LPA No.840 of 1996 1 In the High Court of Punjab and Haryana, Chandigarh. LPA No.840 of 1996 (O&M) Date of Decision:23.02.2010 Gulzar Singh ....Appellant. Versus Financial Commissioner & Secretary to Govt. Punjab and others ....Respondents. Coram:- Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. Amit Jain, Advocate for the appellant. Mr. Amar Vivek, Advocate and Ms. Richa Arora and Ms. Manisha Garg, Advocate for the respondents. ... Alok Singh, J. 1. Present appeal has been filed assailing the order dated 5.12.1995 passed by learned Single Judge thereby allowing CWP No.835 of 1981, quashing order dated 3.10.1979 passed by the Assistant Custodian General, Punjab and dated 22.8.1980 passed by the Financial Commissioner Revenue, Punjab. 2. Undisputed facts of the present case are that the writ petitioners LPA No.840 of 1996 2 mortgaged their property i.e. 25 kanals 3 marlas vide registered mortgage deed in favour of Nur Mohammad son of Hasan for a sum of Rs.2600/-. 3. Undisputedly, Nur Mohammad migrated to Pakistan at the time of partition of the country. On 20.10.1976, one of the mortgager, namely, Ujjagar Singh, moved an application before the Assistant Custodian for redemption of the mortgage by paying an amount of Rs.2600/- as mortgage money. As per the direction issued by the Assistant Custodian, the petitioners were required to deposit mortgage money in government treasury on 26.2.1978 to redeem the mortgage. Order passed by the Assistant Custodian was challenged before the Assistant Custodian General, Jalandhar by the appellant and one Gurjant Ram on the ground that they have been cultivating the land and they belong to Scheduled Castes and the application for redemption is time-barred. Revision was allowed vide impugned order dated 3.10.1979 (Annexure P-3). The Financial Commissioner, Revenue, Punjab, vide order dated 22.8.1980 confirmed the order of the Assistant Custodian General. Feeling aggrieved by the impugned orders dated 3.10.1979 and 22.8.1980 (Annexures P-3 and P-4), the petitioners filed the writ petition, which was allowed by learned Single Judge holding that application for redemption is not time-barred. Hence present intra-Court appeal. 4. We have heard learned counsel for the parties and perused the record. 5. The main question before us is as to whether application for redemption of mortgage is time-barred or in other words, what is the limitation prescribed to redeem the usufructuary mortgage. 6. Undisputedly, property was mortgaged vide registered LPA No.840 of 1996 3 mortgage deed dated 23.5.1946 and possession of the property was transferred by the mortgager in favour of mortgagee. Undisputedly, no interest was agreed to be paid on the mortgage amount and it was stipulated that on payment of the amount of Rs.2600/-, mortgaged land could be got redeemed by the mortgager. Undisputedly, application to get mortgage redeemed was moved on 20.10.1976. Undisputedly, on the direction of the Assistant Custodian, the petitioners (mortgagers) deposited the money in Government Treasury on 26.2.1978. 7. It is well settled principle of law that in case of usufructuary mortgage, mortgagee enjoys fruits of the property. He can enjoy the property till the amount is repaid to him. The moment mortgager pays amount to the mortgagee, mortgage stands redeemed. The question as to whether any limitation is prescribed to get the usufructuary mortgage redeemed, was answered by the Full Bench of this Court in Ram Kishan and others Vs. Sheo Ram and others, 2008(1) RCR (Civil) 334. The Full Bench of this Court in Ram Kishan's case (supra) was of the view that there is no time limit prescribed to get the usufructuary mortgage redeemed. Learned counsel for the appellant vehemently argued that the decision of the Full Bench in Ram Kishan's case (supra) is under challenge before the Apex Court and the question has not been finally decided by the Apex Court. Undisputedly, judgement of the Full Bench has not been set aside or overruled as yet. Judicial discipline requires that the Division Bench of this Court should follow the view taken by the Full Bench. 8. Learned counsel for the respondents has placed reliance on the judgement of this Court in Devinder Singh Vs. Kishori Lal, 1993 AIR (Pb.) 169. Learned Single Judge of this Court in Devinder Singh’s case LPA No.840 of 1996 4 (supra) has observed in paragraph 12 as under: - “In view of the above, it is clear that the evacuee's interest was limited to the mortgagee rights. These rights had come to vest in the Custodian. On an application having been made, the defendant – appellants were permitted to redeem the property. In view of the clear and categoric observations in his order, the plea raised on behalf of the defendant – appellants that the Central Government had become the absolute owner and that they had purchased the land, cannot be sustained. The land having not been purchased and the defendant – appellants having only redeemed it, the property retained its original character and the claim made by the plaintiff – respondent was rightly decreed by the lower appellate Court.” 9. We are in respectful agreement with the view taken by learned Single Judge and we hold that mortgagee evacuee's interest was limited to the mortgagee rights and on his migration to Pakistan, only those rights vested in the Custodian. Title of the property could never vest in the Custodian and the Custodian had every jurisdiction to accept the redemption. 10. In view of the above, we find that learned Assistant Custodian was right in permitting the redemption of the mortgage. 11. In the matter of Raghu Nath Vs. Competent Officer, Delhi (SC), 1971 AIR (SC) 131, the Apex Court in paragraph 6 of the judgement has observed as under: - “6. Upon the mortgagee being declared an evacuee and his interest as such mortgagee in the premises in question an LPA No.840 of 1996 5 evacuee property, his interest in the mortgaged property vested under Sec. 8 of the Administration Act in the Custodian from the date of the notice issued under Sec. 7 of the Act. Under Sec. 8 (4) any person in possession of the mortgaged property would be deemed thenceforth to be holding the property on behalf of the Custodian and would be bound on demand by him to surrender possession to him. The Act having under Sec. 4 an overriding effect on any other law for the time being in force or any instrument having effect by virtue of any such Act, the Custodian, under the powers conferred on him by Section 10, could take all such measures he might consider necessary for securing, administering, preserving and managing any evacuee property including transferring "in any manner whatsoever" the evacuee property "notwithstanding to the contrary contained in any law or agreement relating thereto." Under Section 12, the Custodian is empowered, notwithstanding anything contained in any other law for the time being in force to cancel any allotment, terminate any lease or amend the terms of such lease or agreement under which any evacuee property is held or occupied by a Person whether such allotment, lease or agreement was granted or entered into before or after the commencement of the Act under sub-sec. (3), he is authorised to eject such person and take possession, if such person fails to surrender possession on demand made by him in the manner provided by Sec. 9, i. e. by even using such force as would be necessary for taking possession. It is conceded by the LPA No.840 of 1996 6 respondents that under these powers the Custodian had taken over possession of the mortgaged property and the property has since 135 then been in possession of persons who were either allotted portions of it or who were inducted therein as tenants by the Custodian. It is also conceded that the Custodian has refused, notwithstanding demands made by the appellant, to evict these persons from the property and hand over vacant possession to the appellant even on the appellant tendering the mortgage amount. This was presumably done by reason of the fact that though Section 12 empowers him to cancel an allotment or a tenancy made or created by him, Rule 14 (2) of the Administration of Evacuee Property (Central} Rules, 1950 lays down that in the case of a lease or an allotment granted by the Custodian he may evict a person on a ground justifying eviction of a tenant under a law relating to the Rent Control or for any violation of the conditions of the lease or allotment From the provisions dealing with the vesting of the evacuee property, the powers of the Custodian, appeals and revisions from his order and the overriding nature of the provisions of the Act it is clear that the Administration Act is a self-contained code.” 12. In view of the above dictum of the Apex Court, we are of the view that the appellant who claims to be in possession of the property being member of the Scheduled Castes, has no locus or right to challenge the redemption of the mortgage. It is well within the jurisdiction of the Custodian/competent authority to redeem the mortgage. Learned Assistant LPA No.840 of 1996 7 Custodian acted within its jurisdiction. Hence, the impugned orders in the writ petition passed by the Assistant Custodian General and the Financial Commissioner, Revenue, Punjab, were rightly set aside by learned Single Judge. 13. For the reasons recorded hereinabove, we find no ground to interfere with the view taken by learned Single Judge. The appeal is devoid of merit and is dismissed. ( Alok Singh ) Judge ( Adarsh Kumar Goel ) Judge 23.02.2010 sk.