1. In 1947 one Shakur Haji Suleman, a Cutchi Memon of Upleta died intestate leaving him surviving his widow, the plaintiff, and his only son Sitar Haji Shakur. There was a house belonging to him situate in Upleta in which he was residing with the plaintiff until his death and after his death the plaintiff continued to reside in two rooms in the same house. Soon after the death of Shakur Haji Suleman followed the partition of India and immediately after the partition Sitar Haji Sakur went away to Pakistan. Since by reason of being resident in Pakistan,
Sitar Haji Shakur was unable to supervise his property in Upleta, a notice dated 20th November 1950 was issued to him under Section 7 of the Administration of Evacuee Property Act, 1950, calling upon him to show cause why he should not be declared an evacuee under Section 2(d)(ii) of the Act.
In response to the notice a written statement dated 23rd November 1950 was submitted by the plaintiff and in the written statement she contended that Sitar Haji Shakur had gone to Pakistan merely for business purposes and he was, therefore, not liable to be declared an evacuee. An inquiry was thereafter held by the Assistant Custodian of Evacuee Property and as a result of the inquiry the
Assistant Custodian of Evacuee Property by his order dated 13th January 1951 held that Sitar Haji Shakur was an evacuee under Section 2(d)(ii) of the Act and his properties were evacuee properties. The plaintiff thereupon preferred an appeal to the Custodian of Evacuee Property. In the appeal it seems the the plaintiff put forward a claim to share in the properties left by Shakur Haji Suleman but this claim was rejected by the Custodian
of Evacuee Property. The Custodian of Evacuee Property by his order dated 24th April 1951 held that the plaintiff’s claim to the property of Shakur Haji Suleman could not be admitted but as a widow of Shakur Haji Suleman she was entitled to a right of residence in the said property and this right was
limited to the accommodation which she enjoyed immediately before Sitar Haji Shakur migrated to Pakistan. Now at the date when Sitar Haji Shakur migrated to Pakistan the plaintiff was residing in two rooms in the suit house and the right of the plaintiff to reside in the said two rooms as the widow of Shakur Haji Suleman was thus recognised and declared by the Custodian of Evacuee Property but since Sitar
Haji Shakur was an evacuee and his properties were evacuee properties as held by the Assistant Custodian of Evacuee Property, the order of the Assistant Custodian of Evacuee Property declaring Sitar Haji Shakur as an evacuee and his properties as evacuee properties was affirmed and the appeal was rejected by the Custodian of Evacuee Property. The plaintiff thereafter continued to reside in two rooms in
the suit house in which she was residing immediately before Sitar Haji Shakur migrated to Pakistan and there was no disturbance of her possession until 15th November 1953 when the Assistant Custodian of Evacuee Property issued an order fixing the rent of the said two rooms at Rs. 20 per month and requiring
the plaintiff to pay Rs. 680 as and by way of arrears of rent in respect of the said two rooms from January 1951 upto October 1953. The plaintiff on receipt of this order immediately approached the Custodian of Evacuee Property and applied for setting aside the said order. The Custodian of Evacuee Property by his order dated 26th February 1954 set aside the impugned order observing:
