UNION OF INDIA Vs. KHARATI LAL

JUDGEMENT

(1.) NINETY Kanals and one Marla of land situated in village Bhustala, Tehsil Tanesar, district Karnal was mortgaged by its Muslim owners with the predecessors-in interest of Kaharaiti Lal and others, who are the plaintiff-respondents in this appeal, in the year 1922-23 vide mutation Nos. 229, 278, 279, 281 and 282. At the time of the partition of the country the equity of redemption thus belonged to the Muslims who migrated to Pakistan and the mortgagee rights were with the plaintiff-non-evacuees. In view of the East Punjab Evacuee Property (Administration) Act passed from time to time by the East Punjab State, all rights and interests of the Muslim evacuees vested in the custodian. Thus the equity of redemption vested in the Custodian and the mortgagee rights vested in the plaintiffs.

(2.) THE Evacuee interest (Separation) Act, 1951, hereinafter referred to as the Separation Act, came into force on 31st October, 1951. This applied to a 'composite property' which was defined by Clause (d) of Section 2 to mean-". . . . . . . . . . . any property which, or any property in which an interest has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950. (XXXI of 1950) and- (i ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii) in which the interest of the evacuee is subject to mortgage in any form in favour of a person, not being an evacuee or (iii ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iv ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " Chapter II of the Separation Act provides for the separation of the evacuee interest in composite property. Section 6 provides that the Competent Officer having jurisdiction over the property concerned may give a notice to any person who claimed any interest in such property to submit his claim. Section 7 deals with submission of claims and Section 8 with the decision of the Competent Officer, According to Section 8 the Competent Officer is to finally decide the amount due to the evacuee. S. 10 then lays down the various modes in which the interest of the evacuee is to be separated from that of the non-evacuee claimants and clause (b) provides as follows:-

(3.) IN the present case, it is the case of the plaintiffs themselves that they have been in possession of the land since the mortgages were created. This is what they stated in paragraph 1 of the plaint:-