Jagir Singh and Another vs Ganga Ram and Another

R.L. Anand, J.—Unsuccessful plaintiffs Jagir Singh and Ranjit Singh sons of Kishan Singh have filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 13.11.1991 passed by the Court of Additional district Judge, Ferozepur, who affirmed the judgment and decree dated 6.12.1989 passed by the Sub-Judge, Ist Class, Zira, who dismissed the suit of the plaintiff-appellants for declaration as prayed for.

The brief facts of the case arc that plaintiffs Sarvshri Jagir Singh and Ranjit Singh filed a suit for declaration that they are owners in possession of the land measuring 25 kanals 2 marlas as detailed and described in the heading of the plaint situated in the area of village Chuchakwind and that the allotment of the land measuring 16 kanals 3 marlas being 2/3rd share of the land measuring 24 kanals 1 marla is void and the defendants be restrained from asserting their ownership over the said parcel of land and they be further restrained from taking the possession from the plaintiffs.

The case set up by the plaintiffs is that the land measuring 25 kanals 2 marlas is owned by them in equal shares. However, land measuring 16 kanals 3 marlas being 2/3rd share of the land measuring 24 kanals 4 marlas detailed in the plaint was sub-mortgaged in the year 1945 by Ram Singh son of Karam Singh, resident of village Chuchakwind without possession in favour of Dara and others for a sum of Rs. 500/- without the consent and knowledge of the owners. The owners, however, remained in possession of the whole of the land. The land in dispute is thus a composite property. Owners did not move any application for the separation of the evacuee property u/s 11 of the Evacuee Interest (Separation) Act, 1951. It is further averred by the plaintiffs that by virtue of the letter No. Rule 2 (252) - G7/2833-44 dated 20.5.1975, the Revenue Department entered the mutation in favour of the Central Government which was sanctioned. It is alleged by the plaintiffs that the land has been allotted by the Central Government in favour of defendant No. 1 Ganga Ram vide allotment letter No. F.2/356/1 issued by the Sales and Rehabilitation Department, Punjab, Chandigarh and these orders have been implemented by the Managing Officer, Zira vide order dated 6.3.1987. Plaintiffs'' case is that the land in dispute has not been declared evacuee u/s 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and it could not be allotted particularly when the procedure laid down in Rule 93 of the said Act has not been followed and the land in dispute could not automatically vest in the Central Government by virtue of the instruction which cannot over-ride the provisions of the Act. It is also alleged by the plaintiffs that Department of Rehabilitation on realising the mistake issued Memo No. G.7/R. 1 (242) 5113-5124 dated 10.4.1981 and ordered thereunder that in case any such land has been transferred/auctioned necessary steps be taken for getting the transfer/auction cancelled. Inspite of the said instructions the revenue staff, Zira did not cancel the mutation sanctioned in favour of the Central Government. The mutation in favour of Central Government does not confer any title in it. Defendant No. 1 wants to dispossess the plaintiffs forcibly on the basis of the illegal allotment; hence the plaintiffs had prayed for declaration ,o the effect that they are owners of the property and it did not vest in the Central Government. Defendant No. 1 was also sought to be restrained from interfering in the possession of the plaintiffs.

The suit was contested by defendant No. 1. Though at one stage defendants No. 2 and 3 filed separate written statement. But later on defendant No. 2 was deleted vide order dated 21.1.1988 passed by the trial Court. The plea of defendant No. 1 in the written statement is that the Civil Court has no jurisdiction to try the suit as its jurisdiction is barred u/s 16 of the Punjab Package Deals Property (Disposal) Act, 1976 read with section 17 of the same Act; that the suit is barred by limitation and that the plaintiffs have no locus standi to file the suit. On merits, it was pleaded by defendant No. 1 that the land in dispute vested in the Central Government which was later on taken over by the State of Punjab under Punjab Package Deals Property (Disposal) Act, 1976. This defendant denied the plea taken up by the plaintiff regarding the land having been sub-mortgaged by Ram Singh son of Karam Singh in the year 1945 in favour of Dara and others and regarding the evacuee interest not having been separated under the Evacuee Interest (Separation) Act, 1951. The order of allotment has not been challenged by the plaintiffs before the Competent Authority so far and the property in dispute has been dealt with by the Managing Officer in a legal and valid manner. The plaintiffs have no right to question the validity of the Act of 1976 or the process regarding the allotment of the suit land. In the previous suit brought by the plaintiffs, defendant No. 1 hard made a statement that he would take the possession of the suit land in due course of law and by filing the present suit, the plaintiffs intend to usurp the rights of defendant No. 1, who was legally competent to take the possession. By denying the other allegations of the plaintiff, defendant No. 1 prayed for the dismissal of the suit.

Defendant No. 3 also took similar objections as taken up by defendant No. 1 Ganga Ram and has affirmed that the suit land has been rightly allotted to defendant No. 1 vide Goshwara No. 3984/Tehora dated 21.4.1986 by the Tehsildar (Sales), Headquarter and later on Tehsildar (M) Sales Zira, allotted the suit land vide allotment order No. F2/36/I Tatima dated 6.3.1987.

On the above pleadings of the parties, the trial Court framed the following issues:-

Whether land in dispute has been wrongly included in the evacuee land? OPP

Whether defendant No. 3 is not competent to allot the land? OPP

Whether the civil Court has no jurisdiction to try the suit? OPD

Whether the suit is barred by the principle of resjudicata? OPD

Whether the suit is barred by limitation? OPD

Whether the plaintiff has no locus-standi to file the present suit/ OPD

Relief.

The parties led oral and documentary evidence in support of their case. On the conclusion of the trial issues No. 1 to 3 were decided against the plaintiffs. Issue no. 4 and 5 were decided against the defendants. Issue No. 6 was again decided against the plaintiffs and finally their suit was dismissed.

Aggrieved by the judgment and decree passed by trial Court, the plaintiff-appellants filed the first Appeal in the Court of District Judge, Ferozepore who vide judgment and decree dated 13.11.1991 affirmed the judgment and decree of the trial Court and dismissed the appeal. Still not satisfied with the findings of the Courts below, the present appeal.

I have heard Shri Ravinder Chopra, Advocate, on behalf of the appellants and Shri G.S. Nagra, Advocate, on behalf of contesting respondents and with their assistance have gone through the record of this case.

Before me, the learned counsel for the appellants has assailed the findings of the trial court on issues No. 1 and 2 only and I shall confine my discussion on these issues. Assailing the findings of the Courts below on the above issues, it was submitted by the learned counsel for the appellants that there was no order of declaration by which the land in dispute evacuee property and in the absence of such declaration u/s 12 of the Evacuee Interest (Separation) Act, 1951, the property could not be allotted by the Central Government or by the State Government in favour of defendant No. 1. The second argument was that before allotment of the land in favour of defendant No. 1, the Central Government or the State Government did not issue any notice to the plaintiffs who are admittedly in possession of the property and as such the alleged allotment in favour of defendant No. 1 cannot bind the interest of the plaintiffs. According to the plaintiffs, the property remained composite throughout. It was also submitted by the learned counsel for the appellants that the defendants have not placed on record the notification by which it has been declared that the land in dispute had become the evacuee land and as such it has vested in the Government.

On the contrary, learned counsel appearing on behalf of the respondents has relied upon two citations reported as Kundan and Ors v. Union of India and Ors. (1969) 71 P.L.R. 106 and Sadhu Ram and Ors. v. Union of India and Ors. 1987 (1) All LR 190 and submitted that it stands proved from the record that the property became evacuee automatically when the mortgage has not been redeemed and it has been distinguished. Once the property is evacuee and it has vested in the Central Government, the latter is competent to allot the land in favour of defendant No. 1. Learned counsel for the respondent has also drawn my attention to the documentary evidence and oral evidence, which has been led by the parties in support of their case.

After considering the rival contentions of the parties, I am of the considered opinion that this appeal is devoid of any merit. The record of the trial Court shows that Kishan Singh, father of the plaintiffs and Bishan Singh are recorded to have mortgaged 42 Kanals 3 marlas of land with Ram Singh son of Karnam Singh and this fact is evident from the jamabandi Ex. P.8 for the year 1941-42. Again in the jamabandi Ex. P.9 for the year 1945-46 Kishan Singh and Bishan Singh aforesaid have been shown as co-sharers and mortgagors while Ram Singh son of Karam Singh has been recorded as a mortgagee. Further the record shows that Ram Singh further mortgaged his mortgage interest with Dara son of Dula and Nazim Din son of Kutabdin Mohammdans and it is further clear that mortgage was with possession and on the basis of sub-mortgage Dara and Kutabdin entered into the possession of the land. Again as per jamabandi for the year 1959, Ex. P.15 Jagir Singh and Ranjit Singh, present plaintiffs have been recorded as mortgagors while Ujagar Singh, Sudagar Singh, Babu Singh sons of Nishan Singh to be the mortgagees and who are further recorded to be the mortgagors while Sarjit Singh, Harjit Singh, Savinder Singh and Rup Singh sons of Jasmel Singh to be the mortgagees for 1/3rd share while custodian to be the mortgagee of 2/3rd share regarding the land measuring 24 kanals 4 marlas. This position becomes clear that earlier mortgage executed by Kishan Singh was with possession with Ram Singh who sold his mortgage rights with Dara who further mortgaged his mortgage rights. Dara and Outabdin, whose interest vest in the Govt. and in this manner, the Central Govt. has been recorded in the revenue record as mortgagee. The case set up by the plaintiffs is that the mortgage executed by Kishan Singh was without possession which is not born out from the record as is evident from the jamabandi Ex. P.9 for the year 1945-46 from which it is evident that Ram Singh original" mortgagee subsequently mortgaged his interest in favour of Dara and Nazim Din who have been recorded as mortgagees and it is also evident from the jamabandi Ex. P.15 for the year 1959-60. At no point of time, the father of the plaintiffs got redeemed the land either from Ram Singh or from Dara or Nazim Din. In these circumstances it has to be held that the mortgage executed by Kishan Singh was mortgage with possession and it was not redeemed within 20 years from the date of mortgage or from the date specified in the mortgage. Resultantly, the right of redemption stood extinguished and the property vested with the Govt. as per section 9(2) of the Separation of Evacuee Interest Act, which lays down that 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 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 of twenty years, whichever is less, from the date of 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". Twenty years have already elapsed before the allotment by the Government in favour of defendant No. 1. With the expiry of this period, the property automatically vests in the Govt. and on account of the extinguishment of the mortgage deed as per section 9 of the Separation Act, 1951 (supra), and this view has been affirmed in (1969) 7 P.L.R. 106 Kundan Singh v. Union of India, relied upon by the learned counsel for the respondents, wherein it has been held as follows:-

"That it makes no difference that the original mortgage was by a Hindu. As soon as the Muslim evacuee purchased the land from the mortgagor or what may be said to be equity of redemption, he became the owner of the suit land itself which would be deemed to have been mortgaged by him (the muslim evacuee) within the meaning of section 9(2)".

Once the property has legally vested in the custodian, then the Govt. was competent to deal it. Section 4 of the East Punjab Evacuee (Administration of Property) Act, 1947 lays down that all evacuee properties situated within the province shall vest in the custodian for the purpose of the said Act and shall continue to be vested until the Principal Govt. by notification otherwise directs. This provision deals with the argument of the learned counsel for the appellants that formal order was required to be passed before declaring the property as evacuee and before the allotment of the land in favour of defendant No. 1. In Sadhu Ram and Ors. v. Union of India and Ors. 1987 (1) All LR 190, it was held that the jurisdiction of the Civil Court in respect of the evacuee property is barred. Whether there is an extinguishment of rights or not with respect to a particular mortgage, no finding can be given by civil Court and only custodian can determine whether evacuee has any interest in the property or not. In the present case with the extinguishment of the mortgage in favour of Ram Singh and thereafter in favour of Dara and Qutabdin, the property became evacuee automatically and custodian became the incharge. The Civil Court did not have any jurisdiction to entertain the suit.

The arguments raised by the learned counsel for the appellant that no notice was given to the plaintiffs before the allotment of land to defendant No. 1 is also devoid of any merit. Learned counsel for the appellants has not been able to show any law or rule either under the Evacuee Interest (Separation) Act or under the Displaced Persons (Compensation and Rehabilitation) Act or under the Administration of Property Act, 1947 which might envisage requirement of Rules of natural justice before the allotment of land in favour of defendant No. 1. Once the allotment is held to be valid in favour of defendant No. 1, the plaintiffs cannot resist taking of the possession which is being taken under due process of law. The plaintiffs are also not entitled to any declaration regarding his ownership with the extinguishment of the mortgage. The jurisdiction of the civil court is barred by suit or revision under sections 36 and 42 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. Thus I affirm the findings of the trial Court on all the issues including issues No. 1 and 2 which had gone against the plaintiffs and seeing no merit in this appeal, dismiss the same leaving the parties to bear their own costs.