SHAMSHUDDIN Vs. MANSHA SINGH GANGA SINGH

JUDGEMENT

(1.) THIS is a defendant's appeal from the judgment and decree of the Additional district Judge, Patiala, who granted decree in favour of the plaintiff-respondents for a sum of Rs. 1500 and reversed the decree of the Subordinate Judge who had dismissed their suit in its entirety.

(2.) THE defendant-appellant Shamsuddin had mortgaged with possession land measuring 25 Bighas and 2 Biswas in village Karali of Rajpura tehsil for a sum of rs. 1500 by a registered mortgage-deed of 16-2-2001 Bk. As a result of consolidation proceedings land measuring 26 Bighas and 1 Biswa bearing Khasra nos. 172 to 170 was allotted in lieu of the mortgaged land in possession of the mortgagees Munsha Singh and Kishan Singh. Though Shamsuddin claimed to have remained in India after the partition, proceedings under the Evacuee Interest (Separation) Act were taken by the Competent Officer who issued the notice Exhibit D. 4 to the mortgagees on 30th April, 1953. By an order passed on 29th july 1953 (Exhibit D. 3) the Competent Officer admitted the claim of the mortgagees for a sum of Rs. 1500. In the order itself it was said that "this mortgage has not been disputed on behalf of the respondent. Custodian, representing the mortgagor who is since an evacuee. " Under section 7 of the evacuee Interest (Separation) Act 1951, the interest of the mortgagees was assessed at Rs. 825 and it was directed that the amount shall be paid to them by the Custodian out of the sale-proceeds. The property was actually sold on 4th june, 1959, for a sum of Rs. 825. A sale certificate was granted in favour of the auction-purchasers on 20th August. 1959. The sale certificate Exhibit D. W. 1/2 is in favour of Ram Singh son of Amir Chand and Ram Singh son of Sohan Singh also residents of Karali.

(3.) POSSESSION of the land was actually given to the auction-purchasers on 3rd september, 1959. Thereafter a sum of Rs. 375 was offered to the mortgagees which they declined to accept. The Competent Officer in his order of 5th december, 1960 (Exhibit D. 5) mentioned that the mortgagees had represented to him that the land had actually been restored to its original Muslim owner shamsuddin and the original certificate of restoration was put on record. It seems that the order of restoration in favour of Shamsuddin mortgagor had been made presumably on the ground that he was not an evacuee and the property could not, therefore be disposed of as composite property.