Punjab-Haryana High Court
State Of Punjab vs Daya Ram Etc on 13 December, 2022
ANIL KUMAR
2022.12.23 12:48
RSA-3536-1987 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(206) RSA-3536-1987
Date of Decision: 13.12.2022
State of Punjab ...Appellant
Versus
Daya Ram and others ...Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Ms. Navreet Kaur Barnala, AAG, Punjab.
Mr. R. K. Arya, Advocate,
for respondents No.2(1) to 2(iii), 5(4i) and 5(iii).
None for respondent No.5(iv).
3K 2k 2 3k
HARKESH MANUJA, J.(OQRAL)
By way of present appeal, challenge has been made to the
judgment and decree dated 23.07.1986, passed by the Court of learned Sub
Judge, Ist Class, Gurdaspur and affirmed vide judgment and decree dated
23.07.1987 passed by the Additional District Judge, Gurdaspur, granting
declaration qua ownership of the suit land in favour of respondents/plaintiffs.
Facts
leading to the present appeal are that the
respondents/plaintiffs filed a suit for declaration qua ownership over the suit
land being in its possession, based on the facts that the land in question was
originally owned by one Nantu and was mortgaged with possession in favour
of predecessor-in-interest of the respondents/plaintiffs on 03.12.1896 for a
sum of Rs.89/-. It was further stated that the land in question was never got
redeemed by the original owner and thus, by afflux of time its ownership
vested in the respondents-plaintiffs. Challenged was also made to the
mutation No.1272 dated 01.03.1977 entered the name of appellant/defendant.
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RSA-3536-1987 2
Upon notice, appellant/defendant appeared and raised objections
as to the jurisdiction of the civil Court. Besides it, on merits, it was pleaded
that the land in question was owned by muslims and after partition the same
became evacuee property and the ownership thus, vested with the Government
by virtue of Section 9(2) of the Evacuee Interest (Separation) Act, 1951. It
was also pleaded the land in question being owned by muslims evacuees under
mortgage, was deemed to have been redeemed within a period of 20 years
from the date of its vesting with the Government.
Learned Trial Court vide judgment and decree dated 23.07.1986,
granted declaration, in favour of respondents/plaintiffs holding them to be
owner in possession of the suit property by recorded that the land in question
was never got redeemed within the prescribed period of limitation. It was also
found that appellant/defendant was not able to establish on record that the
mortgagees of the land in question belonged to muslim community and further
that from documents Ex.D-1 to Ex. D-4, the suit land was not proved to have
vested with Central Government.
Aggrieved against the judgment and decree dated 23.07.1986
passed by the trial Court, the appellant/defendant filed first appeal, however,
the same was also dismissed by the Court of learned Additional District Judge,
Gurdaspur, vide its judgment and decree dated 23.07.1987 the findings
recorded by the trial Court were affirmed by reiterating that the mortgagor was
not proved to be muslim and further that no document was proved on record to
establish that the land in dispute was an evacuee property. It is the aforesaid
judgments and decrees passed by the Courts below, which have been
impugned by way of present appeal.
Learned counsel for the appellant submits that by virtue of
Ex. D-3 & Ex.D-4 i.e. communication dated 20.02.1975 and the notification
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RSA-3536-1987 3
dated 21.10.1981, the land stood vested with the custodian being evacuee
property and even though no process was initiated to get it the same redeemed
within the prescribed period of limitation, the same automatically vested with
the Central Government by virtue of Section 9(2) of Evacuee Interest
(Separation) Act, 1951 and thus, the Courts below went wrong while
decreeing the suit in favour of respondents/plaintiffs.
On the other hand, learned counsel for the respondents/plaintiffs
submits that the document Ex. D-3 and D-4 do not apply to the facts and
circumstances of the present case as those only pertain to a mortgage wherein
the mortgagor was a legal owner and land was mortgaged in favour of muslim
evacuee.
I have heard learned counsel for the parties and have gone
through the paper book and records of the case. I am unable to accept the
submissions made on behalf of the appellant.
On perusal of documents Ex.D-3 and D-4, relied upon by the
appellant/defendant, one can easily trace out that the same do not relate to the
mortgage in question wherein, the land was mortgaged in favour of
predecessor-in-interest of respondents/plaintiffs by the predecessor-in-interest
of Nantu who has not been established on record to be belonging to muslim
community. Thus, the appellant/defendant cannot be granted any benefit of
the notification dated 21.10.1981 issued by the Rehabilitation
Department, Government of Punjab (Ex.D-4) which only relate to a mortgage
created by a local land owner in favour of muslim evacuee.
Still further, the Courts below have found that the mutation
No.1272 dated 01.03.1977, referring the land in dispute to be the evacuee
property was recorded in favour of appellant/defendant without issuing any
notice to the respondent/plaintiffs who were admittedly in long settled
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ANIL KUMAR
2022.12.23 12:48
RSA-3536-1987 4
physical possession over the property in question in violation of Section 7 of
the Administration of Evacuee Property Act, 1950 and too in the absence of
any notification proved on record as prescribed under the said provision.
More than that the land was never got redeemed within the prescribed period
of limitation and as such by afflux of time, the respondents/plaintiffs were
rightly declared to be owner in possession of the suit property, particularly
when the mortgage in question could not be held to be "usufructuary
mortgage", the mortgagee not proved to be belonging to muslim community
and on account of non-applicability of Section 9(2) of the Evacuee Interest
(Separation) Act, 1951.
Accordingly, finding no substantial question of law involved in
the present appeal, I do not find any illegality or infirmity in the concurrent
findings of fact as recorded vide impugned judgments and decrees dated
23.07.1986 & 23.07.1987 passed by the Courts below, and thus, the same call
for no interference. As such, the present appeal is dismissed with no orders as
to costs.
Pending applications, if any, shall stand disposed of.
(HARKESH MANUJA)
JUDGE
13.12.2022
anil
Whether speaking/reasoned Yes/No
Whether reportable : Yes/No
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