IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.6101 of 1986 (O&M) Date of decision: 01.11.2011 Gurbux Singh and others ....Petitioners versus The Assistant Custodian General with powers of Custodian General, Punjab, SCO No.1064-65, Sector 22-B, Chandigarh, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Shailendra Sharma, Advocate, for Mr. Sanjay Majithia, Senior Advocate, for the petitioners. Mr. Navdeep Sukhna, DAG, Punjab, for respondents 1 and 2. Mr. R.S. Sihota, Senior Advocate, with Mr. B.R. Rana, Advocate, for respondent No.3. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. The writ petition contains a challenge to an order passed by the Assistant Custodian General (Annexure P-9) rejecting a revision petition filed by the petitioners under Section 27 of the Administration of Evacuee Property Act of 1950 (for short, '1950 Act'). The petitioners were actually challenging an order passed sanctioning the preparation of roznamcha on the application of one Civil Writ Petition No.6101 of 1986 (O&M) - 2 - Sohan Singh son of Bhagwan Singh. The order had been passed on 15.03.1982 in relation to the property in khasra Nos.421(7-7), 422 (7-7) and 424(2-10) min in an area of 17 kanals 4 marlas situate in the village of Parwah. The petitioners claimed that they had ownership of the property through an exchange with one Thakar Singh, who was a successor-in-interest to one Harnam Singh. The latter had executed a mortgage in relation to the properties which he had obtained in exchange of the properties given by him, namely, in khasra Nos.251, 252 and 246 and the exchanged properties were purported to have been substituted as the mortgage security for the loan obtained by Harnam Singh. 2. The mortgagee was one Roray Shah and after his death, the mortgagee's interest was said to have been inherited by Barkat and Ali Atta Mohammad. They had left for Pakistan at the time of partition and the evacuee interest vested with the Custodian could not have had any right over the property exchanged in his favour but the right could have been enforced only against the property in khasra Nos.251, 252 and 246. It was further contended that the mortgage itself fully redeemed and there existed no interest of the mortgagee to create a vesting in relation to the property owned by the petitioners. This contention raised under Section 27 was rejected by the Assistant Custodian General essentially on three grounds: (i) that there was nothing to show that the mortgage had been redeemed and there was no receipt or endorsement on the mortgage to that Civil Writ Petition No.6101 of 1986 (O&M) - 3 - effect; (ii) mutation in respect of the properties had never been sanctioned in favour of the petitioners and the plea of exchange and his entitlement to the property cannot, therefore, be held to have been established; and (iii) the allotment made under the Act could not have been challenged before the Assistant Custodian General as belatedly as when the petitioner challenged the same in the year 1986. 3. It is not clear from the records as to when the property had been allotted in favour of Bhagwan Singh under the 1950 Act. The claim by the petitioners would have been possible only if they could show that the property claimed by them actually was their own property and that they could not have been made a subject of allotment under the 1950 Act. With no proof of redemption of mortgage nor even clear proof of the date when the allotment was made in favour of Bhagwan Singh, the revision petition itself could not have been maintained merely on the order passed directing a copy of the roznamcha to be prepared, on the application filed by a legal representative of Bhagwan Singh for settlement in relation to the properties. It is difficult again to reconcile the claim made by the petitioner with reference to the property which was the subject of the impugned order dated 08.08.1986 since the property that was originally the subject of mortgage appears to be in an extent of 42 kanals 3 marlas whereas the property covered under these proceedings was in relation to 17 kanals 4 marlas situate in the Civil Writ Petition No.6101 of 1986 (O&M) - 4 - village of Parwah. The claim of the petitioners over the property is, therefore, not established and the impugned order cannot be assailed. 4. Even while rejecting the petitioners' claim brought through revision, since it is claimed that the evacuee's interest only as that of mortgagee's interest, the vesting with Custodian could have been also only with reference to mortgagee's interest. It is not known how the property moved to the hands of the Custodian from the petitioners, if the property had fallen to them in exchange. Without a challenge to the order of original allotment by the Custodian or the notification of vesting, the petitioners could not succeed. If the petitioners adduce appropriate proof of their possession under exchange and details are given regarding the allotment to the private respondent, the petitioners shall be at liberty to approach the competent authority under the 1950 Act but no action will be taken without notice to the allottee or the successor- in-interest, who will have all rights in defence, including any plea of limitation. 5. The writ petition is dismissed but with the observations made above. (K.KANNAN) JUDGE 01.11.2011 sanjeev