KARNAIL SINGH (DECEASED) THROUGH HIS LRS. Vs. FINANCIAL COMMISSIONER, REVENUE AND REHABILITATION, PUNJAB CHANDIGARH

JUDGEMENT

(1.) THE writ petition challenges the order passed by the Financial Commissioner rejecting the application filed under Section 54 of the Administration of Evacuee Property Act of 1950 (hereinafter called, 'the 1950 Act'). The petitioner claimed to be a purchaser of equity of redemption of the properties which had been originally mortgaged by the vendor to one Ali Mohd. on three documents, namely, on 26.05.1944, yet another document on the same date on 26.05.1944 and 20.06.1944 in respect of 46 kanals 41 marlas of land to secure a debt contracted to the extent of Rs. 3,745/ -. The mortgagee Ali Mohd. had left India and the property came to be in the hands of the Custodian as evacuee property. The petition had been filed under Section 54 on 25.03.1975 and it was rejected on the ground of limitation. An application for review was also filed which was also dismissed. The writ petition challenges the orders passed by the authorities. The counsel for the petitioner contends that the property was a "composite property" as defined under the Evacuee Interest Separation Act of 1951 (hereinafter called, 'the 1951 Act'). The "composite property" is defined under Section 2(d) of the 1951 Act includes the property in which the interest of a person, not being an evacuee is subject to mortgage in any form in favour of an evacuee. Admittedly, Ali Mohd. was an evacuee and since he held a mortgagee's interest, it was a composite property as defined under the 1951 Act. The Displaced Persons (Compensation and Rehabilitation) Rules of 1955 empowers the Central Government to acquire the property declared or deemed to have been declared as evacuee property under the 1950 Act. "It contains 8 categories of properties which were excepted. Clause (v) is one of the exceptions that reads as follows:

(2.) THE petitioner claims that after the mortgagee Ali Mohd. left, the mortgagors themselves were able to take back possession and deliver the possession to the petitioner. The petitioner would not require therefore any relief of recovery of possession from the State. Any transfer made by the State in favour of any person cannot operate to take away the petitioner's interest in the property and the petitioner will be at liberty to be protected in such possession. The impugned orders are set aside and the writ petition is allowed. I am making no direction for payment of the mortgage money of Rs. 3,745/ -, since this writ petition cannot be treated as a suit for redemption. On the other hand, it examines only the relative claims of the petitioner and the State and I have found that the State has neither ownership nor could it defeat a right of the mortgagor to assert ownership by pleading an issue of limitation. It is left to the State to recover the amount with such interest as it is permissible in accordance with law.