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1992 Supreme(P&H) 983
PUNJAB & HARYANA HIGH COURT
Jawahar Lal Gupta, J.
Devinder Nath Alias Devinder Singh
Versus
Kishori Lal
Regular Second Appeal No. 568 of 1979,
Decided On : NOVEMBER 3, 1992
The evacuee interest in a composite property is limited to the interest of the evacuee, and the vesting of the evacuee interest in the Custodian does not extinguish the rights of other co-owners.
Headnote:
EVACUEE INTEREST (SEPARATION) ACT, 1951 - SECTION 2(D)(III), 6, 7, 8, 9, 11 - MORTGAGE - REDEMPTION - COMPOSITE PROPERTY - EVACUEE INTEREST - VESTING IN CUSTODIAN - LIMITED INTEREST - PURCHASE OF LAND - EXTINGUISHMENT OF MORTGAGE - PLEADINGS - SECOND APPEAL - NEW PLEA - DISMISSAL OF APPEAL.
Fact of the Case:
Kishori Lal, Gurdial Chand, and Ram Lal mortgaged their 3/5th share of land to Fattu. After the partition of the country, the custodian passed an order vesting the land in the custodian under Section 11 of the Act free from all encumbrances. Ram Lal died, and his heirs applied for redemption. The competent authority ordered the redemption of the land on payment of the mortgage amount. The heirs of Ram Lal got possession of the land. Kishori Lal and Gurdial Chand filed a suit for possession, claiming 2/5th share on payment of proportionate redemption money. The trial court dismissed the suit, but the lower appellate court reversed the findings. The defendants appealed to the High Court.
Finding of the Court:
The High Court held that the land in dispute had become a composite property, but the evacuee interest was limited to the mortgagee rights. The competent officer had only to separate the evacuee interest in the entire property. The plaintiff-respondents did not submit any claim before the competent officer, and the competent officer passed an order vesting the evacuee interest in the Custodian free from all encumbrances. The defendant-appellants were permitted to redeem the property. The land retained its original character, and the claim made by the plaintiff-respondents was rightly decreed by the lower appellate Court. The contention that the mortgage had extinguished on the expiry of twenty years was rejected as the provision applied to cases of property mortgaged by the evacuees, not to the present case where the evacuee was the mortgagee. The plea was also not raised in the written statement, and the appellants could not be permitted to raise it for the first time in the second appeal.
Issues: 1. Whether the land in dispute had become a composite property and the evacuee interest vested in the Custodian free from all encumbrances? 2. Whether the defendant-appellants had become the absolute owners of the land by purchase from the Central Government? 3. Whether the mortgage had extinguished on the expiry of twenty years?
Ratio Decidendi: 1. The land in dispute had become a composite property, but the evacuee interest was limited to the mortgagee rights. The competent officer had only to separate the evacuee interest in the entire property. The plaintiff-respondents did not submit any claim before the competent officer, and the competent officer passed an order vesting the evacuee interest in the Custodian free from all encumbrances. 2. The defendant-appellants were permitted to redeem the property. The land retained its original character, and the claim made by the plaintiff-respondents was rightly decreed by the lower appellate Court. 3. The contention that the mortgage had extinguished on the expiry of twenty years was rejected as the provision applied to cases of property mortgaged by the evacuees, not to the present case where the evacuee was the mortgagee. The plea was also not raised in the written statement, and the appellants could not be permitted to raise it for the first time in the second appeal.
Final Decision: The appeal was dismissed.
1. Shiboo Ram had five sons viz. Kishori Lal, Gurdial Chand, Jaswant Rai, Dharam Chand and Ram Lal. Kishori Lal, Gurdial Chand and Ram Lal mortgaged their 3/5th share of land measuring 13 kanals 17 marlas with one Fattu. On the partition of the country, the custodian passed an order on Sept. 8, 1958 under S. 11 of the Act to the effect that the "land is vested in the custodian under Sec. 11 of the Act free from all encumbrances and liabilities." It appears that Ram Lal died. On his death, his heirs viz. Devinder Nath alias Divender Singh, Kewal Krishna, Dev Raj, Hukam Chand, Surinder Pal and his widow Lachmi Devi filed and application for redemption. This application was considered by the competent authority. An order was passed on 26/07/1968. It was inter alia observed that
"the representative of the custodian has admitted that the land in question was under mortgage for a sum of Rs. 1000.00 and the custodian has no objection if the same is redeemed on payment of the mortgage amount. In view of the evidence produced by the claimants and the statement made by Shri Devinder Nath and the representative of the custodian, I hold that the land was under mortgage for a sum of Rs. 1000.00 with the evacuee and this land will be redeemed in favour of the claimants on their paying Rs. 1000.00 on account of mortgage amount and Rs. 10.00 as cost of notices. The amount be deposited by the claimants within one month. To come up on 23-8-1968. A copy of this order has been produced as Ex. P5. On 23/08/1968, the competent authority passed an order to the effect that the full mortgage debt having been paid land measuring 11 kanals 11 marlas i.e. 3/5th share of Khasra Nos. 3853, 3855 pre-consolidation and land measuring 13 kanals 17 marlas i.e. 3/5th share of Killa Nos. 39/24, 49/7, 73 and 49 min situated in village Mianian Tehsil Moga after consolidation stands redeemed in farour of Devidender Singh, Kewal Krishna, Dev Raj, Hukam Chand, Surinder Paul, Lachmi Devi"
. It was further provided that the warrant for the delivery of the possession will be issued after receiving the proper application. A copy of this order is at Ex. P6. The directions for the delivery of symbolic possession were actually issued vide order dated 31/08/1971, a copy of which has been produced as Ex. D1.
2. The heris of Ram Lal having got possession of the land, Kishori Lal and Gurdial Chand filed a suit for possession. It was averred that the property was joint and that the heirs of Ram Lal, the defendants hold the property on behalf of the plaintiffs and that they were entitled to get 2/5th share on payment of Rs. 670.00, the proportionate redemption money. The defendants contested this suit on the plea that the shareholders of the land had been cultivating it individually and that the land having vested in the Central Government, they had got its possession by way of transfer on appeal after payment of the assessed amount of Rs. 1010.00. The trial Court framed the following issues:-
1. Whether defendants Nos. 1 to 4 and 6 are the purchasers of the land in suit from the Central Government ? O.P.D.
2. If issue No. 1 is not proved, whether the plaintiffs, are entitled to possession of 2/5th share in the suit land on payment of Rupees 670-00 ? O.P.P. 3. Relief.
Finding that the defendants 1 to 4 and 6 had become the owners of the property by purchase thereof from the Central Government and that the plaintiffs were not entitled to any share therein, the trial Court dismissed the suit. These findings having been reversed by the lower appellate Court, the aggrieved defendants have come up in second appeal to this Court.
3. Mr. M. S. Rakkar, learned counsel for the appellants has made a two-fold submission. By referring to the provisions of the Evacuee Interest (Separation) Act, 1951 (hereinafter referred to as the Act), the learned counsel contends that the land in dispute had become a composite property. Notice as contemplated under Sec. 6 of the Act for the purpose o
