NAHINDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) This judgment would dispose ot two writ petitions, Nos. 433-D of 1957 and 434-D of 1957, raising identical questions of law though the parties in each case are different.

(2.) For the sake of convenience, I will only narrate the facts in Civil Writ No. 433-D of 1957 Ram Singh, father of Kishan Singh petitioner No. 3, and grandfather of petitioners Nos. 1 and 2, obtained 113 Bighas and 18 biswas of agricultural land on mortgage from. Saida, father of Dulla respondent No. 4 in village Longwal of District Sangrur, for a sum of Rs. 1,200/-. The mortgagee was in possession of this land from 1893 and after the death of Ram Singh, his suc-cessors-in-interest have continued to remain in possession.

(3.) On 9th of June, 1947, 24 bighas out of this land was further mortgaged in favour of the petitioners by Dulla, respondent No. 4, by a registered deed. Although Saida had four sons, only one of those (Dulla) is surviving. The others died issueless. It is the case of the petitioners that Dulla continued to reside in India and never became evacuee. Still, the petitioners on receiving notices chose to submit their claims under Section (5 of the Evacuee Interest (Separation) Act, 1951, for separation of their interests in the agricultural land which had been mortgaged with their ancestors by Saida. Such a claim could have been only preferred in case of separation of interests in a composite property portion of which belonged to an evacuee. Before the Competent officer, it was contended on behalf of the petitioners that they had acquired proprietary rights in the land as they had been in possession of it for more than 60 years. It was further claimed that Dulla was not an evacuee as he continued to remain in India after the partition and therefore the land was not amenable to the jurisdiction of the Competent Officer-The claim was filed by petitioners in November, 1954 and the Competent officer by his order dated 27th of November 1956 held that because the mortgage had been subsisting for more than 60 years, it stood extinguished under Sub-section (2) of Section 9 of the Evacuee Interest (Separation) Act. As regards the latter mortgage executed by Dulla on 9th of June, 1947, the claim of the petitioners was assessed at RS. 788/-. Aggrieved from this order, the petitioners filed an appeal but the order of the Competent Officer was upheld by Mr. Ram Lal Aggarwal, Appellate officer, on 23rd of September, 1957.