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2004 DIGILAW 1311 (PNJ)

Jaswant Singh Gidda v. Daulat Ram

2004-12-02

ADARSH KUMAR GOEL

body2004
Judgment Adarsh Kumar Goel, J. 1. The respondent-plaintiffs filed a suit for possession claiming declaration of having acquired title to the suit land, which was mortgaged to them by some Muslims, who migrated to Pakistan and since the property was not redeemed within limitation, the plaintiffs became owners. It was stated that the defendants were earlier tenants under the plaintiffs but they refused to pay rent claiming that Rehabilitation. Department allotted the suit land to them. It was stated that since the plaintiffs had become owners prior to coming into force of the Evacuee Interest (Separation) Act, 1951 (for short, the 1951 Act), the said Act was of no consequence. 2. The appellant-defendants contested the suit and claimed that by operation of law under the provisions of 1951 Act, mortgage was extinguished and the property was vested statutorily in the custodian who transferred the same to the defendants. It was further stated that in view of the Special Act, Civil Court jurisdiction was barred. Reference was also made to the provisions of the East Punjab Evacuees (Administration of Property) Act, 1947 and the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short, the 1954 Act). 3. The trial Court decreed the suit. It was held that limitation for redemption expired in the year 1950, mortgage having been created in April 1980 while the 1951 Act came into force on 31.10.1951. 4. On appeal, the decree of the trial Court was affirmed. 5. Learned counsel for the appellants submitted that following substantial questions of law arise for consideration;- "(a) What is the effect of Act known as East Punjab Evacuees (Administration of Property) Act, 1947 and the Administration of Evacuee Property Ordinance, 1949 and Restitution of Mortgages Lands Act, 1938 ? (b) Whether jurisdiction of the Civil Court is barred under Section 46 of the Administration of Evacuee Property Act and Sections 36 and 27 of the Displaced Persons (C&R) Act, 1954 to try the suit in the civil Court when the property has been treated as evacuee property and allotted to displaced person in lieu of his claim? (c) Whether it is not necessary to plead and prove the date of mortgage before claiming right, title and interest under the said mortgage? (d) Whether it is necessary to prove the nature of mortgage created in favour of the plaintiff by the Muslim? (c) Whether it is not necessary to plead and prove the date of mortgage before claiming right, title and interest under the said mortgage? (d) Whether it is necessary to prove the nature of mortgage created in favour of the plaintiff by the Muslim? (e) Whether the evacuee land vested in the Custodian under the East Punjab Evacuees (Administration of Property) Act, 1947 and has rightly been allotted to Kesar Singh displaced person in the year 1950 and present suit has been filed in the year 1979 for possession clearly shows that the suit is time barred? (f) Whether the property in dispute is in possession of the appellant as owner and in possession since the date of its purchase on 13.6.1957 from the allottee and the said right has not been questioned by anybody till the year 1979 is not sufficient to prove adverse possession or at least the present suit beyond limitation to assert right title in the property?" 6. It was submitted by the learned counsel for the appellants that the Courts below failed to notice that the 1951 Act replaced the East Punjab Evacuees (Administration of Property) Act, 1947 and, therefore, period of limitation had not expired when the statute extinguishing mortgage came into existence for the first time on 13.12.1947. It was also submitted that in any case, the question whether mortgage in question was extinguished or not, had to be decided by the authorities specified under the Special Act and not by the civil Court. Reliance is placed on the decisions the Apex Court in Custodian, Evacuee Property, Punjab and Ors. v. Jafran Begum, A.I.R. 1968 S.C. 169; B.M. Lall (dead) by his legal representatives and Anr. v. Dunlop Rubber Co. (India) Ltd. and Anr., A.I.R. 1968 S.C. 175 and decisions of this Court, in Union of India etc. v. Kharati Lal etc., 1973 Current Law Journal 31; Arjan Dass v. The State of Punjab, 1973 Current Law Journal 35 and Darbara Singh v. The Union of India and Anr., (1972)74 P.L.R. 381. 7. None has appeared for the respondents. They are proceeded against exparte. 8. v. Kharati Lal etc., 1973 Current Law Journal 31; Arjan Dass v. The State of Punjab, 1973 Current Law Journal 35 and Darbara Singh v. The Union of India and Anr., (1972)74 P.L.R. 381. 7. None has appeared for the respondents. They are proceeded against exparte. 8. After hearing learned counsel for the appellants, I am satisfied that a substantial question of law does arise for consideration as to whether on 13.1.1947, equity of redemption which was a property of the evacuee, was vested in the Custodian under Section 4 of the 1947 Act and rights of the mortgagees were extinguished and they could claim their rights only as per the provisions of the 1947 Act. The same legal position continued under subsequent Act in the year 1951 as interpreted in a decision of this court in Kharati Lal (supra). 9. There is merit in the submissions made on behalf of the appellants. By virtue of statutory provisions, rights of evacuee got vested in the custodian, interest of the mortgagees was extinguished and they could put forward their claim before the specified authorities under the statute. The courts below were, thus, in error in distinguishing the decisions in Kharati Lal, Jafran Begum, Darbara Singh (supra). 10. The answer to the question has, thus, to be in favour of the defendant-appellants and it has to be held that equity of redemption of the evacuee vested in the Custodian free from all encumbrances and, therefore, mortgagees could not claim to have become owner on the ground of failure of redemption of mortgage, when the limitation for redemption expired only in April 1950, as per the case of the plaintiffs themselves. Accordingly, this appeal is allowed. Judgment and decrees of the court below are set aside and the suit of the respondent-plaintiffs is dismissed. There will be no order as to costs.