(1.) THIS is a plaintiffs' appeal arising out of a suit for declaration in which they claim that the order dated 6th May, 1958, passed by the Competent Officer is wrong, illegal and void inasmuch as he had no jurisdiction to adjudicate when before the coming into force of the Evacuee Interest (Separation) Act, 1951, described hereinafter as the Act, they had become owners by lapse of time.
(2.) FACTS which led to the controversy may be stated in a narrow compass.
(3.) THE suit land measuring 2 Bighas, b Biswas was mortgaged by Hasana and others in favour of Chet Ram son of Mohan. There is no written deed but the revenue records show that the land was mortgaged on 3rd July, 1890. The except, exhibit P. W. 1/1, indicates that Budhan, Sardara Chat and Chhotu were the successors-in-interest of the original mortgagors. They were shown as mortgagors in the Jamabandi for the year 1940-41. Two mutations Nos. 102 and 103 are said to have been sanctioned on 30th July, 1941, whereby Budhan, one of the mortgagors, got his 5/8th share in the mortgaged land redeemed from Khazru mortgagee on payment of Rs. 41/4/- and purchased mortgagee rights in respect of the remaining 3/8th share. Budhan then mortgaged the redeemed share with bhag Mal for Rs. 51/4/- and also sold the mortgagee rights for Rs. 24/4/ -. Again on 5th December, 1942, there were two transactions between Budhan and Bhag Mal as a result whereof the former got redeemed the land mortgaged with the latter and also purchased back the mortgagee rights in regard to the 3/8th share. The result is that the position on 5th December, 1942, was the same as on 30th July, 1941, when Budhan had redeemed his 5/8th share from Khazru and purchased mortgagee rights to the extent of the remaining 3/8th share. Budhan, Sardara chat and Chhotu mortgagors later migrated to Pakistan on partition of the country in the year 1947. Since the plaintiffs who are successors-in-interest of the original mortgagees continued in India, the Competent Officer, Gurgaon, treated the property to be a composite one as defined in the Act. In the claim made before him by the mortgagees (now plaintiffs), it was stated that the mortgage was not redeemed for sixty years and, they had, therefore, become owners of the property by prescription. It appears that when the case was heard by the competent officer, none appeared on their behalf, nor was the Custodian represented. The competent Officer in a very brief order and relying on some decisions of the appellate Officer, the references to which are not stated in his order, declared the mortgage to have extinguished on the ground that the same was over twenty years old. The property was consequently directed to vest in the Custodian free from all encumbrances and liabilities. It is this order which led to the present suit.