HARJIT KAUR Vs. ASSISTANT CUSTODIAN

JUDGEMENT

(1.) THE facts which need to be noticed are that the plaintiff- appellant i.e. Smt. Harjit Kaur wife of Joginder Singh had filed a suit for possession of land measuring 28 kanals comprised in Killa No. 39/19.29.21.44/1/2 as per the description given in the jamabandi for the year 1975-76 situated at village Johal Dhaiwala, District Amritsar and also a suit for injunction restraining the defendant-respondents from auctioning the land described in the suit.

(2.) THE history relating to the land also needs to be noticed, i.e., one Harcharan Singh son of Roor Singh of village Johal Dhaiwala was the owner of the land measuring 24 kanals comprised in Khasra Nos. 2516 and 2518 as described in the jamabandi for the year 1944-45 situated in the aforestated village. He mortgaged with possession the said land to one Ali Baksh son of Wali resident of village Jama-rai and that mortgage deed dated 25.5.1946 had been executed reflecting the mortgage money as Rs. 1200/-, the redeemable period had been described as six years. In the year 1947, upon partition of the country, the mortgagee, i.e. Ali Baksh migrated to Pakistan and that his mortgagee right came to vest in the Custodian Evacuee Properties, Punjab. Upon consolidation, in lieu of the land mortgaged, the land measuring 28 kanals, comprised in rectangle No. 39 Killa No. 9.20 and 21 and rectangle No. 44 Killa No. 1/2 was allocated accordingly. The said land was sold by the owner to the plaintiff vide sale deed dated 23.5.1958 and that an amount of Rs. 1200/- was kept with the plaintiff as a trust money for discharge of the mortgage debt by way of payment to the mortgagee.

(3.) THE suit had been contested by the official defendant and the private defendants by way of separate written statement filed by them respectively. In the first instance, an objection has been taken that the suit property being evacuee property, the Civil court has no jurisdiction in view of the provisions contained under Sections 27 and 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 read with Section 46 of the Administration of Evacuee Properties Act, 1950; the suit is bad on account of non-joinder of the necessary and property parties, i.e., Union of India and State of Punjab; the plea of res judicata has been set up on the premises that the remedy for claiming redemption of the land has already been exhausted by way of filing of an application before the Custodian, Punjab, Jalandhar and that the said application has been dismissed and yet the subsequent order obtained favourably by the plaintiff having been set aside by the revisional authority, which order has become final between the parties. Apart from the above, there are various other objections which have been taken and that the suit has been contested on merits as well. Upon the pleadings of the parties, the issues had been framed and the parties have led oral as well as documentary evidence. Reference may be made pointedly to issue No. 4 which reads as under :