March aa. [1962] K. S. NANJI AND COMPANY v. JATASHANKAR DOSSA AND OTHERS (K. SuBBA RAO and RAGHUBAR DAYAL, JJ.) Limitation-Encroachment on coal lands-Suit for damages on ascertainment of boundary-Knowledge of encroachment-Burden of proof-Indian Limitation Act, I908 (9 of Igo8), art. 48-Indian Evidence Act, I872 (I of I872), ss. 3, IOI.
The appellants and the respondents were owners of adjoining collieries and the suit out of which the present appeal arose was one brought by the respondents for certain reliefs on the allega- tion that the appellants had encroached npon their coal mines · and removed coal from the encroached portion and that they came to know of the said encroachment and removal of coal
after they had received the letter dated August 18, 1941, from the Inspector of Mines. The appellant denied the encroachment and pleaded that the suit was barred by limitation inasmuch as the respondents had knowledge of the encroachment in 1932
when there was a survey by the Department of Mines. The trial Judge found on evidence that the proceedings in 1932 had nothing to do with the matter, held that art. 48 of the Limitation Act applied to the suit and that the appellants had failed to prove that the respondents had knowledge of the sinking of the quarries and pits in the encroached land and decreed the suit. The High Court on appeal accepted the
finding of the trial court and, although it placed the burden of proving knowledge on the part of the respondents beyond the prescribed time on the appellants, nevertheless proceeded on the assumption that the initial burden to prove that they had knowledge of the said encroachment within the period was on the respondents and affirmed the decree of the trial court. Held, that the burden of proof had not been misplaced.
Under art. 48 of the Indian Limitation Act, which prescribes a three years' limitation from the date of the knowledge, the initial onus is obviously on the plaintiff to prove that date since it·would be within his special knowledge. Moreover, under s. 3 of the Act, which makes its obligatory on the court to dismiss a suit barred by limitation, even though such a plea is not set up in defence, it is for the plaintiff to establish that the suit is not so barred.
Lalchand Marwari v. Mahant Rampur Gir, (1925) I.L.R. 5 Pat. (P.C.) 312 and Rajah Sahib Perhalad Sein v. Maharajah Rajender Kishore Singh, (1869) 12 M.I.A. 292, referred to. Under the Indian Evidence Act there is an essential distinc- tion between burden of proof as a matter of law and pleading and as a matter of adducing evidence and under s. 101 of the '· Vt
l l Act the burden in the former sense is always on the plaintiff and never shifts, but the burden in the latter sense may according to the evidence led by the parties and presumptions of law or fact raised in their favour.
Sundarji Shivji v. Secretary of Stale for India, (r934) I.LR. r3 Pat. 752, disapproved. Kalyani Prasad Singh v. Borrea Coal Co. Ltd., A.LR. r946 Cal. r23, Bank of Bombay v. Fazulbhoy Ebrahim, (r922) 24 Born. L.R. 5r3 and Talyarkhan v. Gangadas, (1935) I.LR. 60 Born. 848, approved.
H <Id, further, that it is well settled that a map referred to in a lease is a part of the lease. Where, therefore, the map is drawn to scale and clearly demarcates the boundary it is not permissible to ignore it and reconstruct the boundary with reference to the revenue records.
Darapali Sadagar v. J ajir Ahmad, (1923) I.LR. 50 Cal. 394, referred to . CIVIL APPELLATE JuR1snw·rrnN: Civil Appeal No. 52 of 1957. Appeal from the judgment and decree dated April
22, of 1953, of the Patna High Court in Appeal from Original Decree No. 162 of 1946. K. N. Bhattacharya and P. K. Chatterjee, for appel- lants. N. C. Chatterjee, A. V. Viswanatha Sastri, R. S. Chat-
terji and D. N. Mukherjee, for respondents Nos. 2 to 6. ' 1961. March 22. Tho Judgment of the Court was delivered by !{. S. Nanji & Cotnpany v. ] atashankar nossa &. Olhet-s SUBBA RAO, J.-This appeal by .certificate granted Subba Rao J. is directed against the judgment of the High Court of
Judicature at Patna dated April 23, 1953, confirming that of the Subordinate Judge, Dhanbad, dated November 30, 1946. The plaintiffs and the defendant are adjoining colliery owners at Kujama. The plaintiffs' land lies
immediately to the south of the defendants' land. On August 2, 1894, Raja of Jharia granted mukarrari lease of the coal and coal mining rights in 300 bighas of land in village Kujama to Satya Karan Banerjee
and Girish Chandra Samanta. On June 15, 1900, his son, Raja Durga Prasad Singh, granted coal and coal 196z K. S. Nanji & Conipany v. J atashankar Dossa & Others Subba llao ]. [1962]
mining rights in respect of 400 bighas out of 592 bighas to one J ugal Kishore Lal. Samanta purchased the leasehold interest of Banerji, and thereafter on November 23, 1900, it appears that Samanta had
surrendered his rights under the previous lease in favour of the Raja and taken a fresh lease of the same 300 bighas on a reduced rent. On June 10, 1901, Jugal Kishore Lal granted a lease of 96 bighas out of his 400
bighas to one D. M. Mathews. On the very same day D. M. Mathews, in his turn, granted a lease to one W alji Kheta in respect of the said 96 bighas. W alji Kheta executed a kabuliat in favour of D. M. Mathews
on October. 11, 1901. Walji Kheta represented the defendants. By diverse transfers, the interest of Samanta vested in Bagdigi Kujama Collieries Limited. The plaintiffs' case was that as a result of a letter
written by the Inspector of Mines on August 18, 1941, the plaintiffs made an inquiry and came to know that the defendants had encroached upon their coal mines on the northern side and removed coal from the
encroached portion and had rendered the remaining coal of the encroached portion unworkable. On those allegations, they asked for the following reliefs: (a) That the intermediate boundary line between
the plaintiffs' coal-land and the defendants' coal- land be ascertained and fixed. (b) That the area encroached upon by the defen- dants be ascertained and the defendants be directed
to vacate the same. (c) That a permanent injunction be issued against the defendants restraining them from encroaching upon the plaintiffs' coal-land and cutting and re- moving coal therefrom. .
( d) That an enquiry be made and the quantity of coal cut and removed by the defendants from the plaintiffs' coal-land as also the quantity of the coal rendered unworkable be ascertained and a decree
for the value thereof by way of damages be granted to the plaintiffs against the defendants. The defendants denied that they had encroached upon the plaintiffs' coal-land and stated that the suit was
barred by limitation. They further pleaded that the t i l f plaintiffs would not be entitled to any damages. The learned Subordinate Judge held that the defendants had encroached upon the plaintiff' coal-land, that the
suit was not barred by limitation, and that they would be entitled to the reliefs prayed for. On appeal, the High Court of Patna accepted all the findings of the learned Subordinate Judge and dis.J.llissed the appeal.
Hence the present appeal. The first question that arises for consideration is whether the defendants had encroached upon the plaintiffs' coal-land. The answer to this question depends upon the correct delineation of the boundary
line between the plaintiffs' leasehold and the defen- dants' leasehold. It is common case that the southern boundary of the appellants' leasehold is conterminous with the northern boundary of the respondents' lease-
hold. Learned counsel for the appellant contends that the said boundary should be fixed solely with reference to the boundaries given in the lease of 1894, whereas learned counsel for the respondents contends that no
plan has been annexed to the said lease and, therefore, the boundary could more satisfactorily and definitely be fixed with reference to the plans annexed to the subsequent lease deeds executed in favour of the
successors-in-interest of the appellant and the res- pondents. To appreciate the rival contentions it is necessary to consider the various lease deeds in some detail. On August 2, 1894, Raja Jaimangal Singh executed
the lease deed (Ex. 1) in respect of 300 bighas in favour of the respondents' predecessor-in-interest. In that lease deed the northern boundary is describ- ed to be the remaining portion of mauza Kujama
aud the western boundary is described as Chatkari J orh. The foot note to the lease reads, "measur- ing 1101 feet in length running north and south by the side of the said Chatkari Jorh and area
being 300 bighas by such measurement". No plan was annexed to this lease deed. On June 15, 1900, Jugal Kishore Lal, the predecessor-in-interest of the appellant, had obtained a lease (Ex. C) of 400 bighas
I96I K. S. Nanji & Company v. ] atasha·nkar Dossa &. Others Subba Rao ]. z961 K. S. Nanji &- Company v. J atashanknr Dossa &- Others Subba Rao ]. [1962) from Raja Durga Prasad Singh, the son of the previous
Raja. The southern boundary of this leasehold is given as the northern boundary limit of the leasehold land of Girish Chandra Samanta and others and the western boundary is shown as the eastern boundary
of Chatkari Jorh as per the map annexed. This lease deed clearly shows that the southern boundary of this plot is conterminous with the northern boundary of the leasehold land in favour of Samanta. It may
also be noticed at this stage that the map annexed to this lease deed has not been filed by the appellants. It appears that Samanta purchased the interest of Banerji in the leasehold of 1894 and thereafter at the
request of Samanta, on November 23, 1900, Darga Prasad Singh gave a fresh lease of the same holding to Samanta and incorporated a map in that lease, i.e., Ex. 3(b ). There, the northern boundary of the lease-
hold is described as the leasehold of Rajkumar J ugal Kishore Lal Singh Bahadur. The plan, Ex. 3(b), annexed to this lease deed shows the boundary line between the two leaseholds. The said plan is drawn
to scale and the boundary line is drawn between point A marked in the plan and point B marked therein. As the plan is a part of the lease deed, it is clear from the plan that the northern boundary of the leasehold
of Samanta is the said line. On June 10, 1901, J ugal Kishore Lal, that is, the predecessor-in-interest of the appellant demised a plot of 96 bighas carved out from his leasehold to Mathews under a deed Ex. C(l).
Mathews in turn demised under Ex. D the said land of 96 bighas to Walji Khetan representing the appellant. In both these documents the southern boundary is shown as the northern boundary of the leasehold land
of Samanta. One interesting feature is that a map has been referred to in each of the documents and the said map shows that the line drawn from point A to point B is the boundary between the two leaseholds.
It may be mentioned that the said boundary line is exactly the same as that found in Ex. 3(b). These documents to which the defendants' predecessors were parties contain a clear admission that the boundary
line between the two leaseholds i.e., between appel- lant's and that of the respondents' is the line between A and B shown in plan Ex. 3(b). We have no doubt that if the plan annexed to Ex. C was produced by the
appellant, it would have also established that the dividing line between the two leaseholds is that found in Ex. 3(b). The appellant, in our view, has suppressed the said plan and, therefore, in the circumstances, we
are justified to draw an inference that, if produced, it would be against appellant's contention. From the aforesaid documentary evidence we hold, agreeing with the courts below, that the southern boundary of the
appellant's holding, which is conterminous with t.he northern boundary of the respondents' holding, is the line between points A and B shown in Ex. 3(b). The next question addressed by the courts below is
how to ascertain the point A. The argument of learned counsel for the appellant is that the map translated into words indicates that the correct bound- ary should be a line drawn from the true meeting
point of the four villages Pandebera, Jharia Khas, Lodhna and Kujama at a bearing of 82.15', whereas the contention of the respondents is that the line actually drawn on the lease map correctly lays down
the northern boundary of the respondents' leasehold. It is settled law that a map referred to in a lease should be treated as incorporated in the lease and as forming part of the document: see Darapali Sadagar
v. Najir Ahamed ('). As in this case the map is drawn to scale and incorporated in the lease deed, it is not permissible to ignore the starting point of the bound- ary line and adopt instead any scientific point based
on survey. The Commissioner appointed by the court tested the position of the six trijunction pillars shown in the map of lease dated November 23, 1900, and found that two of the trijunction pillars were in their
correct positions. On the basis of these two trijunc- tion pillars, the Commissioner relaid, by the process of superimposition, the northern boundary line of the leasehold property. The point A in the map so laid
does not tally with the point where the aforesaid four villages actually meet. He pointed out that the correct (I) (1923) l.L.R. 50 Cal. 394- K. S. Nanji & Company v. J alashankar
Dossa & Others Subba Rao ]. K. S. Nanji & Company v. ]atashanhar Dossa & Others Subba Rao ]. [1962] point where the said four villages met would be 1680 feet only from the trijunction pillar of Lodhna,
Kujama and Madhuban, whereas the point A was at a distance of 1750 feet from the said trijunction pillar. But learned counsel for the appellant contends that according to Ex. 3 the western boundary should be
according to the revenue plan and, therefore, point A should be fixed at a distance of 1680 feet from the trijunction pillar, as that is the distance according to the revenue plan. But a perusal of Ex. 1 shows that
there is no reference in regard to the western boundary to revenue records. That a part, even if 1680 feet is taken as the distance between the trijunction pillar and point A in the map, it demonstrates that the
measurement given in Ex. 3 was incorrect, for, there the distance was shown only as 1101 feet. But a more serious objection to the argument is that it is not permissible for a court to reconstruct the plan with
reference to revenue records when the plan is self- contained and drawn to scale. To summarize: the question is whether the disputed extent is part of the respondents' holding or that of
the appellant's holding. The map, Ex. 3(b), annexed to the lease deed executed in favour of the respon- dents' predecessor-in-interest clearly demarcates the boundary line between the holdings of the appellant
and the respondents, and according to that plan the disputed extent falls within the boundary of the respondents' holding. The lease of the appellant's predecessor, i.e., Ex. C, also refers to a map, but the
appellant withheld it. In the sub-leases created by the appellant, maps were annexed and the boundary therein is in accord with that in Ex. 3(b ). Those documents contain clear admissions supporting the
case of the respondents. No reliance can be placed upon the recitals in Ex. 1, as it is demonstrated that the extent given in respect of the western boundary is incorrect. On the aforesaid material both the
courts have held that the disputed extent of land is part of the holding of the respondents. It is well settled that a map referred to in a lease should be treated as incorporated in the lease and as
forming part of the said document. In this case the maps accepted by us are drawn to scale and the boundary is clearly demarcated. The courts were, therefore, certainly right in accepting the boundaries
drawn in the plan without embarking upon an attempt to correct them with reference to revenue records. The question really is one of fact and we accept the finding. The next question is whether the suit was barred by
limitation. The encroachment by the appellant on the respondents' colliery and the removal of coal therefrom are alleged to have taken place in or about the year 1932. The respondents in the plaint averred
that they came to know of the said encroachment and removal of coal by the appellant after they received the letter dated August 18, 1941, from the Inspector of Mines and before that they had absolutely no know- .
ledge or information whatsoever regarding thereto. The appellant denied the said allegation and stated that the respondents all along knew and had been aware that the portion of coal-land in question belong-
ed to and was the property of the appellant. In parti- cular the appellant alleged that the respondents must have the knowledge of it since 1932 when there was a survey by the Department of Mines. On the said
pleadings issue 3 was framed which reads, "Is the suit barred by limitation?" The learned Subordinate Judge found, on the evidence, that the proceedings in 1932 had nothing to do with the delineation of the boun-
dary line between the two holdings. He held that Art. 48 of the Limitation Act applied to the suit and that the appellant had .failed to prove that the res- pondents had knowledge of the sinking of the quarries
and pits in the encroached land. On appeal the High Court accepted the finding. Though the High Court held that the burden of proof to establish knowledge on the part of the respondents beyond the prescribed
time was on the appellant, it has given the finding on the assumption that the initial burden was on the res- pondents to prove that they had knowledge of the said encroachment only within three years thereof.
There are, therefore, concurrent findings of fact on the z96r K. S. Nanji & Company v. Jatashankar Dossa &> Others Subba Rao ]. J{. S. Nanji & Company v. ]atashankar Dossa & Others
Subba Rao ]. SUPREME COURT R.EPORTS [1962] question of knowledge. But learned counsel for the appellant contended that the finding is vitiated by the burden of proof having been wrongly thrown on the
appellant. This submission is not accurate, for, as we have pointed out, the High Court arrived at the find- ing of fact on the assumption that the initial burden of proof was on the respondents.
It is common case that art. 48 of the Limitation Act governs the period of limitation in respect of the pre- sent suit. It reads: Description of suit. For specific moveable property
lost, or acquired by theft, or dishonest misappro- priation or conver- sion, or for com- pensation for wrong- ful taking or detain- ing the same. Period of limitation. Three years.
Time from which period begins to run. ————-· . When the per- son having the right to the posses- sion of the property first learns in whose posses- sion it is. The article says that a suit for recovery of specific
moveable property acquired by conversion or for com- pensation for wrongful taking or detaining of the suit property should be filed within three years from the date when the person having the right to the
possession of the property first learns in . whose possession it is. The question is, on whom the burden to prove the said knowledge lies? The answer will be clear if the article is read as follows:
A person having the right to the possession of a pro- perty wrongfully taken from him by another can file a suit to recover the said specific moveable property or for compensation therefor within three years from
the date when he first learns in whose possession it is. Obviously where a person has a right to sue within .three years from the date of his coming to know of a certain fact, it is for him to prove that he had the
knowledge of the said fact on a particular date, for the said fact would be within his peculiar knowledge. That apart, s. 3 of the Limitation Act makes it obliga- tory on a court to dismiss a suit barred by limitation,
although limitation has not been set up as a defence, indicating thereby that it is the duty of a plaintiff to establish, at any rate prima facie, that the suit is within time. It is the obligation of the plaintiff to
satisfy the court that his action is not barred by lapse of time: see Lalchand Marwari v. Mahanth Rampur Gir (1) and Rajah Sahib Perhlad Sein v. Maharajah Raj ender K ishore Sing (2).
Looking from a different perspective, we arrive at the same result. Under the Evidence Act there is an essential distinction between the phrase "burden of proof" as a matter of law and
pleading and as a matter of adducing evidence. Under s. 101 of the Evidence Act, the burden in the former sense is upon the party who comes to court to get a decision on the existence of certain facts which he
asserts. That burden is constant throughout the trial; but the burden to prove in the sense of adduc- ing evidence shifts from time to time having regard to the evidence adduced by one party or the other or
the presumption of fact or law raised in favour of one or the other. In the present case the burd0n of proof in the former sense is certainly on the respondents. But the question is whether they have adduced evide-
nce which had the effect of shifting the onus of proof to the appellant. On behalf of the respondents, their Colliery Manager was examined as P. W. 2. He stat- ed in his evidence that the appellant had encroached
upon the South Kujama Colliery in Seam Nos. 10, 11 and 12 and another special seam, known as 4 feet seam and that in August, 1941, he came to know about the encroachment for the first time when the
Mines Department forwarded a plan of the joint work- ings of the two collieries of the parties. He also stated that he had no knowledge of the encroachment before. In the cross-examination, two suggestions were made
to him, namely, that in 1932 there was a survey of the plaintiffs' and defendants' coal-land by the Mines Department and that Seam Nos. 11 and 12 were (1) (1925) l.L.R. 5 Pat. 312.
(2) (1869) 12 M.l.A. 292. I96I K. S. Nanji & Company v. ] atashankar Dossa &. Others Subba Rao ]. I96I K. S. Nanji & Company v. ] atashankar Dossa &> Others Subba Rao J. [1962] worked by the appellant by open quarry system. He
denied that he had any knowledge of the said two facts. The evidence of this witness has been accep- ted by the learned Subordinate Judge, and the High Court also accepted his evidence, though in its view
it was not very satisfactory. This evidence, therefore, prima facie proves that the respondents had knowledge of the encroachment only in 1941. Let us now consider some of the decisions cited at
the Bar. A division bench of the Patna High Court in Sundarji Shivji v. Secretary of State for India (1) held that "when a defendant in an action based on tort seeks to show that the suit is not maintainable by
reason of the expiry of the statutory period of limita- tion, it is upon him to prove the necessary facts". There the suit was for conversion of property, and the learned Judges applied art. 48 of the Limitation Act
to the said suit. After noticing the words in the last column of the article, the learned Judges proceeded to observe thus: " The starting date of limitation in the case of conversion is the date when the person who has the
right to possession first learns of the act of con- version." Adverting to the burden of proof, the learned Judges observed: "There is nothing in the pleadings which would show precisely at what period the plaintiff or the
plaintiff's agent, which is the same thing, became aware of the sale and its wrongfulness, that is to say, became aware of the fact of conversion. The defendant was unable to provide us with any mate-
rials to fix that date and therefore his plea of limita- tion fails altogether, because he is unable to show a date outside the period of three years which would entitle him to succeed."
With great respect to the learned Judges, we hold that this case had not been correctly decided. The burden of proof, as we have explained earlier is on a plaintiff who asserts a right, and it may be, having
regard to the circumstances of each case, that the (I) (1934) l.L,R. 13 Pat. 752, 760. onus of proof may shift to the defendant. But to say that no duty is cast upon the plaintiff even to allege
the date when they had knowledge of the defendant's possession of the converted property and that the entire burden is on the defendant is contrary to the tenor of the article in the Limitation Act and also
to the rules of evidence. A division bench of th<; Calcutta High Court in Kalyani Prasad Singh v. Borrea Coal Co. Ltd.(') did not accept the view of the Patna High Court, but followed that of the Bombay
High Court in the Bank of Bombay v. Fazulbhoy Ebrahim('). In the context of the application of art. 48 of the Limitation Act, the learned Judges of the Calcutta High Court observed thus:
"The burden of proof rests upon the party who substantially asserts the affirmative of the issue …… …… We are of opinion that the onus is upon the plaintiff in these suits to prove that the knowledge
of his father was within three years of the suit." In Talyarkhan v. Gangadas ('), Rangnekar, J., formu~ lated the legal position thus: "The onus is on the plaintiff to prove that he first
learnt within three years of the suit that the pro- perty which he is seeking to recover was in the possession of the defendant. In other words, he has to prove that he obtained the knowledge of the
defendant's possession of the property within three years of the suit, and that is all. If he proves this, then to succeed in the plea of limitation the defen- dant has to prove that the fact that the property
was in his possession became known to the plaintiff more than three years prior to the suit." We accept the said observations as representing the correct legal position on the subject.
The appellant gave evidence to show that the en- croachment was prior to 1932, but there is no accep- table evidence on their part to establish that the respondents came to know of the removal of coal by
the appellant or their possession of the coal removed beyond three years prior to the suit. Learned counsel (1) A.LR. 1946 Cal. 123, 127. (2) (1922) 24 Born. L.R. 513. (3) (1935) I.L.R. 60 Born. 848, 860.
K. S. Nanji & Company v. ] atashankar Dossa b Others Subba Rao J. [1962] I96I took us through the correspondence that passed bet- ween the parties and the Mining Department in 1932.
K. 5· Nanji But it does not prove that the respondents had know- & Company v. ledge of the fact that the appellant had encroached Jatashankar upon any portion of their coal mines. Emphasis is
Dossa & Others also laid upon the fact that there was quarry system of working in the mines and a contention is advanced Subba Rao f. that quarrying is done openly and, therefore, the res- pondents must have had -knowledge of the said fact.
But the courts found from Commissioner's maps that in the encroached portion, there were only under- ground workings and that the quarries were mostly outside the encroached area. The learned Subordinate
Judge and the High Court refused to base any finding on mere probabilities without clear evidence to sustain them. We cannot therefore hold that the findings of the courts are vitiated by an error of law by the
burden of proof having been wrongly thrown on the appellant. We accept the findings of the High Court that the respondents had knowledge of the appellant's encroachment of their coal mines only in the year
1941 which was within three years of the date of the filing of the suit. The only other outstanding question that remains for consideration is that covered by Issue No. 7. In paragraph 11 of the plaint, the plaintiffs allege that
under the Indian Mines Act and the Rules and Re- gulations made thereunder the plaintiffs are bound to keep a barrier of 25 feet to the south of the defend- ant's working and, therefore, the coal that is still left
in the encroached area is not by any means accessible to the plaintiffs and being thus wholly unworkable is entirely lost to them for ever.' In the written state- ment the defendants did not deny the fact that the
coal still left in the encroached area was lost to the plaintiffs, but only stated that it was purely a ques- tion of statutory obligation on the part of the plain- tiffs with which the defendant had nothing to do. The
learned Subordinate Judge accepted the case of the plaintiffs and held that the coal that was left in the encroached area was entirely lost to them by being rendered unworkable. The High Court accepted the
finding. I S.C.R. Learned counsel for the appellant contends that under the Rules the respondents could request the mining authorities to exempt them from the operation of rule 76 of the Indian Coal Mines Regulation, 1946,
and if exemption was granted, they could remove the coal left by the appellant in the encroached area. This possibility of the respondents getting an exemp- tion from the operation of the rule was not raised
either before the learned Subordinate Judge or before the High Court. Nor can we hold in favour of the appellant on the basis of such a possibility. We, therefore, accept the concurrent finding of fact arrived
at by the courts below in respect to this issue. No other point was raised. The appeal fails and is dismissed with costs . Appeal dismissed. ANIYOTH KUNHAMIN A UMMA v. MINISTRY OF REHABILITATION AND
OTHERS (B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR, N. RAJAGOPALA AYYANGAR and J. R. MUDHOLKAR, JJ.) Fund~ment~l. Rig_hts-Evacuee Property-Declaration becoming final-Writ Petition in Supreme Court challenging declaration- Maintainability of-Constitution of India, Art. 32.
. The petitioner's husband transferred certain property to the petitioner. A notice under s. 7, Administration of Evacuee Pro- perty Act, 1950, was issued to the petitioner and to her husband and the husband was declared an evacuee and the property was declared as evacuee property by the Assistant Custodian. An appeal to the Deputy Custodian and there.after a revision peti- tion to the Custodian General by th~ petitioner were dismissed. The petitioner applied to the Supreme Court under Art. 32 of the Constitution contending that her fundamental rights under K. S. Nanji
if.. Company v. Jatashankar Dossa &- Others Subba Rao ]. r96r MaYch 22.