IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 11.12.2024 Date of Order:14.01.2025 Jagum Hussain and another ...Appellants Versus State of Haryana and another ...Respondents CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL.

Present: Mr. Dinesh Singh Rawat, Advocate, for the appellants.

Mr. Naveen S. Bhardwaj, Addl.A.G., Haryana Mr. Karan Sharma, DAG, Haryana.

Mr. Parminder Singh, Advocate for the applicant/proposed respondent no.3(in CM-518-C-2023)

ANIL KSHETARPAL, JUDGE.

1. FACTUAL BACKGROUND

1.1 In this Regular Second Appeal, the plaintiffs assail the correctness of the concurrent findings of fact arrived at by the courts below while dismissing his suit for grant of decree of declaration that they have become owner of the property by lapse of time as the mortgage has never been redeemed for the more than last 100 years.

1.2 While filing the suit, the plaintiffs claim that their father Sh. Sultan Hussain was a mortgagee in possession of land measuring 15 kanals and 2 marlas which was owned by Muslim proprietors who migrated to Pakistan in 1947, however, the plaintiffs and their father never migrated to Pakistan and continued to live in village Wayyad Chhapra. They claim that the property has wrongly been auctioned in favour of Mai Chand on

09.10.1985 by Tehsildar (Sales), Karnal.

1.3 The defendants contested the suit and claimed that as per Section 9(2) of Evacuee Interest (Separation) Act, 1951 (hereinafter referred to as 'the 1951 Act'), the mortgage extinguished after 20 years on the date the deed of mortgage was executed.

1.4. The trial court upon appreciation of pleadings culled out the following issues:-

“1. Whether the plaintiffs are owner in possession of the suit land as the suit land was not redeemed for the last 30 years?OPP

2. Whether this court has no jurisdiction to try this suit?OPD

3. Whether notice u/s 80 CPC served on the defendants, is not so, to what effect?OPP

4. Whether the auction dated 6.10.85 is liable to be set aside for the reasons taken in the plaint?OPP

5. Relief.”

1.5. Both the courts upon appreciation of the evidence dismissed the suit.

2. ARGUMENTS PUT FORTH BY THE LEARNED COUNSEL REPRESENTING the PARTIES:-

2.1 This Bench has heard the learned counsel representing the appellants at length and with his able assistance perused the paper book along with the requisitioned trial court record and his written arguments.

2.2. The learned counsel representing the appellants has contended that the redemption of mortgage in terms of Section 9(2) of the 1951 Act is a complex process and requires careful handling. He submitted that the process of separating the interest of evacuees and non-evacuees cannot be completed without addressing the existing mortgagees or encumbrances on the property. He contended that the State Government is claiming that the suit land is evacuee property only on the basis of revenue entries without showing due process of law to declare the suit property as evacuee property and principles of natural justice were not followed before auctioning the property. He also relies upon the judgment passed in Kanwar Kamaljit Singh vs. Custodian Evacuee Property, Punjab, 1992 AIR (Punjab and Haryana) 72 and Dr. Rajendra Prakash Sharma vs. Gyan Chandra and others, 1980 AIR (Supreme Court) 1206.

2.3. Per contra, the learned counsel representing the State has defended the judgments passed by the courts below.

3. ANALYSIS AND DISCUSSION:-

3.1 At this stage, it would be appropriate to extract Section 9 of the

1951 Act.

“9. Certain reliefs in respect of mortgaged property of evacuees.

(1) Notwithstanding anything to the contrary in any law or contract or any decree or order of a Civil Court or other authority, where the claim is made by a mortgagee, no mortgaged property of an evacuee shall, subject to the provisions of sub- section (2), be liable for the payment of interest at a rate exceeding five per cent.

per annum simple on the principal money advanced or deemed to have been advanced.

(2) Where a mortgag