The main legal point established in the judgment is the automatic vesting of property in the custodian under the Evacuee Local Act and Evacuee Separation Act, leading to the extinguishment of the mortgage debt and the custodian's ownership rights.

1. The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the first Appellate Court whereby suit for declaration and for permanent injunction was dismissed in appeal.

2. The plaintiffs have sought declaration inter-alia on the ground that they are entered as mortgagees with possession with respect to the agricultural land measuring 28 Kanals 13 marlas as detailed in the plaint. An area measuring 14 Kanals 15 marlas, i.e. 2338/4516th share in the land measuring 27 kanals 13 marlas has been auctioned by defendants No. 1 to 4 in favour of the defendant No. 5 on 16-1-1991. The custodian has wrongly been entered as mortgagors of the said share in the suit land. The plaintiffs are also having some share in the suit land but are recorded as mortgagees of the entire land for times immemorial for the last more than 100 years. Some of the Muslims became evacuees and the share of the said co-sharers came to vest in the custodian and the said share is 2338/4516.

3. In the written statement filed on behalf of defendants No. 1 to 4 it was the stand of the defendants that the suit was mortgaged by the predecessor-in-interest of muslim evacuees vide mutation No. 54 dated 1-8-1908 and decided on 15-8-1908 in favour of the predecessors-in-interest of the plaintiffs for Rs. 10.00 . On migration of the Muslims to Pakistan in the year 1947 their share automatically vested in the custodian under Section 4 of the East Punjab Administration Evacuee Property Act, 1947 (hereinafter referred to Evacuee Local Act). The said land automatically vested in custodian free from all encumbrances under Section 9(2) of Evacuee Interest (Separation) Act, 1951 (hereinafter referred as Evacuee Separation Act) as the period of 20 years from the date of mortgage has already expired on the enforcement of the said Act.

4. On the basis of respective pleadings of the parties, the following issues were framed by the learned trial Court :

1. Whether the plaintiffs are owners in possession of the suit land and entitled to the relief of injunction as prayed for ? OPD

2. Whether the Civil Court has no jurisdiction to entertain and try the present suit ? OPD

3. Whether the suit is barred by the period of limitation in time ? OPD

4. Whether the present suit is bad for non-compliance of the provisions under Section 80, CPC ? OPD

5. Relief.

5. Voluminous evidence in the shape of revenue record was produced. The learned trial Court held that the mutation Ex. P. 12 was sanctioned on 27-2-1889 from Ladwi in the name of Mallu which was recorded as a mortgagee in Khasra No. 291. After referring to the revenue records, the argument was raised that on the date when Evacuee Separation Act came into force in 1951, 60 years had already expired and plaintiffs have thus, become owners in possession of the suit land as the same was not redeemed in time. It was held that since no proceedings under Section 7 of the Act have been proved to have been initiated, therefore, land does not vest in the custodian. Thus, it concluded that mortgagors of the suit land have failed to get redeemed the suit land within the prescribed period of limitation and thus, the plaintiffs are liable to be declared as owners in possession of the suit property. However, the learned first Appellate Court set aside the judgment and decree passed by the learned trial Court on the ground that the plaintiffs have admitted the factum of migration of some persons to Pakistan and therefore, their share to the extent of 2338/4316 vested automatically in the custodian. On the basis of the statement of P.W. 1 Illyas, the Court held that the land belonging to persons who migrated to Pakistan, vested in custodian and so the entries in favour of the custodian cannot be said to be wrong. It also held that if the plaintiffs were aggrieved against any action of Union of India, State of Haryana of Tehsildar (Sales), they could avail the remedy available to them under Special statutes. Still further