DEVINDER NATH ALIAS DEVINDER SINGH Vs. KISHORI LAL

JUDGEMENT

(1.) Shiboo Ram had five sons viz. Kishori Lal, Gurdial Chand, Jaswant Rai, Dharam Chand and Ram Lal. Kishori Lal, Gurdial Chand and Ram Lal mortgaged their 3/5th share of land measuring 13 kanals 17 marlas with one Fattu. On the partition of the country, the custodian passed an order on Sept. 8, 1958 under S. 11 of the Act to the effect that the "land is vested in the custodian under Section 11 of the Act free from all encumbrances and liabilities." It appears that Ram Lal died. On his death, his heirs viz. Devinder Nath alias Divender Singh, Kewal Krishna, Dev Raj, Hukam Chand, Surinder Pal and his widow Lachmi Devi filed and application for redemption. This application was considered by the competent authority. An order was passed on 26/07/1968. It was inter alia observed that

(2.) The heris of Ram Lal having got possession of the land, Kishori Lal and Gurdial Chand filed a suit for possession. It was averred that the property was joint and that the heirs of Ram Lal, the defendants hold the property on behalf of the plaintiffs and that they were entitled to get 2/5th share on payment of Rs. 670.00, the proportionate redemption money. The defendants contested this suit on the plea that the shareholders of the land had been cultivating it individually and that the land having vested in the Central Government, they had got its possession by way of transfer on appeal after payment of the assessed amount of Rs. 1010.00. The trial Court framed the following issues:-

(3.) Mr. M. S. Rakkar, learned counsel for the appellants has made a two-fold submission. By referring to the provisions of the Evacuee Interest (Separation) Act, 1951 (hereinafter referred to as 'the Act'), the learned counsel contends that the land in dispute had become a composite property. Notice as contemplated under Section 6 of the Act for the purpose of separating the evacuee interest in the composite property was given to all concerned including the plaintiff-respondents and on their failure to submit any claim in accordance with the provisions of Section 7 of the Act, the competent authority had proceeded to decide the matter under Section 8 which order had the consequence of vesting the evacuee interest in the Custodian free from all encumbrances under Section 11. He further points out that the competent authority, had actually passed the order dated Sept. 8, 1958 Ex. D6 by which the land had come to vest in the Custodian free from ah encumbrances. He submits that once the land had come to vest in the Custodian, there was no occasion for its redemption by the plaintiff-respondents and that the defendant-appellants had become owners by purchase of the land. On these premises, learned counsel contends that the plaintiff-respondents have no right or title in the property and that the judgement of the learned lower appellate Court is based on misconstruction of the factual and legal position. He further contends that in view of the provisions of Sec. 9(2) of the Act, the mortgage shall be deemed to have been extinguished on the expiry of a period of 20 years and as such, there was no question of any redemption of the mortgage. On this basis, the learned counsel contends that the judgement and decree passed by the learned lower appellate Court deserve to be reversed.