Madan Lal vs Union of India (UOI) and Others

Jawahar Lal Gupta, J.—The suit of the plaintiff appellant for a declaration that the plaintiff has become the owner alongwith proforma defendant Nos. 5 to 21 of the land measuring 29 kanals 19 marlas on account of the lapse of time and failure of the mortgagor to redeem the mortgage and for injunction restraining the Union of India alongwith the three other defendants from allotting the property to any other person having been dismissed by the two Courts below, he has corns to this Court in the present appeal. . A few facts may be noticed.

The plaintiff appellant claims that the suit land was mortgaged in the year 1874 by Ahmam son of Rahim, Jimmu and Musaddi sons of Hukam Jiwa son of Salu, Dara, Rana, Jaggu and Sahu to Phulla, Balak Ram and Bakhtawar Singh, predecessors-in-interest of the appellant and defendant Nos. 5 to 21. A copy of the farad jamabandi in support of this assertion was produced alongwith the plaint. It is further averred that the land having not been redeemed the appellant and other co-mortgagees became the owners in possession as the right of redemption had been extinguished on the lapse of 60 years in 1934. When after the partition of the country in the year 1947, the Rehabilitation Department instead of acknowledging the right1 of the appellaat and other co-mortgagees entered a mutation in favour of the Union of India on July 5, 1975 and even threatened to allot/ auction the property, the plaintiff appellant instituted the suit out of which the present appeal has arisen

A written statement was filed on behalf of the defendant-respondents, in which besides raising certain preliminary objections relating to the maintainability of the suit and the jurisdiction of the Civil Court to try the controversy, it was averred that the land in dispute was owned by the muslims and after their migration to Pakistan, all their rights/interests stood vested in the Custodian, of the State u/s 4 of the East Punjab Evacuees (Administration of Property) Act, 194 7, It was further averred that on the promulgation of Central Act No. 31 of 1950, viz the Administration of Evacuee Property Act, 1950, the property came to vest in the Custodian under sub-section 2A of Section 8 of the 1950 Act. It has been further averred that the land in dispute is a composite property as defined by clause (d) of Section 2 of the Evacuee Interest (Separation) Act, 1951 and since 20 years had already expired, by virtue of the provision of Section 9(2) of the said Act, the mortgage stood redeemed and extinguished by operation of law. On these premises, it is claimed that the plaintiff-appellant had no right, title or interest in the property. Further averment of the plaintiff that the land was allotted during consolidation proceedings in lieu of the land which was the subject matter of the mortgage was admitted The averment of the plaintiff in paragraph 8 that he had continued to be in possession of the land was, however, denied. On these pleadings, the learned trial Court framed the following issues : -

Whether the suit laud was allotted during the consolidation proceedings to the plaintiff and other co-mortgagees in lieu of the land belonging to Muslim Evacuees and held by them under the charge of mortgage ? OPP.

Whether the mortgage in question was created in the year 1874 and mortgagors had lost their right of redemption in the year 1947, at the time of their migration to Pakistan, as alleged? OPP.

Whether the plaintiff and other mortgagees have become owners of the suit land consequent upon extinction of right of redemption, as alleged ? OPD.

Whether this court has no jurisdiction to try this suit ? OPD,

Whether the plaintiff has no locus standi to file this suit, as pleaded in para No. 2 of the preliminary objections ? OPD.

Whether the suit is barred under the principle of resjudicata ? OPD.

Whether the land in dispute was a composite property and by virtue of provisions contained in Section 9(2) of the Evacuee Interest (Separation Act), 1951, the charge of mortgage automatically stands redeemed and extinguished, as alleged ? OPD.

Relief

Learned trial Court found issue No. 1 in favour of the petitioner and Issue Nos. 2 and 3 against him. Issue Nos. 4, 5 and 6 were found against the respondents and Issue No. 7 in their favour. As a result the suit was dismissed. The learned lower Appellate Court addressed itself to the question as to whether the right of redemption had been extinguished at the time the evacuee owners migrated to Pakistan. It held that the limitation for bringing a suit for redemption is to be counted from the date when the right to redeem or to recover possession accrues. This had to be determined according to the terms of the mortgage. It held that the plaintiff was required to allege and prove the specific mortgage and its terms and conditions. Since such a plea was not raised nor any evidence led, it held that the plea that the plaintiff appellant had become the owner of the property on account of the lapse of time could not be sustained. Aggrieved by the judgment and findings of the Court, the appellant have approached this Court in the present appeal.

Mr. V. K. Jain, learned counsel for the appellant, contends that in a case where no date for redemption of a mortgage is specified, the mortgage can be redeemed on the very next day of its creation and that the limitation would start from that date. On this basis, he contends that the property having been mortgaged in the year 1874, the right of redemption stood extinguished in the year 1934.

In the written statement filed on behalf of the defendant-respondents it has no where been pleaded that the right of redemption bad not accrued in the year 1874. It is not pleaded that there was any clog on the equity of redemption as a result of which the period of limitation had not to start running from the year 1874. The only plea taken on behalf of the respondents is to the effect that the property had come to vest in the Custodian by operation of law. It is in the background of this position that the validity of the plea raised by the appellant has to be examined.

The maximum period during which a mortgagor could institute a suit against a mortgagee to redeem or to recover possession of immovable property is 60 years from the date when the right to redeem or recover possession accrues, Reference in this behalf can be made to Article 148 of the Limitation Act, 1908 (Which was the Act in force at the relevant time). Further a perusal of the evidence on record indicates that the land had been mortgaged prior to the year 1887-88. Shri Ram Ditta Kanungo, who appeared as D.W. 2, has categorically stated that "the land in dispute was the property belonging to Muslims. As per record, the land in dispute was under mortgage prior to the year 1887-88 After the consolidation in lieu of the old numbers, the new numbers were allotted which were given in the plaint. As per my record the suit land vested in the Custodian Department, vide letter No. 2(95)(i) S/31559-658/63, dated 6-7-1963." This statement is corroborated by the entries in the revenue record, copies of which have been produced as Exhibits P. 1 to P. 7 and P. 10.'' A copy of the jamabandi for the year 1887-88 is at Exhibit P. 10. in which it is mentioned that the land was under mortgage That being the position, it can safely be assumed that the land had been mortgaged atleast prior to the year 1887. The period of 60 years would consequently expire in the year 1946. No suit for redemption had admittedly been brought till then. Consequently the right of the evacuees/ mortgagors stood extinguished on the date of the expiry of 60 years.

It is no doubt correct that in the plaint it has not been specifically mentioned as to when the right to redemption had extinguished. However, it is clearly stated that the land was mortgaged in the year 1874 and that "in the year 1947, the right of redemption was lost, as 60 years had already lapsed prior to the partition of the country and before that, even the original muslim owners were not entitled to get the land redeemed on account of lapse of time..:..." In reply to this averment, it was no where pleaded that there was a subsisting mortgage or that the right of redemption had not extinguished. In such a situation, the findings of the Courts below cannot be sustained. ,

There is another aspect of the matter. It is the admitted position that the plaintiff appellant was in possession of the property since the year 1962. Prior to that his predecessors-in-interest had been in possession. D.W. 1, an accountant from the office of the Tehsildar (Sales), appeared on behalf of the respondents and had stated that "there is no record regarding the property in dispute. I do not know if there is any record in our department in which this property has been entered as an evacuee property." Mr. Ramditta D. W. 2, is another witness who had appeared, and had inter-alia stated that the property in question was not got redeemed by anybody within a period of 20 years and as such it became the evacuee property As already noticed, it is claimed that the land came to vest in the Custodian department vide order dated July 6, 1963. In this behalf it is relevant to notice the provisions of Sections 7 and 7A of the Administration of Evacuee Property Act, 1950. It is inter-alia provided as under : -

"7. Notifications 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 sub-section (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).

7-A. Property not to be declared evacuee property on or after 7th May, 1954.-Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May, 1954 :

Provided that nothing contained in this section shall apply to-

(a) any property in respect of which proceedings are pending on the 7th day of May, 1954 for declaring such property to be evacuee property ; and

(b) the property of any person who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances had left on or after the 1st day of March, 1947, any place now forming part of India, and who en the 7th day of May, 1954 was resident in Pakistan.

Provided further that no notice u/s 7 for declaring any property to be evacuee property with reference to Clause (b) of the preceding proviso shall be issued after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954."

A perusal of the provisions of Section 7 would show that before arriving at a conclusion that any property is evacuee property, it is incumbent on the Custodian to give a notice thereof to the interested persons and hold such inquiry as the circumstances of the case permit. It is only thereafter that an order declaring the property to be evacuee property can be passed In the present case, even though it is claimed on behalf of the respondents that the property was evacuee property and thus came to vest in the Custodian, it has not even been stated that any inquiry as envisaged u/s 7 was held. There is not even any evidence on record to show that the property was declared to be evacuee property as contemplated u/s 7. The oral evidence only suggests that the property was declared to be evacuee in the year 1963. Prima facie this was contrary to the provisions of Section 7A which inter-alia contemplated that no property should be declared to be evacuee property on or after the 7th of May, 1954.

All these matters are relevant for finally and effectively deciding the dispute between the parties. As no evidence has been led, if is not possible to give a firm finding either way in this appeal. Accordingly, it appears to be in the interest of justice that the judgment and decree of the Courts below are set aside. The case be and is remanded to the learned trial Court for fresh decision after giving the parties an opportunity to lead evidence on the following issue :-

"Whether the property is evacuee property ? If so, to what effect? OPD."

Keeping in view the fact that the dispute has been pending since the year 1975, the Court may consider the possibility of an expeditious disposal. No costs.