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2001 DIGILAW 99 (HP)

BANTO DEVI v. PREM KUMARI

2001-05-25

KAMLESH SHARMA

body2001
JUDGMENT Ms. Kamlesh Sharma, J.—The appellants are the legal representatives of original defendant Jaishi Ram, whereas, the respondents are the legal representatives of original plaintiff Tajan widow of Barkat Ali and they will be referred to as defendants and plaintiffs in this judgment. The name of another original defendant Shiv Ram, who was impleaded as proforma respondent No. 2 in this appeal, was deleted by order dated 3.12.1996 at the request of learned counsel for the appellants. 2. The defendants have filed the present regular second appeal to assail the decree and judgment dated 22.8.1984 passed by District Judge, Hamirpur and Una Districts camp at Hamirpur whereby the appeal of the plaintiffs was accepted and the decree and judgment dated 28.5.1981 of Sub Judge 1st Class, Hamirpur was set aside. The Sub-Judge had dismissed the suit of the plaintiffs, which was filed for possession of the land measuring 11 kanals 17 marlas, situated in Tika Jhamerh Musalmana, Tappa Jhaniara, Tehsil and District Hamirpur (hereinafter called the land in dispute). It is not in dispute that the land in dispute was earlier in possession of Fazzaldin, Navi Bakash, Jaimaldin Mohammad and Gulam Mohammad, who were Moharnmadan Gujjars and migrated to Pakistan on the eve of partition and the property is said to have been treated and declared evacuee property. Fazzaldin and others had morgaged the land in dispute in favour of one Gopala son of Kahna, who sold his mortgagee rights in favour of Bali Ram, Kalyanoo, Niranjan Dass, Ram Chand and Krishan Kumar sons of Sohnu and consequently they became mortgagees in place of Gopala. One Mohan, who was father of Jaishi Ram, the original defendant, was inducted as tenant on the land in dispute by Gopala. Accordingly, in the year 1947 Fazzaldin and others were the mortgagors and owners, and Beli Ram and others were the mortgagees and Mohan was the tenant on the land in dispute. 3. The claim of the plaintiff is that the Custodian under Section 20-A of the Displaced Persons Compensation Rehabilitation Act, 1954 (hereinafter called the Act of 1954) allotted the land in dispute to her and Mutation No, 114 dated 18.1.1968 was also sanctioned in her favour. According to her, the land in dispute stood redeemed by operation of law being evacuee property and the rights of the mortgagees and that of tenant under them stood extinguished. According to her, the land in dispute stood redeemed by operation of law being evacuee property and the rights of the mortgagees and that of tenant under them stood extinguished. Thus, she had filed suit for possession against the original defendants Jaishi Ram and Shiv Ram, who were sons of Mohan, who was recorded as tenant under the mortgagees. 4. The defendants resisted the suit and denied that the land in dispute is evacuee property of which the plaintiff is owner, being its allottee. According to them, the land in dispute is recorded as Shamlat Deh and could not be held to be the property of Mohammadans i.e. Fazzaldin and others. They claimed themselves to be the tenants on the land in dispute from the time of their forefathers under the mortgagees as the mortgage is still subsisting. 5. The trial Court dismissed the suit holding that the land in dispute is not evacuee property for want of notice under Section 7 of the Administration of Evacuee Property Act, 1950 (Act No. 31 of 1950) to the persons interested, which was pre-requisite for declaring the land in dispute as evacuee property. It is also held that the land in dispute not being evacuee property could not be allotted to the plaintiffs under the Act of 1954, as such, she is not owner thereof. Relying upon the Jamabandis Exts. P-4, P-10, D-7, D-8, P-7 and D-9 to D-11 it is held that the defendants have been in cultivating possession under mortgagees Bali Ram and others, who are necessary parties. In this view of the matter, the defendants are held not liable to be dispossessed from the land in dispute. In the appeal filed by the plaintiffs the District Judge has set aside the findings of the trial Court holding that the land in dispute is an evacuee property, which stood redeemed by operation of law and the rights of the defendants as tenants under the mortgagees also stood terminated and they had no right, title and interest in the land in dispute. Hence, the present regular second appeal by the defendants. 6. Hence, the present regular second appeal by the defendants. 6. The present regular second appeal was earlier dismissed by judgment and decree dated 25.2.1997 passed by the learned Single Judge of this Court, against which the defendants have filed SLP in the Supreme Court of India, which was allowed and Civil Appeal No. 4292 of 1997 was registered, which was ultimately dismissed as withdrawn on 16.12.1999 when in reply to the notice of appeal sent to Smt. Tajan it has been reported that she had died on 1.12.1996 before the judgment and decree were passed in the regular second appeal by the learned Single Judge of this Court. Thereafter the defendants filed review petition which was allowed after condoning the delay by order 16.3.2001 passed in CMP (M) No. 463 of 2000. The review petition as well as the application for condoning the delay were filed, against the legal representatives of late Smt. Tajan, the original plaintiff. While allowing the review petition this court has held that the appeal deserves to be reheard and decided afresh by formulating the substantial questions of law, which was not done earlier while passing the judgment and decree dated 25.2.1997. Accordingly, this Court proceeds to formulate the following substantial questions of law :— 1. Whether for want of notice under Section 7 of Act No. 31 of 1950 the declaration that the land in dispute is evacuee | property, could not be made? 2. Whether the District Judge has misread and misappreciated the provisions of Act No. 31 of 1950 and Act of 1954 and the Evacuee Interest (Separation) Act to hold that the land in dispute is evacuee property and it stood redeemed automatically by operation of law as the mortgage was more than 20 years old and the rights of the mortgagees as well as that of the defendants, who were tenants under them, also stood extinguished? 7. This Court has heard learned Counsel for the parties and gone through the record. Section 7 of the Act No. 31 of 1950 provides for passing order declaring a property as evacuee property. It is:- "7. Notification of evacuee property,—(1). 7. This Court has heard learned Counsel for the parties and gone through the record. Section 7 of the Act No. 31 of 1950 provides for passing order declaring a property as evacuee property. It is:- "7. Notification of evacuee property,—(1). Where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property. (1A) Where during the pendency of any proceeding under subsection (1) for declaring any property to be evacuee property any person interested in the property dies, the proceeding shall, unless the Custodian otherwise directs, be continued and disposed of as if such person were alive. (2) Where a notice has been issued under sub-section (1) in respect of any property, such property shall, pending the determination of the question whether it is evacuee property or otherwise, be incapable of being transferred or charged in any way, except with the leave of the Custodian and no person shall be capable of taking any benefit from such transfer or charge except with such leave. (3) The Custodian shall from time to time, notify, either by publication in the official Gazette or in such other manner as may be prescribed, all properties declared by him to be evacuee properties under sub-section (1)." 8. Interpreting this provision, learned Judges of the Supreme Court in Begum Noorbanu and others v. Deputy Custodian General of Evacuee Property, AIR 1965 SC 1937, have held that the persons who have not migrated to Pakistan and who claim that the property is theirs and is not evacuee, are the interested persons to whom notice is required to be given under sub-section (1) of Section 7 of the Act No. 31 of 1950. The relevant observations in para 10 of the judgment are as follows :— "......It seems to us that the notice contemplated by Section 7 of the Act is in the first place intended to provide an opportunity to the person whose property is in the opinion of the Custodian an evacuee property to satisfy the custodian that he is not an evacuee as defined in Section 2(d) of the Act. For, if he is not an evacuee’ his property cannot be declared evacuee property. In the second place it is to afford an opportunity to persons who have not migrated to Pakistan to satisfy the Custodian that the property which, in the opinion of the Custodian, is evacuee property does not belong to an evacuee or that an evacuee has no interest therein. Therefore, once a person has been declared an evacuee after due notice it would be unnecessary to give notice to him thereafter under Section 7 of the Act. No purpose will be served by issuing such notice because the earlier notification would be conclusive against the evacuee on the question of his migration to Pakistan. Having migrated to Pakistan the evacuee loses all interest in the property left by him in India in the sense that upon its being declared as evacuee property it would vest in the Custodian alone under Section 8(1) of the Act. That is to say, where any property of a person has been declared evacuee property he must be deemed to be an evacuee. The only persons who could claim to be interested in the property would, therefore, be those who have not migrated to Pakistan and who may possibly claim that the property is theirs and did not belong to the evacuee. It is immaterial for the purposes of Section 7 whether a particular property had actually devolved on the evacuee before migration to Pakistan or devolved later. Whatever be the point of time at which the property devolved on the evacuee it would become evacuee property in the sense that it is liable to be declared as evacuee property and to vest in the Custodian, provided that the devolution occurred before the power of the Custodian to declare any property as evacuee property came to an end under Section 7-A of the Act........" (Emphasis supplied) 9. In view of the admitted position that Fazaldin and others, the owners of the property in dispute, had migrated to Pakistan on the eve of partition, they were evacuees in terms of the definition I of the evacuee as given in clause (d) of Section 2 of the Act No. 31 of 1950 and the property belonging to them was the evacuee property. Therefore, applying the ratio of the judgment in Begum Noorbanu and others v. Deputy Custodian General of Evacuee Property (supra) to the case in hand, the only persons who could raise grievance of not receiving notice were Fazaldin and others and not the defendants, who were only tenants under the mortgagees and cannot be termed as interested persons. In fact their tenancy rights under the mortgagees in respect of land in dispute which was evacuee property stood terminated on the redemption of mortgage, which had taken place automatically by operation of law. Since the mortgagors were evacuees and the mortgagees were non-evacuees, the land I in dispute was composite property as per the definition given under I Section 2(d)(ii) of the Evacuee Interest (Separation) Act, 1951. Further the liability of mortgage incurred by the evacuee was the mortgage debt as defined under Section 2(f) of the said Act, which reads as under:— “(f) "mortgage debt" means any liability in respect of a property due under any form of mortgage (including any usufractuary mortgage or mortgage by conditional sale) whether such liability is payable presently or in future or under any decree or order of a Court or otherwise, or whether ascertained or not, which— (i) in any case where it is incurred by an evacuee, is secured by the mortgage of the interest of the evacuee in the property in favour of a person, not being an evacuee; (ii) in any case where it is incurred by a person not being an evacuee, is secured by the mortgage of the interest of such person in the property in favour of an evacuee; but does not include any such liability of an evacuee arising out of any transaction entered into after the 14th day of August, 1947 unless such transaction has been confirmed by the Custodian under the Administration of Evacuee Property Act, 1950." 10. Further, Section 9(2) of the Evacuee Interest (Separation) Act, 1951 provides for determination of mortgage debt, inter alia, on the expiry of period of twenty years from the date of execution of mortgage. Further, Section 9(2) of the Evacuee Interest (Separation) Act, 1951 provides for determination of mortgage debt, inter alia, on the expiry of period of twenty years from the date of execution of mortgage. It is:— "Where a mortgagee has taken possession on any terms whatsoever of any agricultural land and is entitled to receive profits accruing from the land and to appropriate the same, every such mortgage shall be deemed to have been taken effect as a complete usufractuary mortgage and shall be deemed to have been extinguished, on the expiry of the period mentioned in the mortgage deed or twenty years, whichever is less, from the date of the execution of the mortgage deed; and if the aforesaid period has not expired and the mortgage debt has not been extinguished, the competent officer shall determine the mortgage debt due having regard to the proportion which the unexpired portion of that period bears to the total of that period." 11. On coming into force of the above provision the mortgage in respect of the land in dispute was deemed to have been extinguished as it was admittedly of more than 20 years from the date of execution of the mortgage. The order in this regard was passed on 28.1,1971 and mutation Ex. P-11 was also attested. 12. A perusal of the document Ex. P-8 in respect of mutation of allotment of land in dispute in favour of Smt. Taj an shows that vide order dated 7.12.1967 passed in case Tajan v. Custodian, she was declared allottee. In these facts and circumstances on record this Court finds that the District Judge has correctly read and interpreted the relevant provision of Act No. 31 of 1950 and the Evacuee Interest (Separation) Act to hold that the land in dispute j is evacuee property and it stood redeemed automatically by operation of law as the mortgage was of more than 20 years old, as a result of which the rights of mortgagees as well as of the defendants being tenants under the mortgagees, stood extinguished. Further, as discussed hereinabove no notice under sub-section (1) of Section 7 of Act No. 31 of 1950 was required to be given to the defendants being tenants. Moreover, the jurisdiction to make a declaration under i. sub-section (3) of Section 7 of Act No. 31 of 1950 that a particular j! Further, as discussed hereinabove no notice under sub-section (1) of Section 7 of Act No. 31 of 1950 was required to be given to the defendants being tenants. Moreover, the jurisdiction to make a declaration under i. sub-section (3) of Section 7 of Act No. 31 of 1950 that a particular j! property is evacuee property is not conditional on the availability j of the notice under Section 7(1) of Act No. 31 of 1950. The observations u made by the Division Bench of Patna High Court in Md. Sharifuddin v. R.P. Singh and another, AIR 1957 Patna 235, can be read with advantage in this respect. Therefore, both the substantial questions of law are answered in negative. 13. The result of above discussion is that there is no merit in this appeal and it is dismissed. There is no order as to costs. Appeal dismissed.