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2003 DIGILAW 167 (PNJ)

Harbilash Singh v. State Of Punjab

2003-01-29

N.K.SODHI

body2003
Judgment N.K.Sodhi, J. 1. One Wali Mohammad son of Gulam Bakhash, resident of village Bhekhowal, Tehsil and District Hoshiarpur was the owner of agricultural land measuring 83 kanals 5 marlas (hereinafter referred to as the land in dispute). He had mortgaged the same with three persons, namely, Rur Singh son of Disa Singh, Dalip Singh so of Rur Singh and Ghasita Ram son of Rur Singh who are the predecessors-in-interest of the petitioners herein. Wali Mohammad migrated to Pakistan at the time of the partition of the country in the year 1947. Dalip Singh and Ghasita Ram filed an application in the year 1965 before the Assistant Custodian, Punjab with a request that they be declared owners of the land in dispute on the basis of the mortgage which was more than 60 years old as the same had not been redeemed. It is the case of the petitioners that this application was rejected on the ground that 60 years had not expired when the Evacuee Interest (Separation) Act, 1951 (for Short the 1951 Act) had come into force. The predecessors-in-interests of the petitioners are also said to have made an application to the Tehsildar (Sales), Hoshiarpur for the transfer of the land in dispute to them at the reserved price on the basis of some instructions dated 6,7.1963. This application, too, was dismissed. On the death of Dalip Singh and Ghasita Ram, the petitioners were entered as cultivators in possession of the land in dispute and the Centra! Government was shown as the owner thereof and this is clear from the jamabandi for the year 1979-80. It is also alleged by the petitioners that Dalip Singh and Ghasita Ram were required to deposit eight times the land revenue as rent to enable them to purchase the land in dispute and that they deposited the same as per challan copy of which is Annexure P-2 with the writ petition and, therefore, they became the owner. The respondents then allotted some of the land in dispute to respondent No. 3 and 4 by auction and it is the this allotment which is under challenge in this petition filed under Article 226 of the Constitution. 2. In response to the notice issued by this Court the respondents have filed their written statements controverting the averments made by the petitioners. 2. In response to the notice issued by this Court the respondents have filed their written statements controverting the averments made by the petitioners. In the reply filed by the Tehsildar (Sales), Hoshiapur, it is specifically averred that the mortgaged land (i.e. land in dispute) was redeemed in favour of the Central Government without payment of compensation and mutation No. 1221 was sanctioned on 28.4.1965 in this regard and that the petitioners never remained in possession of the land in dispute thereafter. A copy of the mutation has been attached as Annexure R-3/1 with the written statement filed by respondents No. 3 and 4. 3. I have heard counsel for the parties and am of the view that the writ petition deserves to be dismissed. It is true that the predecessors-in-interest of the petitioners, namely, Rur Singh, Dalip Singh and Ghasita Ram were the morgagees with possession of the land in dispute which belonged to a Muslim evacuee who migrated to Pakistan in 1947. According to Sub-section (2) of Section 9 of the 1951 Act, 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 usufructuary 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 earlier, from the date of the execution of the mortgage deed. It is the petitioners own case that the land in dispute had been mortgaged with them for the last more than 60 years. It, therefore, stood extinguished in terms of Section 9(2) of the 1951 Act and the Central Government became the owner of the evacuee property (land in dispute) which was mutated in its name on 28.4.1965 as per mutation No. 1221. Once the Central Government became the owner of the land in dispute, petitioners could not claim that they were the owners thereof. This apart, there is nothing on the record to show that Dalip Singh and Ghasita Ram had ever been asked to deposit eight times the land revenue as rent to enable them to purchase the land and that they became the owners on the said deposit. They have attached a challan form showing that a sum of Rs. This apart, there is nothing on the record to show that Dalip Singh and Ghasita Ram had ever been asked to deposit eight times the land revenue as rent to enable them to purchase the land and that they became the owners on the said deposit. They have attached a challan form showing that a sum of Rs. 20.72 p. had been deposited in the Government Treasury, but this challan form by itself is no proof of the fact that Dalip Singh and Gasita Ram became the owners or that the amount had been deposited for purchasing the land. If they were allowed to purchase the land, there must have been an order passed by some competent authority in this regard but no such order has been placed on the record and I am clearly of the view that the claim made by them that they became owners on the deposit of Rs. 20.72 P, is without any basis. It is admitted that the land was auctioned by the official respondents in terms of the policy framed by the State Government under the Punjab Package Deal Properties (Disposal) Act, 1976. It appears that after the Central Government became the owner of the land in dispute the same was transferred to the State Government as package deal property and then the same was put to auction when respondents No. 3 and 4 purchased the same. In this view of the matter, no fault can be found with the action of the respondents in auctioning the land and allotting the same to respondents No. 3 and 5. Since the petitioners have no right over the land in dispute, they cannot challenge the allotment made in favour of respondents No. 3 and 4. 4. In the result, the writ petition fails and the same dismissed with no order as to costs.