MST. GOMI AND OTHERS Vs. UNION OF INDIA

JUDGEMENT

(1.) THE facts which have led to the filing of the present appeal are that the land in dispute is alleged to have been mortgaged with possession on or about the 28th of July, 1899, with the predecessor -in -interest of the Plaintiff -Appellants for Rs. 100/ -and a mutation of the mortgage was sanctioned on 10th of October, 1900. The mortgagors, who are admittedly Mohammedans, at the time of the partition of the country, migrated to Pakistan and became evacuees. On 26th of September, 1962. the Plaintiffs -Appellants instituted the present suit seeking a declaration to the effect that they have become owners of the land in dispute, the said mortgage having become more than sixty years old. They also sought a permanent injunction restraining the Respondent Union of India from disturbing their possession. The Plaintiff -Appellants also alleged that they had sptnt Rs. 1,200/ -on the reclamation of the said land. The Defendant Union of India challenged the jurisdiction of the civil Court to entertain the suit as well as the validity of the notice under Section 80, Code of Civil Procedure Code. It was also pleaded by the Defendant that the rights of the Plaintiff -Appellants in the land in dispute stood extinguished by operation of law. The Defendant did not admit the expenditure of Rs. 1,200/ - by the Plaintiff -Appellants on the reclamation of the said land. On the pleadings of the parties, the trial Court framed the following issues -

(2.) MR . J. V. Gupta, learned Counsel for the Appellants, has urged that the evacuee property in question does not vest in the Custodian of Evacuee Property as well as in the Union of India, the Respondent in this case, unless the evacuee interest is got separated by the Custodian from the competent officer, as a envisaged by the relevant provisions of the Evacuee Interest (Separation) Act, 1951, hereinafter called the Act. He has further urged that the right of a mortgagee in the land is not extinguished automatically by operation of the provisions of Section 9, Sub -section (2) of the Act, unless the competent officer makes an order to that effect. Mr. Gupta, in this connection, has made a reference to the provisions of Sections 6, 7, 8 and 9(2) of the Act, which read as follows -

(3.) BEFORE dealing with his other contention relating to the appellants having perfected their title, his first contention that the Custodian cannot take possession, without having recourse to the procedure prescribed in the Act, of the property in suit, may be disposed of first. Che facts of the present case are entirely different from the facts involved in the abovementioned Supreme Court case. In that case, before the twenty years possession on the land of the mortgagee expired the Act came into force, with the result that at the time of the enforcement of the Act the mortgagee was still left with some right in the land which required to be separated by the competent officer under the provisions of the Act, while in the case in hand admittedly the mortgage had become more than twenty years old on the commencement of the Act. Here, by virtue of the operation of the statutory provisions, his mortgagee rights got extinguished and so there remained nothing for the competent officer to separate. In the circumstances of the present case, therefore, the observations of their Lordships of the Supreme Court have no application and cannot help to resolve the present dispute.