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Jaswant Singh and ors. Vs. the Custodian, Evacuee Property, Punjab, Jullundur and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberAmended Writ Petn. No. 4563 of 1973
Judge
Reported inAIR1983P& H273
ActsEvacuee Interest (Separation) Act, 1951 - Sections J6, 7, 8, 9, 10 and 11; Administration of Evacuee Property Act, 1950 - Sections 7; Code of Civil Procedure (CPC), 1908
AppellantJaswant Singh and ors.
RespondentThe Custodian, Evacuee Property, Punjab, Jullundur and anr.
Cases ReferredAbdul Hakim Khan v. Regional Settlement Commissioner
Excerpt:
.....having failed to get relief from the assistant custodian, filed an appeal against the order of the competent officer dated 26th aug. the competent officer at best could separate the evacuee interest from the non-evacuee interest in the land by effecting its sale. 11 of the act clearly provides that in the absence of any claim, the competent officer can vest whole of the property in the custodian free from all encumbrances and liabilities. 7. the learned counsel for the petitioners has argued that the impugned order of the competent officer (annexure 'b') is bad because no enquiry was held regarding the nature or extent of the evacuee interest in the land in dispute. 1969. having failed to get the land redeemed from the custodian authorities, the petitioners filed an appeal against the..........reliance has been placed on abdul hakim khan v. regional settlement commissioner cum-custodian of evacuee property, bhopal, air 1961 sc 1391. 4. the relevant parts of ss. 6, 7, 8 and 11 of the evacuee interest (separation) act, 1951(hereinafter 'the act') read as under :-- '6. notice to submit claims: (1) for the purpose of determining or separating the evacuee interest in a composite property, any competent officer having jurisdiction over such property may, either on information received in this behalf from the custodian or on an application from a claimant, issue, in such form and manner as may be prescribed,-- (a) a general notice requiring all persons who claim interest in such property, and (b) also a notice on every person who, in he opinion of the competent officer, may have.....
Judgment:
ORDER

1. Mal Singh (Now deceased), father of petitioners, mortgaged his land with possession in village Sahnewal Kalan, Tehsil and District, Ludhiana, with Muslims before the partition of the country. The Muslim mortgages migrated to Pakistan at the time of the partition of the country. It appears that after the migration of the Muslim mortgagees to Pakistan, Mal Singh took possession of the land which he had otherwise mortgaged with possession with them. After partition of the country, the land in revenue records was shown as owned by Mal Singh and under mortgage with the Muslims. The information about this land which was being shown as composite in the revenue records, was sent to the Competent Officer, Ludhiana, obviously for separation of the evacuee interest from the non-evacuee interest therein. The Competent Officer issued requisite notices individually as also by publication in the press. No claim was filed by anybody, including Mal Singh. The Competent Officer, Ludhiana, vide order dated 26th Aug. 1954(Annexure 'B') vested the entire land in the Custodian, The order Annexure 'B' reads :

'Notices B & C have been duly issued, but no claim has been filed within the prescribed period of 60 days, The property is allowed to vest in the Custodian.'

2. In pursuance of this order the land was mutated in the name of Central Government in the revenue records on 7th Aug. 1962. Kirpal Singh respondent was allotted land measuring 32 Kanals 10 Marlas out of the land which at one time was owned by Mal Singh and was vested in the Custodian by the Competent Officer in 1954. Mal Singh died in Oct. 1969. The Qanungo delivered the possession of the allotted land to Rajinder Pal Singh son of Kirpal Singh on 23rd Dec. 1969 in the presence of Jagit Singh petitioner son of Mal Singh vide report (Annexure 'R2') In 1970 the petitioners approached the Assistant Custodian for getting their land redeemed, which stood mortgaged in favour of the Muslims. The petitioners having failed to get relief from the Assistant Custodian, filed an appeal against the order of the Competent Officer dated 26th Aug. 1954(Annexure 'B') on 9th Mar. 1970. This appeal was dismissed by the Appellate Officer. Ludhiana, vide order dated 16th Oct. 1973(Annexure 'D') The petitioners have assailed the orders Annexure 'B' and 'D' in the present writ.

3. The learned counsel for the petitioners had argued that the order of the Competent Officer dated 26th Aug. 1954(Annexure 'B') is liable to be set aside because the Competent Officer had no jurisdiction to vest the equity of redemption in the land in dispute, which was owned by Mal Singh, in the Custodian. The land in the revenue records was shown as owned by Mal Singh and mortgaged with the Muslim evacuees. The mortgage rights in the land would, therefore, be deemed to have vested in the custodian. The Competent Officer had no jurisdiction to vest the non-evacuee interest in the land in the Custodian. The Competent Officer at best could separate the evacuee interest from the non-evacuee interest in the land by effecting its sale. Reliance has been placed on Abdul Hakim Khan v. Regional Settlement Commissioner cum-Custodian of Evacuee Property, Bhopal, AIR 1961 SC 1391.

4. The relevant parts of Ss. 6, 7, 8 and 11 of the Evacuee Interest (Separation) Act, 1951(hereinafter 'the Act') read as under :--

'6. Notice to submit claims:

(1) For the purpose of determining or separating the evacuee interest in a composite property, any competent officer having jurisdiction over such property may, either on information received in this behalf from the Custodian or on an application from a claimant, issue, in such form and manner as may be prescribed,--

(a) a general notice requiring all persons who claim interest in such property, and

(b) also a notice on every person who, in he opinion of the competent officer, may have a claim in such property,

to submit claims, if any, in respect of that property.

* * * *' '7. Submission of claims-

(1) Any person claiming an interest in a composite property may, within sixty days of the date of the issue of the general notice or service of individual notice under S. 6, whichever is later, submit to the competent officer a statement of his claim in writing and signed and verified in the prescribed manner.

(2) A statement of claim under sub-section (1) shall be drawn up, as far as may be, in the form of pleadings under the Code of Civil Procedure, 1908 and shall include the following particulars; namely :--

(a) the nature of the interest of the claimant in the composite property;

(b) the estimated money value of the composite property;

(c) where the claim is made by a co-sharer or partner, the extent of the share of the claimant and the money value of such share;

(d) where the claim is made by a mortgagee,--

(i) the principal money and the rate of interest chargeable under the mortgage deed;

(ii) payments made towards the mortgage debt after the principal money was advanced or deemed to have been advanced;

(iii) the history of the mortgage debt in so far as it is relevant to the determination of the principal money;

(iv) particulars of the property mortgaged and the estimated value of such property;

(v) particulars of any property the possession of which has been taken by the mortgagee as security for or in lieu of payment of, the mortgaged debt;

(vi) the total amount claimed under the mortgage debt in according with the provisions of this Act;

(e) where the claim is made by a mortgagor, the total amount due under the mortgage debt and the particulars necessary to determine the same;

* * * * (3) The claimant shall, along with the submission of claim under sub-sec (1), file true copies of all documents in his possession or power on which the claim is based and a list of any other documents (whether in his possession or power or not) on which he intends to rely as evidence in support of his claim; and the claimant shall, whenever required to do so by the competent officer, produce all the documents of which true copies have been filed and also the documents in his possession or power which have been entered in the list.

* * * *' '8. Decision by competent officer-

(1) On receipt of a statement of claim, under S. 7, the competent officer shall, subject to the provisions of sub-section (2) and (3), hold an inquiry into the claim in accordance with the procedure laid down in S. 17 and pass an order determining the interest of the evacuee and the claimant in the property in question and the order shall contain all or any of the following particulars, namely ;--

(a) the money value of the property,

(b) in any case where he evacuee and the claimant are co-sharers or partners, their respective shares in the property and the money value of such shares;

(c) in any case where the claim is made by a mortgagor, the amount due to the evacuee;

(d) in any case where the claim is made by a mortgagee, the amount due under the claim in accordance with the provisions of S. 9'.

'11. Vesting of evacuee interest in the Custodian free from encumbrances and payments, etc., to be valid discharge from all claims.

(1) Where in respect of any property, notice under S. 6 is issued but no claim is filed or found to exist or where any claim in respect of such property is found to exist and the competent officer separates the evacuee interest therein under S. 10, the whole property, or, as the case may be, the evacuee interest in the property thus separated shall vest in the Custodian free from all encumbrances and liabilities and any payment, transfer or partition made or, effected under S. 10, in satisfaction of any claim in respect of the property shall be a full and valid discharge of all claims in respect of the property.'

5. In the instant case information was received by the Competent Officer regarding the land in dispute. The Competent Officer issued notices under S. 6 of the Act. It is evident that a general notice by publication as also an individual notice to Mal Singh were issued. No claim was received in pursuance of the notices issued. In the absence of any claim, the Competent Officer vested the land in the Custodian vide order dated 26th Aug. 1954(Annexure 'B') passed under S. 11 of the Act. The argument of the learned counsel for the petitioners is that the Competent Officer had no jurisdiction too vest the equity of redemption, which was owned by Mal Singh, in the Custodian. The contention of the earned counsel is fallacious.

6. It has been held in Abdul Hakim Khan's case (AIR 1961 SC 1391)(Para 12)(supra) that:

'.........Notices under S. 6 are issued 'for the purpose of determining or separating the evacuee interest in a composite property.' The object of the notice can therefore be one or other of two things, namely, for determining the evacuee interest or for separating the evacuee interest, in a composite property. These are two entirely different things and are so treated in the Act as will appear from the definition of composite property and Ss. 8, 9 and 10. The question of determining the evacuee interest arises when the is either a mortgagor's or mortgagee's in property or an undivided share in properly the extent of which is not known. The determination is then made as provided in cls. (b), (c), and (d) of S. 8(1), ascertaining the quantum of the interest as mortgagor, mortgagee or co-sharer, as the case may be. A question as to separation of interest can arise, of course, only when that interest is known, This is done under S. 10 of the Act. A case of separation may arise, for example, when the evacuee is found to have a definite undivided share in property.'

In Abdul Hakim Khan's case (supra) the Custodian in proceedings Under S. 7 of the Administration of Evacuee Property Act, 1950, declared that the migrants evacuees had 4/7th share in certain properties. It was held that after such specific determination by the Custodian, the Competent Officer could not vest the Competent Officer could not vest the remaining non-evacuee share in the properties in the Custodian. It is not so in the present case., The learned counsel for the petitioners has contended that the land in dispute was shown as owned by Mal Singh and mortgaged with the Muslims in the revenue records. The argument proceeds that the evacuee interest in the land stood vested in the Custodian automatically. The mortgagee rights in the land in dispute, therefore, stood vested in the Custodian and the equity of redemption continued to be non-evacuee. The automatic vesting of the mortgagee rights in the land in dispute is at par with an order under S. 7 of the Administration of Evacuee Property Act. 1950. The Competent Officer was, thus, not required to determine the evacuee interest in the land in dispute and he was only required to separate the evacuee interest from the non-evacuee interest. The Competent, Officer, therefore, could not vest the equity of redemption in the Custodian in terms of rule laid (supra). The contention is devoid of any force. In the instant case an information was supplied to the Competent Officer regarding the land in dispute. No specific order under S. 7 of the Administration of Evacuee Property Act, 1950 has been passed by the Custodian. It was a case of mortgage in favour of the evacuees. Under these circumstances it was necessary for the Competent Officer to first determine the evacuee interest in the land in dispute. In a case where the Competent Officer is required to determine the evacuee interest in the property, the evacuee interest so determined shall vest in the Custodian. It was, therefore, within the competency of the Competent Officer to hold that the entire interest in the land was evacuee. The impugned order of the Competent Officer thus cannot be held to be ultra vires. It may be added that S. 11 of the Act clearly provides that in the absence of any claim, the Competent Officer can vest whole of the property in the Custodian free from all encumbrances and liabilities.

7. The learned counsel for the petitioners has argued that the impugned order of the Competent Officer (Annexure 'B') is bad because no enquiry was held regarding the nature or extent of the evacuee interest in the land in dispute. This contention is again without merit. Under S. 8 of the Act it was obligatory for the Competent Officer to hold an enquiry if any claim had been filed under S. 7 thereof. In view of the fact that no claim had been filed by anybody, including Mal Singh, it was not obligatory for the Competent Officer to hold an enquiry in terms of S. 8 of the Act before passing the impugned order (Annexure 'B').

8. Mal Singh admittedly died in Oct, 1969. He was, therefore, alive when the Competent Officer issued notice under S. 6 of the Act, with respect to the land in dispute and again when the impugned order (Annexure 'B) was passed on 26th Aug. 1954. It is case of the petitioners that after the partition of the country. Mal Singh took possession of land in dispute. Mal Singh was in possession of the land in dispute when it was mutated in the name of the Central Government on 7th August, 1962 in pursuance of the order of the Competent Officer (Annexure 'B') Mal Singh did not agitate against the order (Annexure 'B') of the Competent Officer right till his death in Oct. 1969. It was after his death that the petitioners approached the custodian authorities for the redemption of the land in dispute, which was declined. They were, in fact, compelled to approach the custodian authorities for redemption of the land after Kirpal Singh took possession of a part of the land allotted to him on 23rd Dec. 1969. Having failed to get the land redeemed from the custodian authorities, the petitioners filed an appeal against the impugned order of the Competent Officer (Annexure 'B') which was dismissed by the Appellate Officer vide order dated 16th Oct. 1973(Annexure 'D') This appeal (or revision) was dismissed also on the ground that it was time-barred. The learned Appellate Officer has held that it was that Mal Singh had not come to know about the order passed against him by the Competent Officer so as to enable him to file a revision within a reasonable time. He further held that it was quite possible that Mal Singh did not want to pay the mortgage amount and thus did not appear to answer the notice issued to him. He may have thought that land was not worth so much as to get it redeemed on payment of Rs. 4,200/- . The impugned order of the Competent Officer was passed in Aug. 1954, whereas the appeal (or revision) was filed by the petitioners on 9th March, 1970. It was within the jurisdiction of the Appellate Officer to hold that the appeal (or revision) had not been filed within a reasonable time. The finding of the Appellate Officer on this point, which even otherwise appears to be correct, being one of fact, cannot be assailed in the writ proceedings. It is significant that in the appeal (or revision) it was averred by the petitioners that they learnt about the impugned order of the Competent Officer (Annexure 'B') on 26th Feb. 1970, when the Assistant Custodian dismissed their application for redemption of the land. This averment is patently wrong inasmuch as Jagjit Singh petitioner was present on 23rd Dec. 1969 when Kirpal Singh allottee was given possession of a part of the land in dispute, which had been allotted to him. The petitioners, therefore, cannot justifiably assail the order of the Appellate Officer (Annexure 'D') as well.

9. I the result, the writ fails and is dismissed with no order as to costs.

10. Petition dismissed.


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