1. This is a plaintiffs' appeal arising out of a suit for declaration in which they claim that the order dated 6th May, 1958, passed by the Competent Officer is wrong, illegal and void inasmuch as he had no jurisdiction to adjudicate when before the coming into force of the Evacuee Interest (Separation) Act, 1951, described hereinafter as the Act, they had become owners by lapse of time.
2. Facts which led to the controversy may be stated in a narrow compass.
3. The suit land measuring 2 Bighas, b Biswas was mortgaged by Hasana and others in favour of Chet Ram son of Mohan. There is no written deed but the revenue records show that the land was mortgaged on 3rd July, 1890. The except, Exhibit P.W. 1/1, indicates that Budhan, Sardara Chat and Chhotu were the successors-in-interest of the original mortgagors. They were shown as mortgagors in the Jamabandi for the year 1940-41. Two mutations Nos. 102 and 103 are said to have been sanctioned on 30th July, 1941, whereby Budhan, one of the mortgagors, got his 5/8th share in the mortgaged land redeemed from Khazru mortgagee on payment of Rs.41/4/- and purchased mortgagee rights in respect of the remaining 3/8th share. Budhan then mortgaged the redeemed share with Bhag Mal for Rs.51/4/- and also sold the mortgagee rights for Rs.24/4/-. Again on 5th December, 1942, there were two transactions between Budhan and Bhag Mal as a result whereof the former got redeemed the land mortgaged with the latter and also purchased back the mortgagee rights in regard to the 3/8th share. The result is that the position on 5th December, 1942, was the same as on 30th July, 1941, when Budhan had redeemed his 5/8th share from Khazru and purchased mortgagee rights to the extent of the remaining 3/8th share. Budhan, Sardara Chat and Chhotu mortgagors later migrated to Pakistan on partition of the country in the year 1947. Since the plaintiffs who are successors-in-interest of the original mortgagees continued in India, the Competent Officer, Gurgaon, treated the property to be a composite one as defined in the Act. In the claim made before him by the mortgagees (now plaintiffs), it was stated that the mortgage was not redeemed for sixty years and, they had, therefore, become owners of the property by prescription. It appears that when the case was heard by the competent Officer, none appeared on their behalf, nor was the Custodian represented. The competent Officer in a very brief order and relying on some decisions of the Appellate Officer, the references to which are not stated in his order, declared the mortgage to have extinguished on the ground that the same was over twenty years old. The property was consequently directed to vest in the Custodian free from all encumbrances and liabilities. It is this order which led to the present suit.
4. The Union of India and the Custodian Evacuee Property, Punjab, Jullunder, were impleaded as defendants and so was Din Mohammad minor who was alleged to be one of the mortgagors. On the pleadings of the parties, the following issues were framed:--
1. Whether this Court has got no jurisdiction to try the suit?
2. Whether the plaintiffs have served the defendants with a valid notice under Section 80, C.P.C.?
3. Whether the plaintiffs have become owners by prescription?
5. The trial Court held under Issue No. 1 that the Civil Court had jurisdiction. Issue No. 2 was decided in favour of the plaintiffs and so was Issue No. 3. In the result, the suit was decreed inasmuch as the plaintiffs were declared to have become owners of 3/8th share of the suit land as referred to in para 1 of the plaint. The consequential relief granted was that the defendants were restrained from interfering with the possession of the plaintiffs.
6. Two appeals one by Din Mohammad and the other by the Union of India were preferred before the Senior Subordinate Judge, Gurgaon, with enhanced appellate powers. He accepted both of them and dismissed the suit of the plaintiffs, who have now come to this Court in second appeal.
7. The only matter to be considered is as to the effect of the two transactions of redemption and purchase of mortgagee rights as appearing from mutations Nos. 102 and 103 of 30th July, 1941. What happened is that Budhan got redeemed his 5/8th share and purchased mortgagee rights in respect of the remaining 3/8th of the mortgaged property. The Court of first appeal observed that doctrine of subrogation as contained in Section 92, Transfer of Property Act, does not apply to Punjab though its principles do apply as rules of equity, justice and good conscience. It took the view that the present case was not covered by the said doctrine and Budhan could not, therefore, claim and hold any mortgagee rights. Mr. Seth learned counsel for the appellants contends that the Court made an erroneous approach in invoking this doctrine or its principles. He concedes that the question of subrogation does not arise in this case in as much as Budhan did not redeem the whole of mortgaged property but his own share only. The argument is that Budhan purchased mortgagee rights in respect of the remaining 3/8th of the mortgaged property as referred to in mutation No. 103 and he could become mortgagee by purchase as well. Entries in settlement for the year 1940-41 as appearing in the excerpt Exhibit P.W. 1/1 leave no room for doubt about the factual position stated by Mr. Seth. It is true that the question of subrogation arises only when any of the persons referred to in Section 91, Transfer of Property Act, or a co-mortgagor redeems the whole of the mortgaged property and that it is on such redemption alone that the co-mortgagor steps into the shoes of the mortgagee and holds mortgagee rights qua other persons entitled to redeem. This, however, does not mean that if a mortgagor has been permitted to redeem his own share and he purchases mortgagee rights in respect of the remaining property, he cannot in spite of purchase acquire the status of a mortgagee and hold the mortgagee rights. The law permits mortgagee rights to be acquired both by subrogation if the conditions stated in Section 92 are satisfied and also by purchase. The trial Court in my opinion took the correct view in holding that Budhan was the mortgagee of 3/8th share in the year 1941 by purchase and that since 60 years had expired by then from the date of the original mortgage it was not open to the successors-in-interest of the mortgagors to redeem that property. In this view of the matter the competent Officer had no jurisdiction to deal with the property which had ceased to be a composite one.
8. For the foregoing reasons the appeal is allowed; the judgment and decree of the first appellate Court are set aside and decree of the trial Court decreeing the suit of the plaintiffs restored. In the peculiar circumstances of the case there will be no order as to costs.
9. Appeal allowed.