- (1.) The plaintiff, who had lost the suit at the trial Court and the appellate Court, is the appellant before this Court. The claim of the plaintiff was on the ground that the property had been purchased by the plaintiff's predecessor on 07.03.1931 from one Girdhari Lal, who in turn held a mortgagee's interest from Sandha. Sandha was a 'evacuee', who had fled to Pakistan without redeeming the mortgage. The plaintiff claimed that in consolidation proceedings, the property in Killa Nos.7/2 and 10/2 had been allotted in lieu of the property originally mortgaged. Under the Evacuee Interest (Separation) Act, 1951 (in short, 'the 1951 Act'), the competent officer effected the sale of the property in favour of the plaintiff Amar Chand on 13.08.1969 but a portion of the property demarcated by ABCDEF in the plan comprising of an extent of 2 kanals and 9 marlas was claimed by the plaintiff to have been encroached by the defendants. The suit had been filed for declaration and for recovery of possession. The defendants took a plea that the property could not have been validly transferred by the competent officer under the 1951 Act, since the property had become vested with the Custodian General under the Displaced Persons (Compensation and Rehabilitation) Act of 1954 and sold to Bhagwan Dass. The defendants claimed the property under Bhagwan Dass.
(2.) The suit had been originally dismissed finding that the plaintiff has not established his right, but when the plaintiff had preferred an appeal, the defendant had filed a written statement denying the jurisdiction of the Civil Court to entertain the suit and adjudicate on the validity of the sale made by the competent officer under the 1951 Act. On remand, the trial Court held that the plaintiff had not established the identity of the property claimed by him as a property which the defendants were laying a claim to and further held that the property sold by the Custodian to Bhagwan Dass was described as B-1/168 and not shown to be the property purchased by the plaintiff from the competent officer. The trial Court however rejected the contention of the defendants that the Civil Court was not competent to decide the issue of title.
(3.) The appellate Court found that in terms of Section 9(2) of the 1951 Act, the mortgage had been extinguished on the expiry of 20 years or the period mentioned in the mortgage for redeeming the same. He held that if the mortgagor had not been extinguished, the competent officer would determine the mortgage debt due, having regard to the proportion which the unexpired portion of the period bore to the total period and it became clear that on the expiry of 20 years' period when the usufructuary mortgage was created, the property became vested in the Custodian free from encumbrances and it was not a composite property any more. Taking note of the fact that the mortgagee's interest had been transferred to the plaintiff's predecessor on 07.03.1931, on the coming into force of the Act of 1951 on 31.10.1951, 20 years had already expired and, therefore, the sale by the Custodian in favour of Bhagwan Dass must be taken to be a valid one. About the identity of the property which was held against the plaintiff by the trial Court, the appellate Court held that the sale in favour of the plaintiff was itself challenged by the defendants before the competent officer and, therefore, there could never have been a doubt that the defendants were actually claiming the very same property which was sought to be sold again by the competent officer under the 1951 Act. However, he held that the very same property had been already sold in favour of Bhagwan Dass in the year 1959-60 and, therefore, the sale of the very same property by the competent officer under the 1951 Act cannot give any valid title to the plaintiff.;