- (1.) The facts giving rise to this second appeal are that the present appellants had filed a suit for declaration to the effect that they were full owners of the suit land measuring 4 kanals. According to the averments in the plaint, Nath Ram, father of the plaintiffs, had mortgaged with possession land measuring 5 kanals 12 marlas in lieu of which the suit land had been allotted in consolidation proceedings, in favour of one Chhaja Singh for Rs. 700/- by means of a registered mortgage-deed dated 10th June, 1919. Chhaja Singh sold his mortgagee rights to one Mohammadi for Rs. 600/- by means of a registered-deed dated 5th June, 1926 (Exhibit PW-3A). Mohammadi was succeeded by his grand sons Ata Mohammed and Fateh Mohammad as his legal heirs. The balance of the mortgage money i.e. Rs. 100/- was received by the first mortgages Chhaja Singh from Ata Mohammad and Fateh Mohammed vide receipt dated 13th June, 1943 (Exhibit P-2). Nath Ram redeemed the land on 2nd June, 1946 by paying Rs. 700/- to the second mortgagee (vide receipt Exhibit P-1) and took possession of the land. The second mortgagee left for Pakistan on the partition of the country. In consolidation proceeding the suit land was allotted to Nath Ram in lieu of the mortgaged land. After his death the plaintiffs inherited his property including the suit property. Since 2nd June, 1946, when the land was redeemed, Nath Ram and after his death the plaintiffs have been in possession of the suit land as owners. However, in revenue records the plaintiffs are recorded as mortgagors while Union of India and Chhaja Singh as mortgagees. According to the plaintiffs, the said entries are wrong, illegal and ineffective against their rights.
(2.) The suit was contested by the Union of India, State of Punjab and the Competent Officer, Punjab and Haryana, who were arrayed as defendant Nos. 1 and 3 respectively. According to them, the Civil Court had no jurisdiction to entertain the suit as the suit property was evacuee property. It was also pleaded that the suit and had not been redeemed by the mortgagor and thus it vested in the Custodian/Central Government free from all encumbrances.
(3.) Upon the allegations of the parties the learned trial court framed the following issues :- 1. Whether the civil Court has no jurisdiction to try this suit ? 2. Whether the plaintiffs' father got redeemed the property in suit and the plaintiffs are the owners in possession thereof. 3. Relief. 4. Under issue No. 1 it was held that civil court had no jurisdiction to entertain the suit in view of 46(a), Administration of Evacuee Property Act, 1950 (for short the Act). Under issue No. 2 it held that the plaintiffs story about redemption was not believable. Accordingly, he found that issue against the plaintiffs. As a result of the above findings, the plaintiffs, suit was dismissed. Feeling aggrieved, the plaintiffs filed an appeal which was heard by learned District Judge, Hoshiarpur. He confirmed the findings of the trial Court under issue No. 1. While discussing issue No. 2 he observed that the receipt Exhibit P-1 about redemption of the land was not admissible in evidence. He refrained from giving any finding under issue No. 2 and remarked that it would be open to the plaintiffs to prove the redemption of the mortgage before the custodian or the Competent Officer in appropriate proceedings. Accordingly, he dismissed the appeal. Still not feeling satisfied, the plaintiffs have now come to this Court in second appeal.;