KUNDAN SHADI RAM Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS Regular second Appeal came up for hearing before D. K. Mahajan, J. on december 21, 1967, when the learned Judge considered that the points involve in the case were of considerable importance and the entire case should, therefore, be decided by a division Bench. It is in these circumstances that the appeal is before us.

(2.) THE facts are not in dispute. One Mata bakhsh, who was a Hindu, originally owned the suit land measuring 131 Kanals 13 Marias situate in village Saraula, tehsil Kaithal, District Karnal. He mortgaged this land by two mortgage-deeds in the years 1897 and 1898 for a sum of Rs. 290/- in favour of Shadi and Jati ram, predecessors-in-interest of the plaintiffs-appellants. The possession of land in pursuance of the terms of the mortgage was delivered to the mortgagees who are in possession of the same since then. Mutations of the mortgages were sanctioned and Mata Bakash later gifted the equity of redemption of the aid land in favour of parsa son of Satha Jat in the year 1914 the mutation in respect of which was sanctioned on June 4, 1915. On February 10, 1928, Parsa sold his equity of redemption to one Khawaja, a mohammedan, for Rs. 1,300/- per registered deed and a mutation of sale was also sanctioned on May 28, 1928. Khawaja as vendee was then entered in the revenue records as a mortgagor and the plaintiffs as mortagagees with possession. There then came the partition of the country in the year 1947 when Khawaja migrated to pakistan. The plaintiffs continued in possession f the land as mortgagees and the entries in the revenue records also continued to the same effect showing the plaintiffs as mortgagees and Khawaja as mortgagor. In the year 1965, the Punjab government through the Tashildar (Sales) started auction proceedings in respect of the suit land treating it as an evacuee property free from any encumbrances. The plaintiffs were probably feeling that they had become owners of the land, since it was not redeemed by the mortgagor within the period of sixty years. They filed the present suit on November 19, 1965, after serving notice under section 80 of the Code of Civil Procedure, for a declaration that they had become absolute owners of the land in dispute by lapse of the period of sixty years and the property could not, therefore, be sold by the Custodian as an evacuee property. The Union of India an the Custodian of Evacuee Property, Jullundur, were impleaded as defendants, who contested the suit on the ground that the property was an evacuee property and the mortgage stood extinguished under section 9 (2)of the Evacuee interest (separation) Act, 1951, hereinafter called the Act, and that it vested in the Union of India free from all encumbrances. On the pleadings of the parties, the following issues were framed-1. Whether the plaintiff has become the owner of the property in dispute due to lapse of time? 2. Whether the civil Court has got jurisdiction to try this suit? 3. Whether the defendant is entitled to special costs? 4. Relief. The trial Court held under issue No. 1 that the mortgage in favour of the plaintiffs had been extinguished on the coming into force of the Act in the year 1951 in view of the provisions of S. 9 (2) contained therein, and that the plaintiffs had no title in the land. Issue No. 2, which related to the jurisdiction of the civil Court, was not pressed by the defendants. Issue No. 3 was decided against the defendants. As a result of the finding on issue No. 1, the suit was dismissed.

(3.) THE plaintiffs preferred an appeal. The District Judge, Karnal, affirmed the findings of the trial Court though with a more elaborate discussion of the relevant law and dismissed the appeal. Hence the present appeal by the plaintiffs.