RSA No. 547 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 547 of 1986 Date of decision : 1.11.2011 State of Punjab Appellant versus Balbir Singh etc. Respondents CORAM : HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Amit Chaudhary, Deputy Advocate General, Punjab for the appellant Mr.Mohinder Singh Bedi, Advocate for the respondents ......... JITENDRA CHAUHAN.J This appeal has been filed by the appellant-State against the judgment and decree dated 23.8.1985, passed by the Additional District Judge, Gurdaspur. Brief facts of the case are that Balbir Singh and others, filed a suit for declaration against the Punjab State through Collector, Gurdaspur and Tehsildar, Gurdaspur seeking declaration to the effect that they are owners in possession of 10 kanals 6 marlas of land situated in village Lakhowal and the entries in the revenue record showing the Central Government as mortgagee and the plaintiffs as mortgagors are wrong and the defendant (State of Punjab) has no right, title or interest in the said land. They further sought injunction restraining the defendant-State from putting RSA No. 547 of 1986 2 up the said land for auction. It is further the case of the plaintiffs that the said land was mortgaged by Chuhar Singh and Bahadur Singh sons of Bishan Singh, resident of Village Lakhowal in favour of Karim Bakhsh Muslim of village Daboori and Mehar Din son of Jamo of Village Lakhowal in the year 1943. The said land was redeemed by Chuhar Singh and Bahadur Singh in July, 1947 and they obtained receipt from the mortgagees. The mortgagees migrated to Pakistan and the receipts were lost by Chuhar Singh and Bahadur Singh during partition of the country. Chuhar Singh and Bahadur Singh became owners of the sit land and the defendant has no right, title or interest in the said land. After sometime, Chuhar Singh and Bahadur Singh died. Balbir Singh etc. are their legal heirs. As per the plaint, plaintiff Nos. 1 to 4 are owners of 1/16 share, plaintiff Nos. 5 to 11 are owners of 7/16 and plaintiff Nos. 12 to 16 are owners of ½ share. Plaintiffs are owner in possession; however, in the revenue record, they are wrongly shown as mortgagors and the Central Government as mortgagees. State of Punjab contested the suit of the plaintiffs. It was pleaded that the civil court has no jurisdiction to try this suit as its jurisdiction stands excluded by the provisions of Section 27 and 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. It was denied that suit land was redeemed in favour of the plaintiffs by the mortgagor within a period of 30 years from the date of mortgage. The suit land stood vested in the Custodian when it was not redeemed within the period of limitation. It was further pleaded that all such lands were acquired by the Central Government vide Notification dated 21.10.1981 and Tehsildar Sales, Gurdaspur is fully competent to dispose if of under the rules as it is deemed to be in the ownership of the Central Government and RSA No. 547 of 1986 3 the entries in the revenue record are correct. From the pleading of the parties, the following issues were framed 1.Whether the plaintiffs are owners in possession of the suit land after redemption? OPP 2.Whether the Civil Court has no jurisdiction to try the present controversy between the parties? OPP 3.Whether a notice u/s 80 C.P.C was not served before filing the present suit? If so, to what effect? OPD 4. Whether the suit is not maintainable in the present form? OPD 5.Whether the suit is bad for non-joinder of necessary parties ? OPD 6. Whether the suit land has vested in the Custodian after lapse of time ? OPD 7. Relief.” On 28.1.1985, the Addl. Sr.Sub Judge, Gurdaspur decreed the suit of the plaintiff for declaration that they are owners in possession of the suit land and the entries in the revenue record showing the plaintiffs as mortgagors are wrong. The defendant-State was restrained from putting the suit land to auction, for sale. The judgment of the trial court was on the premises that (i) the suit land could not vest in the Custodian when there was no Notification under section 7 of the Administration of Evacuee Property Act, 1948 ( for short referred to as the Act), declaring the land to be Evacuee Property vesting in the Custodian after 7.5.1954. The Central Government never became mortgagee and the property remained un- RSA No. 547 of 1986 4 encumbered. Aggrieved against the same, the State has filed the appeal. Ld. Ist Appellate Court, after appreciating the evidence on record and hearing the counsel for the parties, dismissed the appeal filed by the State of Punjab, State of Punjab preferred this second appeal, which was admitted on 20.5.1986. In the grounds of appeal, it was pleaded that the judgments and decrees passed by both the courts below are against law and facts and are not sustainable. Learned counsel for the respondents submitted that the suit property is not evacuee property, as no proceedings under section 7 of the Act were taken by the Custodian and on 7.5.1954 no such proceedings were pending against the plaintiff. He further submitted that this matter is covered by the decision rendered by this Court in “Custodian General, Punjab, Jalandhar and Ors. v. Ramji Dass and Others” ( RSA No. 2563 of 1985) decided on 5.9.2011, as similar proposition of law, involved in the instant case is exhaustively dealt with by this Court and prayed that this matter may be decided on the similar footing. Learned DAG, Punjab has argued that the land was not got redeemed within 30 years from the date of its mortgage, so the suit property vested in the Custodian Department as owner. I have heard the learned counsel for the parties and perused the record. The point for consideration before this Court is as to “whether the suit land vested in the Custodian when the property was not declared RSA No. 547 of 1986 5 Evacuee Property and no proceedings under section 7 of the Act were pending before 7.5.1954?” Similar proposition of law was dealt with by this Court in RSA No. 2563 of 1985. For the sake of reference, the relevant sections 2, 7 and 46 of the Act are reproduced below:- “Section 2 (f) “evacuee property” to mean any property of an evacuee (whether held by him as owner or as a trustee or as a beneficiary included any property which has been obtained by any person from an evacuee after the 14th day of August,1947 by any mode of transfer which is not effective by reason of the provisions contained in Section 40), but does not include:- i)Any ornament and any wearing apparel, cooking vessels or other household effects in the immediate possession of an evacuee; ii)Any property belonging to a joint stock company, the registered office of which was situated before the 15th day of August,1947 in any place now forming part of Pakistan and continues to be so situated after the said date; Section 7 (1) Where the Custodian, is of the opinion that any property is evacuee property within the meaning of this Act, he may after causing notice thereof to be given such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order RSA No. 547 of 1986 6 declaring any such property to be evacuee property. 7A. Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May, 1954: Provided that nothing in this section shall apply to: a) Any property in respect of which proceedings are pending on the 7th day of May 1954 for declaring such property to be evacuee property; and b) The property of any person who on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances had left on or after the Ist day of March 1947, any place now forming part of India, and who on the 7th day of May 1954 was resident in Pakistan. 46. Jurisdiction of Civil Courts barred in certain matters:- Save as otherwise expressly provided in this Act, no Civil or Revenue court shall have jurisdiction- a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. In the case of Dr. Rajendra Prakash Sharma vs. Gyan Chandra and Others, AIR 1980 Supreme Court 1206, while dealing with similar proposition of law, Hon'ble the Apex Court observed as under: “19. From a conjoint reading of Sections 7 and 8, it is clear that the making of a declaration after inquiry under section 7 that the property is 'evacuee property' is a sine qua non for giving RSA No. 547 of 1986 7 the Custodian dominion over the property. If no proceeding is taken under Section 7, there can be no vesting of the property in the Custodian. (See observations in Fazalbhoy v. Official Trustee of Maharashtra, (1979) 2 SCR 699 at p. 712: (AIR 1979 SC 687). 20. The other point to be noted is that in the case of an 'evacuee' falling under sub-clause (i) of the definition of 'evacuee' that is one, who on account of the things mentioned in sub-clause, leaves India or has left India on or after August 14, 1947, the vesting will date from the date he leaves India for any outside destination. In the instant case, Qazi Abdul Rashid left India to settle in Pakistan long after August 14, 1947 (in 1963). 21. Section 9 gives power to the Custodian to take possession of evacuee property which vest in him under section 8. 22. Then, there is Section 7A which was inserted by the Administration of Evacuee Property (Amendment) Act, 1954 (42 of 1954) with effect from May 7, 1954“ Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May 1954.” This is made subject to two provisos: Clause (a) of the First Proviso saves from the application of this section any property in respect of which proceedings are pending on the 7th day of May, 1954 for declaration of such property to be evacuee property. Clause (v) of the Proviso saves from the bar of this section property of any person who became an evacuee RSA No. 547 of 1986 8 on or after the Ist day of March, 1947, and who on the 7th day of May, 1954 was resident in Pakistan. The second Proviso lays down that no notice under section 7 for declaring any property to be evacuee property with reference to Clause (b) of the preceding Proviso shall be issued after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment)Act, 1954. Then, there are three explanations, which are not material for our purpose. 23 to 25 xx xx xx xx xx xx 26. Section 28 and 46 bar the jurisdiction of courts. Section 28 reads thus: “Save as otherwise expressly provided in this Chapter, every order made by the Custodian-General, Custodian, Additional Custodian, Authorized Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceedings.” 26-A, 27 and 28 xx xx xx xx 29. The matter can be looked at from another angle also. Clauses (a), (c) and (d) of Section 46 postulate that the time when the question whether or not a property is evacuee property comes for adjudication, the power of the Custodian- General or the Custodian under this Act of 1950 to determine that question is subsisting. That is to say, if at the point of time when the question arises, the power of the authorities RSA No. 547 of 1986 9 constituted under this Act to adjudicate that question stands terminated or extinguished by the operation of S.7A of 1954, none of the clauses (a), (c) and (d) of Section 46 will bar the jurisdiction of the Civil court to determine that question, which had not been decided by the Custodian during the period he had the power to determine it.” In the instant case, admittedly Chuhar Singh and Bahadur Singh were the owners of the suit land. They had mortgaged it in favour of Karam Bux and Mehar Din in the year 1943. Karam Bvux and Mehar Din mortgagees migrated to Pakistan on the day of partition of the country. The case of the plaintiffs is that the suit land was got redeemed from Karam Bux and Mehar Din before they migrated to Pakistan, but the State defended the case on the plea that the suit land has vested in the Custodian. The Ld. Trial Court decreed the suit in favour of the plaintiffs on the ground that no notice was given to the plaintiffs under section 7 of the Act and no declaration was made that suit property is Evacuee Property and unless it was so declared, it could not vest in the Custodian under section 8 of the Act. The State has failed to lead any evidence to the effect before the trial court,if any notice was given to the original owners or if any declaration was made with regard to the suit property under section 7 of the Act. The suit land never became Evacuee Property, as per provisions of the Act, and it never vested in the Custodian. There is no force in the contention of learned State counsel that the State became owner of the land as it was not redeemed within thirty years. The Full Bench of this Court in Ram Kishan v. Sheo Ram, 2008 (1) Punjab Law Reporter 1= AIR 2008, Punjab 77 has held that there is no period of limitation to get the land redeemed in case of RSA No. 547 of 1986 10 a usufructuory mortgage. Both the Courts below have rightly held that the plaintiffs are the owners, and are in possession of the suit land, as recorded in the revenue record. No ground is made out to interfere in the concurrent findings of facts arrived at by both the courts below. The appeal filed by the State fails and is dismissed. No costs. (JITENDRA CHAUHAN) JUDGE 1.11.2011 MS