JUDGMENT Mr. K. Kannan, (Oral) J. - The writ petition is at the instance of persons who claim to be in possession of certain shops and they seek to assail the order passed by the District Judge who is the appellate authority under The Evacuee Interest Separation Act, 1951. The appeal had been brought at the instance of the third respondent Dr. Rewa Ram who claimed that he was an assignee of mortgagee’s interest and the property not having been redeemed within the period of limitation he had acquired title to the property. The “competent of­ficer”, as a Court of first instance had rejected the third respondent’s claim and the said order had been reversed in appeal. The petitioners were cited as respondents before the District Judge since they had themselves independently sought the properties to be allot­ted by the “competent officer”. Respondent Nos.2 and 3 had also been cited as respon­dents by virtue of the fact that they had claimed in the proceedings before the Rent Con­troller initiated by the third respondent that they were themselves the owners and conse­quently the third respondent had sought for an adjudication in their presence. The writ petitioners therefore seek for the relief that they are themselves owners entitled to the al­lotment and that the finding rendered in favour of the third respondent that he had be­come owner of the property was erroneous. 2. Certain more facts are required to be stated for rendering the adjudication. The property comprised of two shops and they were originally held in ownership by one Noor Mohd. He had mortgaged the property to one Manmohan and Balkrishan and put the mortgagees in possession by document dated 18.2.1939. The mortgagees Manmohan and Balkrishan had transferred the mortgagee’s interest to the third respondent Dr. Rewa Ram on 4.4.1952. The property however was not retained in possession by Dr. Rewa Ram but he had executed rent deeds in favour of the two persons who in turn were said to have executed the sub-leases. The leases and the sub-leases are matters for adjudica­tion in independent proceedings and they are not necessary for consideration in this writ petition, although the writ petition has been brought for hearing along with the matters in civil revision against rent control proceedings. 3. The leases and the sub-leases are matters for adjudica­tion in independent proceedings and they are not necessary for consideration in this writ petition, although the writ petition has been brought for hearing along with the matters in civil revision against rent control proceedings. 3. The proceedings before the authorities under the Evacuee Interest Separation Act of 1951 came about in view of the Rent Control proceedings where the Rent Controller had questioned the right of the third respondent as the landlord and allowed for the sub­tenants to contend that they were themselves the owners of the property. The application at the instance of the mortgagee third respondent was at a time when he faced obstruc­tion to his claim as a landlord and therefore sought for the relief under the Act of 1951. Since the property which was admittedly originally held in ownership by a person who had migrated to Pakistan at the time of partition, it becomes essential also to examine the manner of legal derivation of title and the tenability of the respective contentions which were made by the petitioners and the respondents. 4. Learned counsel appearing on behalf of the petitioners would contend that the property which was held by Noor Mohd. On his migration to Pakistan, became an “evacuee property and held to be vested under Pepsu Ordinance No.17 of 2000 BK and the property that was vested with the Custodian could not be claimed by the third re­spondent as belonging to him. His contention would be that by virtue of Section 8(2) of the Vesting of Administration of Evacuee Property Act that displaced the ordinance, the property stood vested in the State as evacuee property and by virtue of sub-Section (4), after evacuee property had vested in the custodian, any person who was in possession shall be deemed to hold on behalf of the custodian. If the petitioners themselves were to be seen as in the possession of the property their possession must be seen only under the Custodian and the impugned order finding the third respondent as having become the owner of the property by the mortgage not having been redeemed within the time prescribed by law, was erroneous. 5. The property in dispute admittedly falls within the then Pepsu area. 5. The property in dispute admittedly falls within the then Pepsu area. The learned Senior Counsel appearing on behalf of the third respondent would join issues on the contention that no proceedings had been taken under the Pepsu Evacuee Administration of Property Ordinance and consequently, the effect of vesting under the Ordinance could not be urged by the petitioners. The reference to this ordinance, however, becomes nec­essary for the manner of vesting that the Ordinance contemplated is relatively at vari­ance with the vesting as contemplated under the Administration of Property Act, 1950. The issue regarding nature of vesting and the requirement of no specific order under the Ordinance had been a subject of consideration by the Division Bench of this Court in Jagatjit Distilling & Allied Industries Ltd. v. The Deputy Custodian General, India, (1963)65 P.L.R. 328 . This case came on a reference to a Division Bench by one of the Judges Justice Grover, as he then was, who had earlier taken a view that without a spe­cific overt act by the State the evacuee property cannot vest in it. Reference, however, was felt necessary by the Judge when there was a different view taken by the Supreme Court in Azizun Niza v. Asstt. Custodian, A.I.R. 1961 S.C. 365. This judgment of the Supreme Court was in the context of a U.P. Ordinance,3 which contained similar provi­sions of vesting evacuee property in the United Provinces with the custodian and the Su­preme Court held that there would be an automatic vesting by the promulgation of Ordi­nance itself. The Division Bench was therefore considering the like provisions in other Ordinances issued from other states as well as and while considering the issue of effect of the Ordinance issued by the then Kapurthala State examined also the provisions of Pepsu Evacuee Administration of Property Ordinance. The Division Bench held that in line with the judgment of the Supreme Court in Azizun Niza’s case (supra) there would be an automatic vesting with the result that by virtue of the provisions contained in the Pepsu Ordinance 17 of 2000 BK and later under Ordinance 27 of 1949 the property would become vested and continued to vest in the Custodian under the Central Act of 1950. Dealing with the contention that Section 6 of the Ordinance required the custodian to notify from time to time either by publication in the official gazette or in such a man­ner as might be prescribed the evacuee property vested in him under the Ordinance, the Court held that the land in question which admittedly belonged to muslim evacuee vested in the Custodian under the Pepsu Ordinance 17 of 2000 BK and by virtue of the subsequent clause it continued to vest in the Custodian. 6. The subsequent law that came about is the Administration of Evacuee Property Act, 1950 Section 8(2) of the Act of 1950 consists of two pacts (i) that deals with prop­erties which were declared to be evacuee property under Section 7 and (H) that deals with properties which become vested before the commencement of the Act under any law repealed under the Act of 1950. Admittedly, there were no proceedings taken under Section 7 of the Administration of Evacuee Property Act, 1950. Therefore, we will have to turn to clause (2) which reads as follows:­- “Where immediately before the commencement of this Act, any property in a State had vested as evacuee property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby, the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest. Provided where at the commencement of this Act, there is pending before the High Court, the Custodian or any other authority for or in any State any proceeding under Section 8 or Section 30 of the Administration of Evacuee Property Ordinance, 1949 (XII of 1949), or under any other corresponding law repealed by the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949), then notwithstanding anything contained in this Act or in any other law for the time being in force, such proceeding shall be disposed of as if the definitions of ‘evacuee property’ and “evacuee” contained in Section 2 of this Act had become applicable thereto”. Reading the provisions of the Pepsu Ordinance and Act of 1950 as interpreted by the Division Bench in Jagatjit Distilling’s case (supra), it is evident that the property would become vested in the custodian and it did not require any specific action in the manner contemplated under Section 7 of the Act of 1950. 7. The property that was evacuee property cannot be a matter of doubt at all. How­ever, when the evacuee property was also attached to non-evacuee interest it assumes a different character called the “composite property” dealt with specifically under the Evacuee Interest (Separation) Act, 1951 an the relevant Rules of 1951. They make spe­cial provisions for the separation of interest of evacuees from those of other persons in respect of property in which other persons are also interested. The nature of interest which the Act contemplates includes specifically a mortgagees interest and a mortgagee also has been empowered under the Act to make a claim as defined under Section 2(b) of the Act of 1951. The claim shall be in relation to “composite property” which is dealt with by separate definition under Section 2(d) of the 1951 Act. To the extent to which it concerns us in this case, “composite property” includes an interest, “in which the inter­est of a person not being an evacuee is subject to mortgage in any form in favour of a person not being an evacuee” (See Section 2(d)(ii) of 1951 Act). In this case Dr. Rewa Ram was not an evacuee but he held by way of assignment a mortgagee’s interest in evacuee property. A claim which Section 2(b) contemplates includes an assessment by any person, not being an evacuee of any interest and title in any property as “a mortga­gee of the interest of an evacuee in the property”. Section (2(b)(ii)). 8. The Act sets out a procedure by which a separation of interest could be made. Section 7 of the Act contemplates submission of claims that includes a claim by mortga­gee for a particular money and the rate of interest chargeable under the mortgage. This provision makes it possible for the mortgagee in possession of property under a mort­gage debt to make a claim and seek for enforcement of such a right. It is to be remem­bered immediately that it is a facilitative provision and does not render an automatic ex­tinguishment of the mortgage itself. This provision makes it possible for the mortgagee in possession of property under a mort­gage debt to make a claim and seek for enforcement of such a right. It is to be remem­bered immediately that it is a facilitative provision and does not render an automatic ex­tinguishment of the mortgage itself. This is clear from the fact that Section 10 sets out the manner in which separation of interest of evacuees from those of the claimants in composite property is to be made under the Act. Clause (b) of the said Section provides specifically for the manner of separation of interest, in the case of a claim of a mortga­gor or a mortgagee. The said provision contemplates three types of reliefs (i) pay to the custodian or the claimant the amount payable under the mortgagee debt and redeem the mortgage property; (ii) sell the mortgaged property for satisfaction of mortgage and debt and distribute the sale proceeds thereof or (iii) partition the property between the mort­gagor and the mortgagee having regard to the share to which the mortgagee would be entitled in lieu of his claim. These provisions therefore make it clear that a vesting which the 1950 Act contemplates shall not liquidate the mortgage automatically. Intact Section 10 of the Act has a non-obstante clause by setting out that the procedure for en­forcement of the right shall be notwithstanding anything to the contrary or any decree. Consequently, Section 10 of 1951 Act must be taken as providing for enforcement of a claim by a mortgagee irrespective of the vesting which the Pepsu Ordinance of the 1950 Act make possible. It would have been therefore possible for the third respondent Dr. Rewa Ram to make a claim under Section 7 and seek under Section 10 for either the amount payable under the mortgage or seek for sale of the property for satisfaction of the debt or to partition the property between the custodian in whom the property vested and himself as a person who held a mortgagee’s interest. 9. In this case it is an admitted position that the custodian did not force a sale or separation of interest. The mortgagee also had not applied for separation of interest in the manner contemplated in any of the three modes contemplated under Section 10. 9. In this case it is an admitted position that the custodian did not force a sale or separation of interest. The mortgagee also had not applied for separation of interest in the manner contemplated in any of the three modes contemplated under Section 10. The resultant situation would only be that a property that has become vested with the Custo­dian is still subject to the interest which the third respondent Dr. Rewa Ram had. So long as the interest was not separated through any application filed at his instance, the mortgagee cannot become an owner automatically. A clichid expression but that is still an axiom at law is, once a mortgage always a mortgage. So long as the mortgage was not redeemed by the Custodian, the mortgagee’s interest cannot be enlarged as a full owner. If through the order passed by the District Judge as an appellate authority the finding has been that the third respondent Dr. Rewa Ram has become absolute owner of the property itself, it is erroneous. However, the issue that has still to be seen is whether the petitioners who claim to be in possession of the property in their own could claim any right and seek for any adjudication in relation to the property which is claimed by the third respondent. 10. Learned counsel appearing on behalf of third respondent brings to the attention of this Court an order already passed by the Competent Officer, Punjab on 7.6.1983 in the proceedings which the petitioner had initiated before this Court:­ “The Tehsildar(Sales), Patiala would make further enquiry into the matter to make out a case for entitlement of the property for the separation of evacuee and non-evacuee interest through the Custodian with competent officer, and after the property is got re­deemed by the Custodian from the non-evacuee mortgage, the property will become available for disposal. The shop in dispute cannot be disposed of as evacuee property without recourses to the proceedings under the Evacuee Interest (Separation) Act, 1951. The present petition is disposed of with the above observations. Announced.” 11. The order issued by the competent officer on 7.6.1983 had itself become final and this was not at any time challenged by the petitioners. In my view the order passed by the Competent Officer is correct and states the legal position in a fitting manner. The present petition is disposed of with the above observations. Announced.” 11. The order issued by the competent officer on 7.6.1983 had itself become final and this was not at any time challenged by the petitioners. In my view the order passed by the Competent Officer is correct and states the legal position in a fitting manner. The property itself could not have been disposed of by the Custodian as free hold to a person who claims to be in possession of the property. Such a course would not be possible, unless there had been a separation of interest in the manner contemplated by the 1951 Act. Learned counsel appearing on behalf of the petitioners however would argue that the property would become vested in the Custodian free from encumbrances by virtue of Section 11 of 1951 Act. Section 11 frees a property from encumbrances in respect of matters where had been a separation of interest in the manner contemplated under Sec­tion 10. The Administration of Evacuee Property Act itself cannot do any more than vesting the property of an evacuee, as such the nature of vesting of the equity of re­demption. If a property of an evacuee was subject to mortgage interest and the mortgage had not been redeemed, it shall be impermissible either for the custodian or a person who claims some interest in the property as a person in possession to ask for the prop­erty to be relieved free of the mortgage interest and be transferred to the person in pos­session. This issue has been considered by the Supreme Court in the judgment in Ban­wari Lal v. Regional Settlement Commissioner, A.I.R. 1965 S.C. 1885. The Supreme Court was setting out the procedure to be followed under Section 7 of the Administra­tion of Evacuee Property Act and the nature of vesting of that an evacuee property which was subject to mortgage. This issue has been considered by the Supreme Court in the judgment in Ban­wari Lal v. Regional Settlement Commissioner, A.I.R. 1965 S.C. 1885. The Supreme Court was setting out the procedure to be followed under Section 7 of the Administra­tion of Evacuee Property Act and the nature of vesting of that an evacuee property which was subject to mortgage. The Court also considered the effect of Section 10 of 1951 Act in the following words:­- “Section 10 of this Act empowers the competent officer to take all necessary measures for the purpose of separating interest of the evacuee from those of the claimants in any composite property which inter alia means any property which or in which an interest has been declared to be evacuee property or has vested in the custodian under the act and in which the interest of the evacuee is subject to mortgage in any form in favour of a person not being an evacuee. It is only after such separation of the interest of the evacuee and the claimants in the composite property that the evacuee interest gets vested in the Custodian free from all encumbrances. It follows that so long as proper action under the Evacuee Interest (Separation) Act is not taken to separate the interest of the evacuee and the appellants who claim to be mortgagees, the Custodian cannot take any action against the appellants or their tenants who are said to be in possession for the property in suit”. 12. This is an affirmation of the legal position that we have already seen by dealing with the relevant provisions of the 1950 Act and 1951 Act. The petitioners cannot there­fore stake any claim to the property as persons in possession through the custodian nor can the petitioners contend that the mortgagee’s interest would be completely extin­guished. At the same time I have also to hold that the finding given by the District Judge as an appellate authority that the property became the absolute property of the third respondent as owner is not in conformity with law and the said finding is vacated. The order of the District Judge will therefore be understood as merely affirming the mortgagee’s interest. It cannot affect in any way, by the passing of the 1950 Act, vest­ing the property in the custodian. The petitioners who seeks for an assertion of right un­der the Custodian cannot also survive. The order of the District Judge will therefore be understood as merely affirming the mortgagee’s interest. It cannot affect in any way, by the passing of the 1950 Act, vest­ing the property in the custodian. The petitioners who seeks for an assertion of right un­der the Custodian cannot also survive. The petitioners can have no relief in the writ peti­tion and the claim making an assertion through the Custodian ought to fail. Their claims will be dealt with independently in the civil revisions which are brought for adjudication simultaneously with this case. The writ petition is disposed of on the above terms. ---------------------- J