the competent officer under section 10 is only to take measures as he may consider necessary for the purpose of separating inteiests of the evacuee interests from those of the claimants in any of the composite property, but nothing beyond that. But in the case on hand, the 4th respondent did not approach the competent officer for delivery of the possession of the property which he purchased. It is only the 2nd respondent, that is the custodian, that is taking steps for effecting delivery of possession in favour of the 4th respondent. The 2nd respondent is given the power under section ii (2) of the evacuee interest (separation) act, 1951 to evict the person in actual possession and deliver the said possession to the auction - purchaser by using the reasonable force in the eviction of the petitioner. In these circumstances, i have to hold that the ruling of the allahabad high court, cited above, does not help the petitioner. Thus, i find no force in the contention of the petitioner's learned counsel on this aspect.

(24) .the learned counsel for the petitioner lastly contends that the petitioner is entitled to be given protection under the andhra pradesh buildings (lease, rent and eviction) control act and the respondents are not entitled to evict him from the premises without following the procedure prescribed under that act. Even this contention is unsustainable. The petitioner, of course, claims to be the tenant of khader sheriff. But as stated above, khader sheriff is found to be having no interest at all in the property and hence he must be treated as a trespasser. When khader sheriff himself is treated in the eye of law as a trespasser, the petitioner's, petition is still worse and he cannot claim to be the tenant in respect of the premises. When the petitioner is a trespasser the application of the provisions of the rent control act does not arise at all. Hence he is not entitled to seek any benefit under this act.

(25) .having regard to the aforesaid reasons and findings given by me, i find no merits in the writ petition. It is, therefore, dismissed with costs. Advocate's fees rs. 150, writ petition dismissed.