DES RAJ Vs. RAM SINGH

JUDGEMENT

(1.) This is a defendant's appeal against an appellate decree of Mr. Sehe Parshad, Senior Subordinate Judge, dated 4-3-1949, decreeing the plaintiffs' suit for declaration and injunction.

(2.) Somewhere before 1882, but the Courts have taken it to be 1882, one Basti mortgaged the land in dispute to the predecessors-in-interest of Dalel Singh and others. On the death of Basti without any issue or a widow his estate was mutated in favour of the shamilat patti' which includes Des Raj and others or their predecessors-in-interest. Des Raj and others applied for restitution of the mortgage under the Restitution of Mortgaged Lands Act which was granted by the Collector on payment of some compensation. The successors of the mortgagees, Dalel Singh and others, brought a suit for declaration and for injunction. The trial Court held that the mortgage was more than sixty years old when the suits was brought and therefore the Collector could not make an order for restitution, and this on appeal was confirmed by the Senior Subordinate Judge.

(3.) In this second appeal the defendant has raised two points. Firstly, he submits that if the mortgage was subsisting when the Act came into force, i.e., in 1938, then the Collector had jurisdiction, and secondly, that no civil suit can be brought because the Restitution of Mortgaged Lands Act is a complete Code by itself and it confers exclusive jurisdiction on the Collector to deride the question whether the mortgage still subsists or not.