Smt. Banto Devi and Others vs Smt. Tajan

P.K. Palli, J.—This second appeal has been filed by Appellants/Defendants feeling aggrieved against the judgment of reversal. Suit for possession filed by Smt. Tajan, Plaintiff/Respondent was dismissed by the learned trial Court and the appeal filed by her stands allowed by the learned first appellate Court resulting in the decree for possession in favour of the Plaintiff/Respondent The parties, hereinafter in the judgment, would be referred to as ''Plaintiff'' and ''Defendants''.

The suit out of which this appeal has arisen, was filed by the Plaintiff seeking decree of possession in respect of the suit land alleging that she is recorded as owner of the suit land as ''HISEDAR'' in column No. 5 of the Jamabandi of the year 1971-72. Undisputedly, this land was earlier in possession of one Fazzaldin, Naviv Bakash, Jaimaldin Mohammad and Gulam Mohammad who were Mohammadan Gujjars and migrated to Pakistan on the eve of partition and the property is said to have been treated and declared evacuee property.

The aforesaid Fazzaldin and Ors. mortgaged the suit land in favour of one Gopala son of Kahna who sold his mortgagee rights in favour of Bali Ram, Kalyanoo Naranjan Dass, Ram Chand and Krishan Kumar, sons of one Sobnu and consequently they became mortgagees in place of Gopala The Plaintiff claims to have been allotted this land by the Custodian u/s 20A of the Displaced Persons Compensation and Rehabilitation Act and mutation bearing No. 114 dated January 18, 1968 was sanctioned in her favour.

One Mohau who was the father of Jaisi Ram (predecessor-in-interest of the Defendants/Appellants), is recorded as a tenant on the suit land under Gopala, mortgagee and for the relevant period Fazzaldin and Ors. have been recorded as mortgagors/owners This was the position in the year 1947. The land is said to have been redeemed by operation of law as it was evacuee property and the rights of the mortgagee, if any, came to an end With the end of the right of the mortgagee, the rights of tenancy of Mohan and the predecessor in interests of the Appellants/Defendants, who was his son, also stood extinguished. The Plaintiff, thus, sought a decree for possession against Jaisi Ram and Shiv Ram who were sons of Mohan who was recorded as a tenants over the suit land under the mortgagees.

The Defendants while laying contest to the suit, claimed that there is relationship of landlord and tenant between the parties and the mortgagees were necessary parties to the suit. It was also stated that the suit land is recorded as ''Shamlat Deh'' and could not be held to be the property of the Mohammadans, i e. Fazzaldin and Ors. and thus it is not an evacuee property. The Defendants claim themselves to be the tenants from the times of their forefathers and a plea has been raised that the mortgage is still subsisting and the Plaintiff has no right of redemption. The title of the Plaintiff over the suit land is also denied.

On appreciation of the evidence placed on record by the parties, the learned trial Court under issue No. 1 returned a finding that the property is not evacuee property as there no notice followed by a notification u/s 7 of the Administration of Evacuee Property Act (31 of 1950). It was also held that since the suit land is not evacuee property, the same could not be allotted to the Plaintiff under the Displaced Persons Compensation Rehabilitation Act, 1954 and, thus, the Plaintiff is not the owner of the land in suit It was also held the Jamabandi Ext P 2 of the year 1940-41 does not show as to who was the mortgagor of the suit land but Jamabandi Ext. P-3 of the year 1944-45 does show Fazzaldin and Ors. are recorded as mortgagors and thereafter the land is shown under the mortgagee in several documents comprising entries from the record-of-rights It was also held that the land is not free from any encumbrance or that the mortgage deed has been determined by the competent authorities. The learned trial Court also held that Mohan, father of the predecessor-in-interest of the Appellants, is recorded as non-occupancy tenant in several Jamabandis comprising Exts P-4, P-10, D-7, D 8, P-7 and D-9 as well as D-10 and D-11 and they are in cultivating possession under mortgagees Bali Ram and Ors. . The trial Court also returned a finding that the mortgagees are necessary parties and the Defendants are not liable to be dispossessed from the suit land and they would continue to be recorded as tenants under the mortgagees The suit was consequently ordered to be dismissed in view of the aforesaid findings.

The learned first appellate Court allowed the appeal filed by the Plaintiff resulting in the decree claimed by her The finding recorded by the learned trial Court on issue No. 1 holding that the suit land is not evacuee property, was set aside and it has been held that the suit land is an evacuee property The learned first appellate Court also returned a finding that the redemption of mortgage takes place automatically by operation of law and further terminates the rights of the tenancy created by the mortgagee. There was no privity of contract between the mortgagors and the tenant inducted by the mortgagee. It has been held that the mortgagor is the State Government after the land came to vest in the Custodian and stands redeemed and further that the Defendants have no right, title or interest in the suit land,

Mr. Bhupender Gupta, learned Counsel appearing for the Appellants/Defendants, contends that notice u/s 7 of the aforesaid Act followed by a notification is a condition precedent for holding the property to be evacuee. Since no notification has been placed on record, the judgment of the learned trial Court is correct that the property is not evacuee property. Mr. Gupta is at pains to contend that in the absence of the notice and notification, the learned first appellate Court could not assume the property to have become evacuee automatically when the mortgagors haying migrated to Pakistan It is further contended that there was no such things as automatic vesting and the learned first appellate Court was not correct in holding that Section 46 of the aforesaid Act is a complete bar to the filing of the present suit for the purposes of holding that the land in question is an evacuee property or not. Learned Counsel has also brought to my notice the provisions contained in the Evacuee Separation Act as well as Section 8(1) of the aforesaid Act and submits that Sub-section (2) of this section cannot be read in isolation. The learned Counsel has also cited case law to support his contention.

Mr. N. K. Thakur, learned Counsel appearing for the Plaintiff, in reply, has adopted the same line of reasoning which has been projected by the learned first appellate Court in the impugned judgment. Mr. Thakur has further placed reliance on Sub-section (2) of Section 8 of the aforesaid Act and contends that there is complete vesting of the property in the Custodian as an evacuee property and there was absolutely no necessity for any notice or notification u/s 7 of the Act for the purposes of declaring the property to be evacuee. It is sought to be contended that the mortgagors were Mohammadan Gujjars who left this country and migrated to Pakistan on account of the partition of the country and were thus evacuees as given in the definition and, therefore, the suit land was rightly allotted to the Plaintiff who is Mohammadan lady and had not migrated to Pakistan. Reference has also been made to the entries comprising Jamabandis of the year 1940-41 (Ext. P-2), 1944-45 (Ext P-3), 1952-53 (Ext P-4) as well as to the allotment order Ext. P-8 and Ext, P-11.

After hearing the learned Counsel for the parties at length and on careful perusal of the impugned judgment and record, I find that in the Jamabandi Ext P-2 pertaining to the year 1940-41 in the proprietary column it is recorded as ''SHAMLAT TIKKA HASAB RASAD ZARE KHEWAT MANDARJA SHAJRA NASAB''. In the cultivation column No. 5 Fazzaldin and Ors. are recorded in equal share as ''HISSEDARS''. It is also recorded that they are mortgagors and one Gopala is recorded as mortgagee as well as ''GAIR MORUSEE'' under them. In Jamabandi Ext. P-3 of the year 1944- 5, the entries are the same. In Ext. P-4, the entry in the proprietary column is the same but in the column of cultivation after recording Fazzaldin and Ors. as ''HISSEDARAN MAHAJRIN. REHNAN'', the names of Bali Ram, Sohnu in equal shares are recorded as mortgagees and after them one Mohan son of Jodha is recorded as ''GAIR MORUSEE'' under Bali Ram and Ors. i e. mortgagees.

Ext. P-6 is the mutation by virtue of which the mortgagee rights stood sold in favour of Bali Ram, Sohnu and Ors. Interestingly, in the cultivation column of this document, ''KASHT BADASTOOR'' is recorded. This mutation was sanctioned on March 20, 1952. In the Jamabandi of the year 1965-66 (Ext. P-7), the entries in column No 4 remained the same and in cultivation column after recording Fazzaldin and Ors. as mortgagors, Bali Ram and Ors. are recorded as mortgagees and Mohan son of Jodha is recorded as ''GAIR MORUSEE'' under the mortgagees.

Ext. P-8 is the crucial document which is mutation in favour of the Plaintiff In this document in column No. 15 a gist of the English order is given along with the nature of the case and date of decision. The ownership was ordered to be changed in the case filed by Smt. Tajan. i.e. the Plaintiff, against the Custodian and refers to an order dated December 7, 1967 It was in sequence of this order that mutation was ordered to be sanctioned in favour of the Plaintiff. The Assistant Collector while sanctioning the mutation also refers to an order of an Officer in favour of Tajan, Plaintiff and it is on the basis of that order that the mutation was ordered to be carried out in her favour. In the entry that was changed in favour of Tajan widow of Barkat All, she was recorded as mortgagor and Ram Lal and Ors. as mortgagees. In column No. 4 of this document it is recorded as ''ARAJI MATROOKA BILA ALLOT RAHAN'' and Ram Lal and Ors. as mortgagees Column No. 13 also makes out an important reading. It is recorded therein that the ownership of the mortgagee and redemption is made vide order of the Government and order of the Naib Tehsildar and Managing Officer and ''DAKHAL RAPAT'' was recorded on December 12, 1967, Column No. 15 pertaining to report also records about the change of mutation as per orders.

In my considered view, this document though technically it may not be considered as a document of title yet certainly records the mutation of redemption as well as change of ownership in favour of the Plaintiff and this was in sequence of some case filed by the Plaintiff against Custodian reference to which has been made therein. These were official acts carried out by the competant authority, i.e. Naib-Tahsildar-cum-Managing Officer. There is also a reference to the order of the Government The land is recorded as unallotted and the names of Fazzaldin and Ors. stood scored off vide this mutation. There thus remains no doubt that the property was accepted and declared as evacuee property as the share-holders, i.e. the mortgagor who were Mohammadans, had left this country and migrated to Pakistan. They can safely be termed as evacuees as defined in the Act and, therefore, simply because the notification u/s 7 of the Act has not been placed on record cannot be held to be fatal to the Plaintiff. In ''FARD TAKSEEM ARAJI MATROOKA'' Jamabandi of the year 1952-53 in column No. 4 pertaining to the name of allottee, the words are ''BILA ALLOT'' In column No 6, Mohan son of Jodha is recorded as ''GAIR MORUSEE'' under Bali Ram and Ors. i e mortgages In this document the names of Fazzaldin and Ors. do not appear and the land is recorded as unallotted

14 Ext P-11 is the mutation of redemption in respect of mortgage. This was sanctioned on May 29, 1971. The order is important and there it is recorded that "in the open ''IJLAS'' Tajan ''RAHAN'', Kastoor Chand, mortgagee of evacuee property, were present. As the mortgage is more than 20 years old, the same is redeemed on no payment in favour of Tajan". This document also reveals that the property was evacuee property and was redeemed by operation of law as the mortgage was more than "0 years old. The name of the Plaintiff consequently appeared under the ownership column in the Jamabandi Sanction of mutation in respect of redemption is by the Managing Officer and it is too well know and understood that these authorities could deal with the property only when the same has been held by a competent authority as evacuee property.

Entries comprising in documents Exts. D-l. D-2, D-3, D-4, D-7, D-8, D-9 and D-10 need not be referred to as many of these documents are in duplicate, i e having been filed by the Plaintiff and in the Ors. Mohan, the predecessor-in-interest of the present Appellants/Defendants, is recorded as ''GAIR MORUSEE'' under the mortgagees, There is no dispute with these entries.

The matter can be viewed from Anr. angle also. It is not understood as to whom the notice as envisaged by Section 7, should have been given. The argument raised by Mr. Gupta simply cannot be appreciated as all what the Defendants claim is that they are the tenants over the suit land under the mortgagees. I am of considered opinion that no notice was necessary to be sent to the Defendants who are simply tenants. Notice, of course is absolutely necessary to the persons interested in the property and this is a pre-condition for declaring it to be evacuee property. A tanant by no means can be held to be a person interested in the property. The whole idea of issuance of notice is for the purposes of providing an opportunity to the person whose property, in the opinion of the Custodian, is evacuee property. It is only that person who can make a grievance and would satisfy the Custodian that he is not an evacuee as defined in the Act and his property cannot be declared as such. This would certainly mean that notice will go only to a person who has not migrated to Pakistan Once it has been found by the authorities, having the jurisdiction under the Act, that the property is evacuee, it would not be necessary to give any notice u/s 7 of the Act as is sought to be projected by Mr. Gupta The only person who could be said to be interested and aggrieved, would be the person who might lay claim that the property belongs to him and is not evacuee property. The provisions of the Act completely bars the jurisdiction of the Civil Court to determine whether a particular person was or was not ane vacuee or whether a particular property is evacuee or not. Determination of the nature of the property is left solely to the Custodian and the authorities under the statute. The definition of evacuee property would also cover the property which is said to be under mortgagee. The evacuee has only a right in the mortgaged property and this right is confined to the equity of redemption only it can also be safely held that the jurisdiction to make a declaration u/s 7(3) of the Act that such properties are evacuee properties, is not conditional on the validity of the notice u/s 7(1) of the Act. Observations made by the Hon''ble Division Bench of the Patna High Court reported in Mt. Dulhin Shyam Sunder Koer Vs. Mt. Sheorachan Kuer, can be read with advantage in this respect.

In Anr. Division Bench decision of the Punjab and Haryana High Court reported in 1973 PLJ 398, Gram Sabha and Gram Panchayat Daba v. The Chief Settlement Commissioner and Ors. it has been held that the share of evacuees of in the ''Shamilat'' land of the village in which there were Muslim proprietors who had migrated to Pakistan, continue to vest in the Custodian of evacuee property.

The Plaintiff came to be recorded as a mortgagor in the Jamabandi of the year 1971-72. The present suit was filed on October 6, 1972 by the Plaintiff The Defendants, even assuming were not aware of the proceedings in respect of sanction of mutation in Plaintiff''s favour redemption of land, came to know of it at least when the suit was filed. The Act is a complete code in itself and the Defendant were at liberty to lay challenge to the allotment in favour of the Plaintiff as well as to the order of redemption. Section 46 of the Act completely bars the jurisdiction of the Civil Court to entertain or adjudicate upon any question whether any property or any right or interest in any property is or is not evacuee property. The provision also bars the jurisdiction to question the legality of any action taken by the Custodian General or the Custodian under the Act. It is also laid in Sub-section (d) that in respect of any matter which the Custodian General or the Custodian is empowered by or under this Act to determine, the Civil Court shall have no jurisdiction.

The learned first appellate Court has exhaustively dealt with the matter after taking into consideration all the relevant provisions of different statutes which are even remotely attracted to resolve the present controversy. The judgment has taken into account all these documents which were referred to by the learned Counsel for the parties and I have also taken into consideration these documents in sufficient detail to resolve the present controversy. The redemption of mortgage was something automatic and is a creation by operation of law. As there was no contract between the mortgagor and the tenant inducted by the mortgagee, the Defendants cannot be heard to say that they are tenants and have a right to continue over the suit land as such. The mortgagees, thus, could not confer upon the Defendants a better title than what they themselves possessed. The impugned judgment, in the given situation, is perfectly just and proper and calls for no interference in second appeal by this Court. The same is based on proper appreciation of evidence as well as the provisions of law on the point.

20 The appeal has, thus, no force and is consequently ordered to be dismissed with no order as to costs.