- (1.) The writ petition is at the instance of persons who claim to be in possession of certain shops and they seek to assail the order passed by the District Judge who is the appellate authority under The Evacuee interest Separation Act, 1951. The appeal had been brought at the instance of the third respondent Dr. Rewa Ram who claimed that he was an assignee of mortgagee's interest and the property not having been redeemed within the period of limitation he had acquired title to the property. The "competent officer", as a Court of first instance had rejected the third respondent's claim and the said order had been reversed in appeal. The petitioners were cited as respondents before the District Judge since they had themselves independently sought the properties to be allotted by the "competent officer". Respondent Nos. 2 and 3 had also been cited as respondents by virtue of the fact that they had claimed in the proceedings before the Rent Controller initiated, by the third respondent that they were themselves the owners and consequently the third respondent had sought for an adjudication in their presence. The writ petitioners therefore seek for the relief that they are themselves owners entitled to the allotment and that the finding rendered in favour of the third respondent that he had become owner of the property was erroneous. Certain more facts are required to be stated for rendering the adjudication. The property comprised of two shops and they were originally held in ownership by one Noor Mohd. He had mortgaged the property to one Manmohan and Balkrishan and put the mortgagees in possession by document dated 18.2.1939. The mortgagees Manmohan and Balkrishan had transferred the mortgagee's interest to the third respondent Dr. Rewa Ram on 4.4.1952. The property however was not retained in possession by Dr. Rewa Ram but he had executed rent deeds in favour of the two persons who in turn were said to have executed the sub-leases. The leases and the sub-leases are matters for adjudication in independent proceedings and they are not necessary for consideration in this writ petition, although the writ petition has been brought for hearing along with the matters in civil revision against rent control proceedings.
(2.) The proceedings before the authorities under the Evacuee interest Separation Act of 1951 came about in view of the Rent Control proceedings where the Rent Controller had questioned the right of the third respondent as the landlord and allowed for the subtenants to contend that they were themselves the owners of the property. The application at the instance of the mortgagee third respondent was at a time when he faced obstruction to his claim as a landlord and therefore sought for the relief under the Act of 1951. Since the property which was admittedly originally held in ownership by a person who had migrated to Pakistan at the time of partition, it becomes essential also to examine the manner of legal derivation of title and the tenability of the respective contentions which were made by the petitioners and the respondents.
(3.) Learned counsel appearing on behalf of the petitioners would contend that the property which was held by Noor Mohd. On his migration to Pakistan, became an "evacuee property and held to be vested under Pepsu Ordinance No. 17 of 2000 BK and the property that was vested with the Custodian could not be claimed by the third respondent as belonging to him. His contention would be that by virtue of Section 8(2) of the Vesting of Administration of Evacuee Property Act that displaced the ordinance, the property stood vested in the State as evacuee property and by virtue of sub-Section (4), after evacuee property had vested in the custodian, any person who was in possession shall be deemed to hold on behalf of the custodian. If the petitioners themselves were to be seen as in the possession of the property their possession must be seen only under the Custodian and the impugned order finding the third respondent as having become the owner of the property by the mortgage not having been redeemed within the time prescribed by law, was erroneous.;