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Custodian, Evacuee Property, Punjab and ors. Vs. Parbhu Dayal Chhajan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1119 of 1958
Judge
Reported inAIR1960P& H298
ActsPunjab Redemption of Mortgages Act, 1913 - Sections 12; Indian Limitation Act - Schedule - Article 148; Limitation Act - Sections 5 and 12; Evacuee Property Act, 1950 - Sections 46
AppellantCustodian, Evacuee Property, Punjab and ors.
RespondentParbhu Dayal Chhajan Lal and ors.
Cases Referred and Parkash Chand v. Custodian Evacuee Property
Excerpt:
.....authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge..........and an appeal against it was rejected by the learned additional district judge. the custodian of evacuee property has come to this court in second appeal. (2) mr. s. l. puri, learned counsel for the respondents, has raised a number of preliminary objection. his first objection is that the trial court's judgment was not filed when the appeal was filed on the last day of limitation, i.e., the 22nd of october, 1958, and that the judgment of the trial court was filed on the 30th of october, 1958. an application for obtaining its copy was made on the 29th of october, 1958. mr. chetan dass, learned counsel for the appellant, admits that if the delay in filing the copy of the judgment of the trial court is not condoned, the appeal would be barred by time. he, however, prays that the delay in.....
Judgment:

(1) The mortgage in dispute was effect in the year 1863. The present appellant is one of the successors-in-interest of the original mortgagor and the present respondents are the successors-in-interest of the original mortgagees. The mortgagor made an application under the Redemption of Mortgages Act (Punjab Act, II of 1913) for redemption of the mortgage in theyer 1925 to the Collector. The Collector allowed the application and the mortgagor entered into possession of the mortgaged property. The mortgagees sued for possession under S. 12 of the Act and got a decree for possession and consequently got back the possession of the mortgaged property and since then are in possession as mortgagees.

On the 5th of October, 1955, the present suit was filed by Prabh Dyal and Smt. Sampti, who are successors-in-interest of the mortgagees, for a declaration that they have become owners of the said land by reason of the expiry of the period of limitation fixed for redemption under Art. 148 of the Indian Limitation Act. This plea prevailed with both the Courts below with the result that the trial Court decreed the suit and an appeal against it was rejected by the learned Additional District Judge. The Custodian of Evacuee Property has come to this Court in second appeal.

(2) Mr. S. L. Puri, learned counsel for the respondents, has raised a number of preliminary objection. His first objection is that the trial Court's judgment was not filed when the appeal was filed on the last day of limitation, i.e., the 22nd of October, 1958, and that the judgment of the trial Court was filed on the 30th of October, 1958. An application for obtaining its copy was made on the 29th of October, 1958. Mr. Chetan Dass, learned counsel for the appellant, admits that if the delay in filing the copy of the judgment of the trial Court is not condoned, the appeal would be barred by time.

He, however, prays that the delay in filing the same may be condoned. In my view no case has been made out for the exercise of discretion under section 5 of the Limitation Act in his favour. There is no explanation why an application was not made to obtain the copy of the judgment within the period of limitation for filling an appeal. The application for the copy was filed after the period of limitation had expired. In such circumstances the time spent in obtaining the copy of the judgment of the trial Court cannot be said to be time requisite within the meaning of the expression in Section 12 of the Limitation Act.

Moreover it was filed a week after the date of the expiry of the period of limitation including the time spent in obtaining the copy of the judgment of the lower appellate Court. Thus it cannot be said that it is a fit case where any indulgence can be shown to the appellant, either under section 5 of the Limitation Act or in the matter of dispensing with the filing of the copy of the trial Court's judgment. It was held in Molu Mal v. Sri Ram, AIR 1921 Lah 73 that

'according to the rules of the Lahore High Court (the rules of this Court are the same) in the case of second appeals the memorandum of appeal shall, in addition to the copies specified in Order XLI, rule 1, be accompanied by a copy of the judgment of the Court of first instance. Where such copy is not produced within time, the presentation is not valid'.

To similar effect are the decisions Naul v. Mula AIR 1926 Lah 626 and Mathra v. Ram Singh, AIR 1927 Lah 747. I am in respectful agreement with the authorities mentioned above. On this short ground the appeal would fail.

(3) The other preliminary objection of Mr. Puri is that the trial Court's judgment is not stamped and it cannot be deemed to have been filed at all. It cannot now be allowed to be stamped as the period of limitation for filing the appeal has expired. He relies on the observations of Scott-Smith J. in Shahadat v. Hukam Singh, AIR 1924 Lah 401 which are as under:

'In my opinion it is the duty of the counsel when filing an appeal to see that all the documents requiring stamp are properly stamped. He cannot shelter himself behind his clerk, and if his clerk has been guilty of any carelessness, he is responsible for that. A valuable right has accrued to the respondent by reason of the period of limitation for filing the appeal having elapsed, and I do not think it would be fair to him to admit this appeal'.

To the same effect is the decision reported as Mohammad Fazal Elahi v. Ram Lal, AIR 1935 Lah 124 (2). I am in respectful agreement with the view expressed in the decisions referred to above and would accordingly uphold this preliminary objection as well.

(4) In view of my decision on the two preliminary objection, it is unnecessary to discuss the other preliminary objections raised by Mr. Puri, namely that the appeal has been filed without a power-of-attorney and that Smt. Sampti died a year ago and her legal representatives have not been brought on record within limitation and therefore the appeal has abated.

(5) On the merits Mr. Chetan Dass contended that it is within the competence of he Custodian to decide whether the mortgage is barred by time or not and he relied on section 46 of the Administration of Evacuee Property Act (No. 31 of 1950) in this behalf. Section 46 of the Act is in these terms:--

'Save as otherwise expressly provided int his Act, no civil or revenue Court shall have jurisdiction.

(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or

(b) ...... ...... ; or

(c) to question the legality of any action taken by the Custodian under this Act; or

(d) in respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine'.

This section no doubt confers absolute jurisdiction on the Custodian to decide whether certain property is evacuee property or not and whether certain persons are evacuees or not. No power is conferred on the Custodian under the Act to decide whether the property is under a mortgage or not or that the suit for redemption respecting the mortgage is within time or is barred by time. It is a fundamental principle of law that the jurisdiction of the especial tribunals must be found within the four corners of the Act or the Charter constituting them.

Unless the Custodian has the power to determine the matter in dispute, namely, whether the mortgagees have become owners of the property after the expiry of 60 years, it will fall for determination by the ordinary civil Courts of the realm. Moreover, the question, whether the suit for redemption is barred by time or not is a question between the Custodian on the one hand and the mortgagees on the other, and unless the power is give tot he Custodian specifically under the Act to decide this matter, he cannot be a judge in his own cause, for the Custodian here would be like any other party to litigation.

(6) Faced with this situation Mr. Chetan Dass stated that in view of the authorities reported as Gurparshad v. Assistant Custodian-General of Evacuee Property, AIR 1959 Punj 230 and Parkash Chand v. Custodian Evacuee Property, Jullundur, AIR 1959 Punj 64 of this Court, which are binding on me sitting in Single Bench, the civil Court had no jurisdiction to decide the suit. I have gone through these authorities and they have no applicability whatever to the facts of the present case.

All that has been held in both these decisions is that it is the Custodian alone who can decide if a person is an evacuee and whether a particular property is evacuee property. I have already said that this is so. But then none of these cases goes on to lay that it within the competence of the Custodian in a dispute where he is arrayed like any other party to a litigation to be a judge in his own cause or to decide the question of adverse possession or limitation. As a matter of fact in Gurparshad's case, AIR 1959 Punj 230 it was observed-

'It may be that civil Courts are not debarred from deciding some of these questions if properly raised in those Courts'.

(7) For the reasons given above, this appeal fails and is dismissed with costs.

(8) Appeal dismissed.


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