Punjab-Haryana High Court
Illyas And Ors. vs Tallok Chand And Ors. on 3 September, 2004
Equivalent citations: AIR2005P&H94, (2004)138PLR803, AIR 2005 PUNJAB AND HARYANA 94, (2005) 1 RECCIVR 45 (2004) 3 PUN LR 803, (2004) 3 PUN LR 803
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the first Appellate Court whereby suit for declaration and for permanent injunction was dismissed in appeal.
2. The plaintiffs have sough declaration inter-alia on the ground that they are entered as mortgagees with possession with respect to the agricultural land measuring 28 Kanals 13 Marias as detailed in the plaint. An area measuring 14 kanals 15 marlas, i.e. 2338/4516th share in the land measuring 27 kanals 13 marlas has been auctioned by defendants No.l to 4 in favour of the defendant No. 5 on 16.1.1991. The custodian has wrongly been entered as mortgagors of the said share in the suit land. The plaintiffs are also having some share in the suit land but are recorded as mortgagees of the entire land for times immemorial for the last more than 100 years. Some or the Muslims became evacuees and the share of the said co-sharers came to vest in the custodian and the said share is 2338/4516.
3. In the written statement filed on behalf of defendants No. l to 4 it was the stand of the defendants that the suit was mortgaged by the predecessor-in-interest of muslim evacuees vide Mutation No. 54 dated 1.8.1908 and decided on 15.8.1908 in favour of the predecessors-in-interest of the plaintiffs for Rs. 10/-. On migration of the muslims to Pakistan in the year 1947 their share automatically vested in custodian under section 4 of the East Punjab Administration Evacuee Property Act,1947 (hereinafter referred to Evacuee Local Act). The said land automatically vested in custodian free from all encumbrances under section 9(2) of Evacuee Interest (Separation) Act, 1951 (hereinafter referred as Evacuee (Separation Act) as the period of 20 years from the date of mortgage has already expired on the enforcement of the said Act.
4. On the basis of respective pleadings of the parties, the following issues were framed by the learned trial Court.
1. Whether the plaintiffs are owners in possession of the suit land and entitled to the relief of injunction as prayed for? OPD
2. Whether the civil court has no jurisdiction to entertain and try the present suit? OPD
3. Whether the suit is barred by the period of limitation in time? OPD
4. Whether the present suit is had for non compliance of the provisions under section 80 CPC? OPD
5. Relief.
5. Voluminous evidence in the shape of revenue record was produced. The learned trial court held that the mutation Ex.P12 was sanctioned on 27.2.1889 from Ladwi in the name of Mallu which was recorded as a mortgagee in khasra No. 291. After referring to the revenue records, the argument was raised that on the date when Evacuee Separation Act came into force in 1951, 60 years had already expired and plaintiffs have thus, become owners in possession of the suit land as the same was not redeemed in time. It was held that since no proceedings under section 7 of the Act have been proved to have been initiated, therefore, land does not vest in the custodian. Thus, it concluded that mortgagors of the suit land have failed to get redeem the suit land within the prescribed period of limitation and thus, the plaintiffs are liable to be declared as owners in possession of the suit property. However, the learned first Appellate Court set aside the judgment and decree passed by the learned trial court on the ground that the plaintiffs have admitted the factum of migration of some persons to Pakistan and therefore, their share to the extent of 2338/4316 vested automatically in the custodian. On the basis of the statement of PW1 Illiyas, the court held that the land belonging to persons who migrated to Pakistan vested in custodian and so the entries in favour of the custodian cannot be said to be wrong. It also held that if the plaintiffs were aggrieved against any action of Union of India, State of Haryana or Tehsildar (Sales), they could avail the remedy available to them under Special statutes. Still further no notice was required to be given to the plaintiffs for allotment of land vested in Government as the property of persons who migrated to Pakistan vested in custodian under the Evacuee Separation Act and Evacuee Local Act.
6. Before referring to the arguments raised by the learned counsel for the appellants it would be advantageous to reproduce the pleadings of para No. 4 of the plaint which read as under:-
4. That as stated above, defendants No.l to 4 are stated to have sold in open auction an area measuring 14 kanals 15 marlas which is 2338/4516 share in the land measuring 27 kanals 13 marlas fully detailed in para No. 3 of the plaint in favour of defendant no. 5 on 16.1.1991. Araji Matruka i.e. Custodian is entered as Mortgagor of the said share in the suit land. The plaintiffs are also having some share in the said land as co-sharers/owners. However, they are recorded as mortgagees of the entire land subject matter of the suit from times immemorial for the last more than 100 years as stated above. Some of the Muslims became evacuees and the share of the said co-sharers mortgagors came to vest in the custodian and the said share is 2338/4516 in the said land.
7. A perusal of the said averment made in the plaint shows that migration of muslims at the time of partition is not disputed and that their share is 2338 out of 4516. It is also not disputed that the share of mortgagors vest with the custodian. However, what is sought to be disputed is that the share of the mortgagors vested with the custodian after the expiry of 60 years of the mortgage and by that time the mortgagors have lost their right to redeem the land. Therefore, the appellants have perfected their title on account of failure of the mortgagor to redeem the land within the prescribed period of limitation. Learned counsel for the appellants in support of his argument has relied upon Dr. Rajendra Prakash Sharma v. Gyan Chandra and Ors., A.I.R. 1980 S.C. 1206; State of Punjab v. Ram Rakhe, 1998(3) R.C.R. (Civil) 124 (S.C.) as well as single bench judgment in this court reported as The Union of India and Ors. v. Arshad,3 1981 P.L.J. 510; Parma Nand v. Sucha Singh,4 1997(2) R.C.R. (Civil) 127 and Union of India v. Odey Singh and Ors., 5 (2002-2) 131 P.L.R.74.
8. However, I am unable to accept the said argument raised by the learned counsel for the appellants. Before proceeding further some legislative history would be relevant.
9. After partition of the country, the Ordinance No. 4 of 1947 was promulgated known as East Punjab Administration Evacuee Property Act, 1947 (Evacuee Local Act). By virtue of such Ordinance, a custodian General was appointed to take care of the property of the evacuees who was defined to mean a person displaced from usual place of Habitation. Said Ordinance was amended by Ordinance No. 2 of 1948 on 16.1.1948. The evacuee under section 2(D) of the Amended Act was to mean, a person ordinarily resident within the territories in the province of East Punjab but on account of civil disturbances or fear of disturbances lost or has since 1.3.1994 left the said territory for a place outside India. Under section 4 of the Evacuee Local Act, all Evacuee property situated within the province is deemed to be vested in custodian for the purpose of said Act. Section 2(b), 2(c) and section 4 of the said Act, as amended reads as under:
East Punjab Administration Evacuee Property Act, 1947:
2. Definition.- In this Act unless there is any thing repugnant in the subject or context.
(a) xx xxx
(b) Evacuee means a person ordinarily resident in or owning property or carrying on business within the territories comprised in the province of East Punjab who on account of civil disturbances, or the fear of such disturbances, or the partition of the country:-
(i) leaves, or has since the first day of March, 1947 left the said territories for a place outside lndia, or
(ii) cannot personally occupy or supervise his property or business.
(c) Evacuee property includes all property in which an evacuee has any right or interest but does not include any moveable property in his immediate physical; possession.
(d) xxxxxx
4. Vesting of evacuee property in the Custodian.- All-evacuee property situated within the province shall vest in the Custodian for the purposes of this Act and shall continue to be so vested until the Provincial Government by notification otherwise directs.
10. The Evacuee Local Act is deemed to be repealed on the promulgation of Administration of Evacuee Property Ordinance No. XXVII of 1949 which was replaced by Administration of Evacuee Property Act No. 31 of 1950 which came into force on 7.4.1950. The Act was amended from time to time. Some of provisions of statute relevant for the purpose of the present appeal reads as under:
Administration of Evacuee Property Act, 1950
2. Definitions.- In this Act, unless the context otherwise requires.-
(d) evacuee means any person-
(i) who on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbance or the fear of such disturbances, leaves or has, on or after the first day on March, 1947, left any place in a state for any place outside the territories now forming part of India;
or
(ii) who is resident in any place now forming part of Pakistan and for that reason is unable to occupy, supervise or manage in person his property in any part of the territories to which this Act extends or whose property in any part of the said territories has ceased to be occupied supervised or managed by any person or is being occupied, supervised or managed by an unauthorised person, or
(iii) xxx (1) Evacuee property means any property or any evacuee (whether held by him as owner or as trustee or as a beneficiary or as a tenant or in any other capacity, and includes any property which has been obtained by any person from an evacuee after the 14th day of August 1, 1947 by any mode of transfer, which is not effective by reason of the provision contained in section 40, but does not include-
(i) any ornament and any wearing apparel, cooking vessels, or other house-hold effect in the immediate possession of an evacuee;
(ii) any property belonging to joint stock company the registered office of which was situated before the 15th day of August, 1947 in any place now forming part of Pakistan and continues to be so situated after the said date;
8. Vesting of evacuee property in the custodian.- (1) Any property declared to be evacuee property under section 7 shall be deemed to have vested in the custodian for the state-
(a) in the case of the property of an evacuee as defined in Sub-clause(l) or clause (d) of section 2, from the date on which he leaves or left any place in a state for any place outside the territories now forming part of India;
(b) in the case of the property of an evacuee as defined in Sub-clause (ii) of clause (d) of section 2, from the 10th day of August 1947; and
(c) in the case of any other property,from the date of notice given under sub-section (3) of section in respect thereof.
2. Where immediately before the commencement of this Act, any property in a Slate 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 that 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 proceedings under section 8 or section 30 of the Administration of Evacuee Property Ordinance, 1949 (XII of 1940), 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 definition of evacuee property and evacuee contained in section 2 of this Act had become applicable thereto, (2A) without prejudice to the generality of the provisions contained in sub-section (2), all property which under any law repealed hereby purports to have vested as evacuee property in any person exercising the powers of custodian in any state shall, notwithstanding any defect in or the invalidity of such law or any judgment, decree or order of any court be deemed for all purposes to have validly vested in that person as if the provisions of such law had been enacted by Parliament and such property shall on the commencement or the Act, be deemed to have been evacuee property declared as such within the meaning of this Act and accordingly any order made or other action taken by the Custodian or any other authority in relation to such property shall be deemed to have been validly and lawfully made or taken.
58. Repeals and savings.- (1) The Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949) and the Hyderabad Administration of Evacuee Property Regulation (Hyderabad No.XII of 1359F) are hereby repealed.
(2) If immediately before the commencement of this Act, there is in force in any state to which this Act extends, any law which corresponds to this Act and which is not repealed by sub-section (i),that corresponding law shall stand repealed.
(3) The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949), or the Hyderabad Administration of Evacuee Property Regulation (Hyderabad No. XII of 1359F) or of any corresponding law shall not affect the previous operation of that Ordinance, Regulation or corresponding law, and subject thereto anything done or any action taken in the exercise or any power conferred by or under that Ordinance, Regulation or corresponding law, shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken.
The Evacuee Interest (Separation) Act, 1951.
3. Act to override other laws.- Save as otherwise expressly provided in this Act, the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law.
9. Certain reliefs in respect of mortgaged property of evacuees.- (1) Notwithstanding anything to the contrary in any law or contract or any decree or order of a civil court or other authority, where the claim is made by a mortgagee, no mortgaged property of an evacuee shall, subject to the provisions of sub-section (2) be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced or deemed to have been advanced.
(2) 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 been 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 or twenty years, whichever is less from the date of the 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.
11. As per the case of the plaintiff, the mortgage was effected on 27,2.1989. As per the law then applicable mortgagor had 60 years limitation to seek redemption of the land. Such 60 years would expire on 26.2.1949. Before the expiry of the period of redemption, by virtue of Section 4 of the Evacuee Local Act all evacuee property situated within the province of East Punjab vested in custodian and continued to be vested with the custodian in terms of Section 8(2) lead with section 58 of the Administration of Evacuee Property Act, 1950.
12. Since the property vested with the custodian in terms of the statutory provisions, the same continued to be vested in to Central Government or its agencies it has been held by Hon'ble Supreme Court in the judgment reported as Haji Siddix Haji Umar and Ors. v. Union of India,6 A.I.R. 1983 S.C. 259 that where evacuee property vested in custodian of the State under any corresponding law prior to coming into force of. the Administration of Evacuee Property Ordinance 27 of 1949 or Evacuee Separation Act by reason to the deeming provisions in section 2 and 2A of section 8 there will be automatic vesting of property which cannot be reopened after coming into force of the Act. It was held to the following effect:
19. Following the above decision, this Court in Haji Esmall Noor Mohammad and Co. v. Competent Officer, Lucknow, (1967)3 S.C.R. 134; A.I.R. 1967 S.C. 1244, held that where vesting of evacuee properties had taken place under any corresponding law prior to the coming into force of the Central Ordinance and of the Act, no question of the Central Ordinance would arise. The Court further held that by reason of the deeming provisions in sub-sections (2) and (2-A) of Section 8 of the Act, there would be automatic vesting of such properties and such a vesting could not be reopened after the Act came into force. In view of the foregoing since it cannot be disputed, that the suit properties had been taken under the Junagadh Act as evacuee properties in Sept., 1948 and had continued to be in the possession of the custodian till the Act was passed, it is not possible to hold that they were not evacuee properties.
13. By virtue of the statutory provisions, right of mortgagor vested with the custodian. Thus, by fiction of law custodian is mortgagor. The question which now requires to be examined is whether the custodian as a mortgagor was bound in law to seek redemption of mortgage within 60 years as per law of limitation then applicable or by virtue of section 3 read with 9(2) of the Evacuee Interest (Separation) Act, the mortgage stood extinguished. There is no dispute with the proposition that if at the time of commencement of Evacuee Interest (Separation) Act, a period of 60 years has not expired, the mortgage stood extinguished and a custodian is full owner of the property without encumberance. However, whether the mortgage of which the custodian, is deemed to be mortgagor of the property, of an evacuee leaving India for Pakistan on 1.3.1947, would also stand extinguished or not is required to be examined herein.
14. In Dr. Rajinder Parkash Sharma's case (supra), the Hon'ble Supreme Court has held that in the absence of any inquiry under section 7 of the Act, the land does not vest in the custodian. The said judgment is clearly distinguishable. Under section 8(i) of the Act, the property vests in the custodian as a consequence of proceedings initiated under section 7 of the Act whereas sub section (2) of section 8 deals with the situation of the vesting of property with custodian by virtue of law repealed by the virtue of provisions of Evacuee Act such as Evacuee Local Act. In the present case, the property vested with custodian under the Evacuee Local Act which continued to vest with custodian in terms of Section 8(2) of the Evacuee Act and therefore, the argument that no proceeding under section 7 have been initiated is not applicable in the present case. Said case dealt proceedings in respect of provisions of section 8 (i) of the Evacuee Act.
15. In Ram Rakha's case (supra) Hon'ble Supreme Court found that suit for declaration was filed after the expiry of 60 years from the date of mortgage. The land was declared as the evacuee property under Evacuee Separation Act. In the said case mutation mortgage was referable in the year 1986-87. Thus, 60 years expired before the Evacuee Separation Act, 1951 came into force, in fact, even before Evacuee Land Act was promulgated.
16. In Union of India and Ors. v. Arshad's case (supra) it was again a case of declaration of evacuee property under section 7 of the Act. The said judgment is clearly distinguishable for the same reasons as the judgment of Hon'ble Supreme Court in Dr. Rajendra Parkash Sharma'a case (supra). In the judgment of this Court in Parma Nand's case (supra) a finding has been recorded that unless the share of evacuee is separated the same could not be allotted by the custodian. However, in the present case, the share of the custodian is not disputed by the plaintiff in the plaint itself. Such interests vests with the custodian under section 11 of the Evacuee Separation Act along with Section 4 of the Evacuee Local Act.
17. In Asa Ram v. Union of India8 A.I.R. 1981 S.C. 1634, the mortgagees rights stood extinguished by virtue of Section 9 (27) of the Evacuee Separation Act as the mortgage was created in 1892 and the period of 60 years expired some time in the year 1952 i.e. after the commencement of the Evacuee Separation Act.
18. In Nahinder Singh and Ors. v. Union of India and Ors., 9 A.I.R. 1961 Punjab 470, it was held by this Court that mortgage has not acquired the age of 60 years when the evacuee Separation Act came into force. The provisions of Evacuee Separation Act override those of Indian Limitation Act. It was held to the following effect by this Court:
The Evacuee Interest (Separation) Act came into force in the year 1951. Admittedly the mortgage had not acquired the age of 60 years when the Evacuee Interest (Separation) Act came into force. In this view of the matter, I do not think there is any force in the submission made by the learned counsel for the petitioners that the mortgage had ripened into ownership of the petitioners. The provisions of the Evacuee Interest (Separation) Act override those of the Indian Limitation Act.
19. A perusal of the various judgments referred to above, it is apparent that in none of the cases, question has been dealt with a situation where the mortgage was subsisting after 1.3.1947 but the period of 60 years expired before the Evacuee Separation Act came into force. In my opinion, the land which vested with custodian by virtue of the provisions of the Evacuee Local Act and by virtue of Evacuee Separation Act, the mortgage debt stood extinguished which Act was given overriding effect over all other statutes, the custodian will be deemed to be owner of the land free from all encumbrances from the date of vesting of the land itself. The only reasonable interpretation which can arise in view of the intents and purposes of the three statutes referred to above.
20. Section 9 of the Evacuee Separation Act has the effect of extinguishing the mortgages in respect of evacuees. An evacuee is one who has left India on or after 1.3.1947. Therefore, though the Evacuee Separation Act came into force on 31.10.1951 but it deals with the mortgage property of the evacuee w.e.f. 1.3.1947 and therefore, section 9 will take into its ambit the interest of an evacuee in mortgage property vesting with custodian in terms of section 9 of the Act w.e.f. 1.3.1947. Any other interpretation would result into an anomalous situation in respect of an evacuee property vesting in custodian w.e.f. 1.3.1947. As per the common law the custodian was bound to seek redemption of the land within the prescribed period of limitation but after the commencement of the Act w.e.f. 31.10.1951, the mortgage shall stands extinguished. Thus, if the interpretshi right to be raised by the appellant is accepted that custodian will be stepping in to the shoes of mortgagor for a period from 1.3.1947 till 31.10.195. Thereafter, the mortgage debt will stood extinguished. Such anomalous result is required to be avoid while interpreting the statutory provisions. Therefore, the provisions of Evacuee Interest (Separation) Act 1951 would be applicable in respect of an evacuee interest in a mortgage after 1.3.1947 as well.
21. Therefore, no fault can be found with the auction of the land by the defendants on the assumption that the said land vest with the custodian under the aforesaid statutes free from mortgage debt.
22. In view of above discussion, I do not find any merit in the present appeal, which is dismissed with no order as to costs.