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2001 DIGILAW 1193 (PNJ)

Union of India v. Udey Singh

2001-10-23

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This regular second appeal has been filed by the Union of India and others and it has been directed against the judgment and decree dated 24th July, 1980 passed by the Court of Additional District Judge, Gurgaon who allowed the appeal of the plaintiff-respondents and set aside the judgment and decree dated 16th April, 1979 passed by the trial Court and the suit of the plaintiffs for injunction restraining the defendants from auctioning the suit land except after deciding the matter afresh in accordance with law was decreed. 2. The brief facts of the case are that Sarvshri Ude Singh and others alleged that they are in possession of the agricultural land detailed in para No. 1 of the plaint measuring 80 kanals 1 marla situated in the revenue estate of village Shikhpur Tehsil Ballabgarh, District Gurgaon, for the last more than 100 years as owners openly adversely and within the knowledge of the defendants Union of India and the Haryana State. Out of the agricultural land detailed in para No. 1 of the plaint, the land comprising of Khewat No. 20, Khata Nos. 24 and 25 was in possession of the predecessors-in-interest of the plaintiffs and is in possession of the plaintiffs as mortgages for the last more than hundred years. Now the defendants claim themselves to be the successors-in-interest of original mortgagors, therefore, they have been impleaded as defendants. The whereabouts of the original owners are not known to the plaintiffs and they have not been heard and seen by the plaintiffs, therefore, they are presumed to have died. The plaintiffs have acquired the right of ownership in the land detailed in para No. 1 of the plaint, including the land recorded as mortgagees by prescription. Defendants are openly threatening to dispossess the plaintiffs from the suit land illegally, without any right, title and interest. The defendants have now taken the steps to auction the land on 23rd December, 1977. This auction is illegal, unwarranted and unjust. The defendants were asked not to auction the land but to no effect. 3. Defendants are openly threatening to dispossess the plaintiffs from the suit land illegally, without any right, title and interest. The defendants have now taken the steps to auction the land on 23rd December, 1977. This auction is illegal, unwarranted and unjust. The defendants were asked not to auction the land but to no effect. 3. Notice of the suit was given to the defendants who contested the suit and a preliminary objection was raised that the suit land being evacuee property, therefore, the Civil Court has no jurisdiction to try the suit; that the plaintiffs have no locus standi to file the suit; that the suit is not maintainable for want of notice under Section 80 Civil Procedure Code. On merits, it was pleaded that as per the jamabandi for the year 1902-03, the land was mortgaged by Sayed Ali Sayed Hussain and Sayed Hussain sons of Haidar Ali in favour of Gopali (1/3rd share) Budha (2/3rd share) sons of Bakshi vide Mutation No. 231 entered on 30.8.1905 decided on 29.6.1907 for Rs. 182.00. Lateron, according to Jamabandi for the year 1906-07 the area measuring 18 bighas was sold in favour of Budha and Gopili sons of Bakshi vide mutation No. 229, 230 and 232 by Gulan Abas, Agha Hussain and Fazal Hussain. The balance area measuring 5 bighas 18 biswas remained under the self cultivation of the owner Shri Iftkhar Hussain. Gopali and Budha sold their mortgagee rights vide mutation No. 23 entered on 12.3.1912 and decided on 24.4.1912 for Rs. 182/- as per Jamabandi for the year 1912-13. The ownership rights were sold vide mutation No. 24 dated 24.4.1912 in favour of Chandan Singh son of Bharat Singh and Kanshi Ram son of Amar (predecessors-in-interest of the plaintiffs). The same entries are repeated in the subsequent Jamabandis from 1916-17 to 1962- 63. The above khewat was partitioned at the time of consolidation in the village in the year 1965 and evacuee owners were allotted 86 kanals 13 marlas of the land and the plaintiffs were shown as Gair Maurusi and mortgagees in respect of the land measuring 33 kanals 17 marlas and 52 kanals 16 marlas respectively. The land in dispute was owned by Mohammedans and after their migration to Pakistan, all their rights and interest stood vested in the Custodian under Section 4 of the East Punjab Evacuee Administration of Property Act, 1947. The land in dispute was owned by Mohammedans and after their migration to Pakistan, all their rights and interest stood vested in the Custodian under Section 4 of the East Punjab Evacuee Administration of Property Act, 1947. On account of the enforcement of Central Act No. 31 of 1950 the interest of evacuees which had vested in the custodian under the Punjab Act No. 14 of 1947 automatically stood vested in the custodian of Evacuee Property under sub-section (2) of the Section 8 of the said Act. It was further claimed that the land in dispute was composite property and as 20 years had already expired the mortgage automatically stood redeemed and extinguished by operation of law. The plaintiffs had left no right, title or interest in the property. The equity of redemption which originally vested in the Custodian became the full-fledged proprietorship by virtue of Section 9(2) of the Evacuee Interest (Separation) Act, 1951. It was further asserted that as the property in question vested was free from all encumbrances, therefore, they have full powers to dispose of the land in dispute in accordance with law. 4. From the pleadings of the parties, the trial Court framed the following issues : 1. Whether the plaintiffs and their predecessors-in-interest have been in possession of the land in dispute for the last more than hundred years as owners openly adversely and within the knowledge and notice of the defendants, as alleged ? OPP 2. Whether the lands, comprising of khata Nos. 24 and 25 Khewat No. 20 is in possession of the plaintiffs and their predecessors in interest as mortgagees for the last more than hundred years ? OPP 3. Whether the plaintiffs have acquired right of ownership in the suit land including the land recorded as mortgaged land by prescription and lapse of time as alleged ? OPP 4. Whether the action of the defendants to auction the land in dispute is illegal as alleged ? OPP 5. Whether the Civil court has no jurisdiction to try the present suit as alleged ? OPP 6. Whether the suit land vested in the Central Government ? If so to what effect ? OPP 7. Whether the suit is liable to be dismissed for want of notice under section 80 C.P.C. as alleged ? OPD. 8. OPP 5. Whether the Civil court has no jurisdiction to try the present suit as alleged ? OPP 6. Whether the suit land vested in the Central Government ? If so to what effect ? OPP 7. Whether the suit is liable to be dismissed for want of notice under section 80 C.P.C. as alleged ? OPD. 8. Whether the plaintiffs are being shown as Gair Maurusi in respect of the land measuring 33 Kanals 17 marlas after 1965 as alleged ? If so to what effect ? OPD. 9. Whether the mortgage stood extinguished on the expiry of 20 years and the Custodian evacuee property become owners of the land in dispute under Section 9(2) of the Evacuee Interest Separation Act, 1951 ? OPD. 10. Whether the plaintiffs have no right, title or interest in the suit land at alleged ? OPD 11. Relief. 5. The parties led evidence in support of their case and finally suit of the plaintiffs was dismissed by the trial Court vide judgment and decree dated 16th April, 1979. Aggrieved by the judgment and decree, the plaintiffs filed an appeal before the Appellate Authority who allowed the appeal by setting aside the judgment and decree of the trial Court and decreed the suit of the plaintiffs for injunction restraining the respondents from auctioning the suit land except after deciding the matter afresh in accordance with law by giving proper notice to the affected persons. 6. I have heard Shri Vijay Dahiya, the Government Pleader on behalf of the appellants and with his assistance, have gone through the record of this case. 7. The learned counsel for the appellants submitted that the property in dispute belongs to Mohammedans and since they had migrated to Pakistan, therefore, this property automatically vested in the Central Government; free from all encumbrances and, therefore, the government has the right to deal with this property in any manner it likes, including the one it can auction the land to public. In support of his contention, the learned counsel for the appellant refers to the order Ex. D.26. I find no merit in the contention raised by the learned counsel for the appellants. It is the admitted case that the land in question was the ownership of Mohammedans. The case set up by the plaintiffs is that they were the mortgagees. In support of his contention, the learned counsel for the appellant refers to the order Ex. D.26. I find no merit in the contention raised by the learned counsel for the appellants. It is the admitted case that the land in question was the ownership of Mohammedans. The case set up by the plaintiffs is that they were the mortgagees. The land has not been redeemed within the statutory period and, therefore, they have become owners of the property by efflux of time. For the last more than 100 years they are in occupation of the property in the capacity of mortgagees. Since it has not been redeemed, therefore, they have become full owners of the property in question and in these circumstances, the defendants (Union of India and the Haryana Government) have no right to auction the land treating it as an evacuee property. In order to declare the property as evacuee it is necessary to be shown that the property belongs to Mohammedans and that they have migrated to Pakistan. Before declaring the property evacuee it is also obligatory on the part of the authorities to comply with the principles of natural justice by giving notice to those persons who are in possession of the property in the capacity of the mortgagees. There is no automatic vesting of the property of the Mohammedans in the Central Government. In order to make a case of automatic vesting it is obligatory on the part of the Government to show that the property belongs to Mohammedans and those Mohammedans migrated to Pakistan. In the present case, the case set up by the plaintiffs was that the owner-mortgagors had migrated to Uttar Pradesh and they did not come back. In these circumstances, before declaring the property as evacuee it was obligatory on the part of the authorities to give notice to all concerned, especially to the persons who are in possession of the property. This has not been done so. Rather, a simple order has been passed declaring the property as evacuee on the assumption that in the revenue record the Mohammedass had been recorded as owners. Without being satisfied whether these Mohammedans had shifted to Pakistan or not and without giving opportunity to the mortgagees who are in possession of the property, the property has been declared evacuee which is not in accordance with law. Without being satisfied whether these Mohammedans had shifted to Pakistan or not and without giving opportunity to the mortgagees who are in possession of the property, the property has been declared evacuee which is not in accordance with law. I agree with the findings of the first Appellate Authority that the matter was not properly investigated by the authorities before the declaring that the suit land is an evacuee. For the first time the property was declared evacuee in the year 1976 at the back of the plaintiffs. In this view of the matter, I do not find any illegality in the impugned judgment dated 24th July, 1980 and dismiss this appeal with the observations that let the authorities may comply with the principles of natural justice. It will give notice to the plaintiffs before declaring the property as evacuee. The plaintiffs would have the right to show that on the appointed date they had already become owners of the property by efflux of time and at no point of time this property could be in the name of Mohammedans and on the appointed date they had no specific interest in the land in question. The appeal is dismissed with no order as to costs. Appeal dismissed.