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2018 Supreme(P&H) 4241
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Amol Rattan Singh, J.
State Of Punjab - Appellant
Versus
Mahain Singh - Respondent
RSA No. 1743 of 1987 (O&M)
Decided On : 15-10-2018
Akshita Chauhan, AAG, Punjab, for the Appellants; Deepak Verma, Advocate, for the Respondents
The main legal point established in the judgment is that the non-redemption of a mortgage within the statutory period does not automatically vest the property in the mortgagee, and the civil court has jurisdiction to entertain a suit when the government does not have possession of the disputed land.
Headnote:
Mortgage - Property Dispute - Punjab Package Deal Properties (Disposal) Act, 1976 - Section 16 - Article 63 of the Limitation Act, 1963
Fact of the Case:
The plaintiffs sought a declaration of ownership and prohibitory injunction over a land they purchased, which was allegedly mortgaged to Muslim evacuees. The defendants claimed that the land vested in the Custodian on behalf of the Central Government due to non-redemption of the mortgage within the statutory period.
Finding of the Court:
The trial court found the plaintiffs to be in possession of the land and decreed the suit in their favor. The appellate court upheld the decision. The court held that the Central Government and the State of Punjab did not have possession of the land and therefore the civil court had jurisdiction to entertain the suit.
Issues: Ownership and possession of the disputed land, jurisdiction of the civil court, effect of non-service of notice under section 80 of the CPC, maintainability of the suit, mis-impleadment of parties, entitlement to prohibitory injunction
Ratio Decidendi: The court found that the land did not vest in the appellants as the mortgage was not redeemed within the statutory period. The court also held that the civil court had jurisdiction to entertain the suit as the Central Government and the State of Punjab did not have possession of the land.
Final Decision: The appeal was dismissed, and the judgments of the lower courts were upheld with costs throughout.
JUDGMENT
Amol Rattan Singh, J. - This second appeal was filed by the State of Punjab and the Union of India in the year 1987, challenging therein the judgments of the learned Sub Judge, Ist Class Gurdaspur, dated 24.01.1986 and the learned Ist appellate Court, i.e. the Additional District Judge, Gurdaspur, dated 18.08.1986.
Vide the former judgment the learned trial Court decreed the suit of the respondents/plaintiffs, who were seeking a declaration to the effect that they are owners-in-possession of the suit land (to the extent of their shares), measuring 23 kanals and 18 marlas, fully described in the plaint, situated in village Gosal, District Gurdaspur. The consequential relief of prohibitory injunction sought, restraining the appellants herein from interfering in their lawful possession over the suit land, was also granted by that Court, with the said judgment and decree having been upheld by the learned Additional District Judge, upon an appeal filed by the present appellants.
2. The case of the plaintiffs was that one Swinder Singh was originally the owner of land, half of which he had sold to the plaintiffs for a consideration of Rs. 2000/-, vide a registered sale deed dated 06.02.1970, also delivering possession of the land to them.
Thus the plaintiffs having purchased it for valuable consideration, with them also contended to be in possession of the land, upon the appellants/defendants allegedly threatening to alienate it in favour of other persons, without any right to do so, the suit came to be instituted on 31.01.1984.
3. Upon notice issued to them the appellants/defendants appeared and filed their written statement, contending that even as per the revenue record, the aforesaid Swinder Singh, alongwith other co-sharers, had mortgaged the suit land in favour of 'Muslim evacuees' (who had left for Pakistan in the year 1947) and that in the jamabandi (record of rights) for the years 1968-69, Swinder Singh and Achhar Singh were recorded to be mortgagors in equal shares, while the Custodian of Evacuee Property was recorded to be the mortgagee with possession, in respect of that part of the suit land which was comprised in khasra no. 7/12/2, 18 and 19.
The remaining land, comprised in khasra nos. 7/16 and 17/1, was also contended to be recorded in the possession of the Custodian.
These entries were stated to have been repeated in the subsequent jamabandi for the year 1973-74, though in the 'cultivation column' of that jamabandi, one Chanan Singh son of Buta Singh and another Chanan Singh, son of Lachman Singh, were entered as
Ghair-Dakhilkars.
The same entries were incorporated in the subsequent jamabandi for the year 1978-79.
Hence, the contention of the appellants herein, i.e. the defendants, was that as per revenue record, the land having been mortgaged to Muslim evacuees, with it not having been redeemed by the mortgagors or their predecessors-in-interest within "the statutory period of 30 years", it vested in the Custodian on behalf of the Central Government, free from all encumbrances in terms of a notification dated October 21, 1981.
4. It was further pleaded by the appellants in their written statement, that the sale of land by Swinder Singh was subject to the mortgagee rights of the Custodian and in fact the plaintiffs were in unauthorised possession thereof, who could not be allowed to retain the same indefinitely and consequentially, were to be evicted therefrom.
It was next pleaded that the Tehsildar (Sales) was fully competent to dispose of the suit land under the relevant rules and therefore, the plaintiffs had no locus to institute the suit, which also was 'Package Deal Property' thereafter belonging to the Punjab Government, with the Civil Court having no jurisdiction to entertain the suit in terms of Section 16 of the Punjab Package Deal Properties (Disposal) Act, 1976.
In fact, as per the appellants, the plaintiffs' efficacious remedy was before the authority concerned under the said Act.
No valid notic
