ILLYAS Vs. TARLOK CHAND

JUDGEMENT

(1.) The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the first Appellate Court whereby suit for declaration and for permanent injunction was dismissed in appeal.

(2.) The plaintiffs have sought declaration inter-alia on the ground that they are entered as mortgagees. with possession with respect to the agricultural land measuring 28 Kanals 13 marlas as detailed in the plaint. An area measuring 14 Kanals 15 marlas, i.e. 2338/4516th share in the land measuring 27 kanals 13 marlas has been auctioned by defendants No. 1 to 4 in favour of the defendant No. 5 on 16-1-1991. The custodian has wrongly been entered as mortgagors of the said share in the suit land. The plaintiffs are also having some share in the suit land but are recorded as mortgagees of the entire land for times immemorial for the last more than 100 years. Some of the Muslims became evacuees and the share of the said co-sharers came to vest in the custodian and the said share is 2338/4516.

(3.) In the written statement filed on behalf of defendants No. 1 to 4 it was the stand of the defendants that the suit was mortgaged by the predecessor-in-interest of muslim evacuees vide mutation No. 54 dated 1-8-1908 and decided on 15-8-1908 In favour of the predecessors-in-interest of the plaintiffs for Rs. 10/-. On migration of the Muslims to Pakistan in the year 1947 their share automatically vested in the custodian under Section 4 of the East Punjab Administration Evacuee Property Act, 1947 (hereinafter referred to Evacuee Local Act). The said land automatically vested in custodian free from all encumbrances under Section 9(2) of Evacuee Interest (Separation) Act, 1951 (hereinafter referred as Evacuee Separation Act) as the period of 20 years from the date of mortgage has already expired on the enforcement of the said Act.