R.L. Anand, J. - (1.) THIS regular second appeal has been filed by the Union of India and others and it has been directed against the judgment and decree dated 24th July, 1980 passed by the Court of Additional District Judge, Gurgaon who allowed the appeal of the plaintiff -respondent and set aside the judgment and decree dated 16th April, 1979 passed by the Trial Court and the suit of the plaintiffs for injunction restraining the defendants from auctioning the suit land except after deciding the matter afresh in accordance with law was decreed.
(2.) THE brief facts of the case are that Sarvshri Udey Singh and others alleged that they are in possession of the agricultural land detailed in para No. 1 of the plaint measuring 80 kanals 1 marla situated in the revenue estate of village Shikhpur Tehsil Ballabgarh, District Gurgaon, for the last more than 100 years as owners openly adversely and within the knowledge of the defendants Union of India and the Haryaina State. Out of the agricultural land detailed in para No. 1 of the plaint, the land comprising of Khewat No. 20, Khata Nos. 24 and 25 was in possession of the predecessors -in -interest of the plaintiffs and is in possession of the plaintiffs as mortgagees for the last more than hundred years. Now the defendants claim themselves to be the successors -in -interest of original mortgagors, therefore, they have been impleaded as defendants. The whereabouts of the original owners are not known to the plaintiffs and they have not been heard and seen by the plaintiffs, therefore, they are presumed to have died. The plaintiffs have acquired the right of ownership in the land detailed in para No. 1 of the plaint, including the land recorded as mortgagees by prescription. Defendants are openly threatening to dispossess the plaintiffs from the suit land illegally, without any right, title and interest. The defendants have now taken the steps to auction the land on 23rd December, 1977. This auction is illegal, unwarranted and unjust. The defendants were asked not to auction the land but to no effect.
(3.) NOTICE of the suit was given to the defendants who contested the suit and a preliminary objection was raised that the suit land being evacuee property, therefore, the Civil Court has no jurisdiction to try the suit; that the plaintiffs have no locus standi to file the suit; that the suit is not maintainable for want of notice under Sec. 80 Civil Procedure Code. On merits, it was pleaded that as per the jamabandi for the year 1902 -03, the land was mortgaged by Sayed Ali Sayed Hussain and Sayed Hussain sons of Haidar Ali in favour of Gopal (l/3rd share) Budha (2/3rd share) sons of Bakshi vide Mutation No. 231 entered on 30.8.1905 decided on 29.6.1907 for Rs.182.00. Later on, according to Jamabandi for the year 1906 -07 the area measuring 18 bighas was sold in favour of Budha and Gopili sons of Bakshi vide mutation No. 229, 230 and 232 by Gu -lan Abas, Agha Hussain and Fazal Hussain. The balance area measuring 5 bighas 18 biswas remained under the self cultivation of the owner Shri. Iftkhar Husain. Gopali and Budha sold their mortgagee rights vide mutation No. 23 entered on 12.3.1912 and decided on 24.4.1912 for Rs.182/ - as per Jamabandi for the year 1912 -13. The owner ship rights were sold vide mutation No. 24 dated 24.4.1912 in favour of Chandan Singh son of Bharat Singh and Kanshi Ram son of Amar (predecessors -in -interest of the plaintiffs). The same entries are repeated in the subsequent Jamabandis from 1916 -17 to 1962 -63. The above khewat was partitioned at the time of consolidation in the village in the year 1965 and evacuee owners were allotted 86 kanals 13 marlas of the land and the plaintiffs were shown as Gair Maurusi and mortgagees in respect of the land measuring 33 kanals 17 marlas and 52 kanals 16 marlas respectively. The land in dispute was owned by Mohammedans and after their migration to Pakistan, all their rights and interest stood vested in the Custodian under Sec. 4 of the East Punjab Evacuee Administration of Property Act, 1947. On account of to enforcement of Central Act No. 31 of 1950 the interest of evacuees which had Vested in the custodian under the Punjab Act No. 14 of 1947 automatically stood vested in the custodian of Evacuee Property under Sub -section (2) of the Sec. 8 of the said Act. It as further claimed that the land in dispute was composite property and as 20 years had already expired to mortgage automatically stood redeemed and extinguished by operation of law. The plaintiffs had left no right, title or interest in the property. The equity of redemption which originally vested in the Custodian became the full -fledged proprietorship by virtue of Sec. 9(2) of the Evacuee Interest (Separation) Act. 1951. It was further asserted that as the property in question vested was free from all encumbrances, therefore, they have full powers to dispose of the land in dispute in accordance with law. From the pleadings of the parties, the trial Court framed the following issues: - 1. Whether the plaintiffs and their predecessors -in -interest have been in possession of the land in dispute for the last more t ian hundred years as owners openly adversely and within the knowledge and notice of the defendants, as alleged? OPP 2. Whether the lands, comprising of Khata Nos.24 and 25 Khewat No. 20 is in possession of the plaintiffs and their predecessors in interest as mortgagees for the last more than hundred years? OPP 3. Whether the plaintiffs have acquired right of ownership in the suit land including the land recorded as mortgaged land by prescription and lapse of time as alleged? OPP 4. Whether the action of the defendants to auction the land in dispute is illegal as alleged? OPP 5. Whether the Civil Court has no jurisdiction to try the present suit as alleged? OPP 6. Whether the suit land vested in the Central Government? If so to what effect? OPP 7. Whether the suit is liable to be dismissed for want of notice under Sec. 80 CPC as alleged? OPD. 8. Whether the plaintiffs are being shown as Gair Maurusi in respect of the land measuring 33 Kanals 17 marlas after 1965 as alleged? If so to what effect? OPD. 9. Whether the mortgage stood extinguished on the expiry of 20 years and the Custodian evacuee property become owners of the land in dispute under Sec. 9(2) of the Evacuee Interest Separation Act, 1951? OPD. 10. Whether the plaintiffs have no right, title or interest in the suit land at alleged? OPD. 11. Relief. ;