Ranjit Singh, J.

1. Issue of significant importance concerning the Doctrine of Merger and that of Res judicata would arise for consideration in the present writ petition. At stake is the right of the petitioners and that of respondent No. 2 concerning the property, which was mortgaged before partition by respondent No. 2 to a person, who migrated to Pakistan after partition. Whether such a mortgaged property become evacuee property to be dealt with by custodian would be another important question requiring determination ?.

2. The petitioners while challenging order, Annexure P6, passed by District and Sessions Judge, Hoshiarpur (respondent No. 1) exercising revisional powers under the Evacuee Interest (Separation) Act, 1951 (for short "the Act") would urge that respondent No. 1 could not have set at naught the proceedings finally determined by competent officer after 16 years, that too without sufficient cause shown, when the sale in favour of the petitioners had been confirmed and finalised much earlier.

3. The facts, as pleaded, are that respondent No. 2 mortgaged his land measuring 64 kanals 17marlas with Shri Tuffail Mohmad alias Abdul Hamid of village Mohydinpur Gazi for a sum of Rs. 8,000/- vide a registered deed dated 10.3.1947. Mutation No. 539 was sanctioned on the basis of this mortgaged deed on March 7, 1949. Respondent No. 2 also mortgaged another land measuring 11 kanals 16 marlas with Naseerudin son of Mehtab and Fazaludin son of Peer Ditta for sum of Rs. 1,000/- through a mortgage deed dated January 5, 1946 and December 28, 1946. Mortgagees migrated to Pakistan and the land statedly became a composite property. On December 29, 1958, competent officer declared that both these properties had vested in the custodian. On an appeal, this order passed by the competent officer, however, was set-aside and he was directed to decide the case afresh. Competent Officer again took up the case after remand and entered the cases as Claim No. 4484/4498 with respect to land measuring 11 kanals 16 marlas mortgaged vide deed dated January 5, 1946 and December 28, 1946. The competent officer entered the another case as Claim No. 4497-4485 in respect of the land 64 Kanals 17 Marlas mortgaged through deed dated March 10, 1947. Thereafter, Competent Officer directed respondent No. 2 to deposit mortgage money with respect to Claim No. 4484/4498. Respondent No. 2, however, did not comply with the orders despite grant of extension of time for depositing the amount. Rather, it is averred that respondent No. 2 made a categorical statement on November 19, 1962 before the competent officer that he did not want to redeem this land as the same had been allotted to displaced persons in consolidation and the land had been included in the Tucks of allottees. The competent officer accordingly declared that this land had vested in the custodian free from all incumbrances as the mortgagee had expressed his unwillingness to redeem the land.

4. It is stated that the claim in respect of mortgage deed dated March 10, 1947 though was not submitted in time, but still the competent officer entertained the claim on October 12, 1962. He accordingly ordered that mortgagee can redeem the land on payment of Rs. 8002/- (Rs. 2/- being notice charges). The money was required to be deposited in the treasury and the challan was to be presented before the competent officer on November 17, 1962. The mortgage amount, however, was not deposited. The competent officer extended the time upto January 1, 1963. Neither the amount was deposited on the date fixed nor the mortgagee appeared before the competent officer.

5. The competent officer accordingly ordered the sale of composite property, which was conducted on February 11, 1963 after notice to respondent No. 2. Respondent No. 2, challenged the auction sale by filing application dated February 13, 1963. While entertaining the application, the competent officer adjourned the proceedings to March 18, 1963, while af