HEMANT GUPTA, J. - (1.) THE plaintiff are in second appeal aggrieved against the judgment and decree passed by the Courts below whereby suit for possession of the land measuring 4K-2M situated in village Shergarh was dismissed.
(2.) IT is the case of the plaintiffs that they are the owners of the suit land and the adverse entries in the revenue record showing the plaintiffs as mortgagors and the Central Government as mortgagee, has no effect on their title. The land measuring 8K-10M bearing Khasra No. 750 (old) was mortgaged on 2.6.1892 by Narain Singh, Harnam Singh and Acchar Singh sons of Nihal Singh and Dalipa minor son of Thakur Singh adopted son of Harnam Singh, in favour of Prabh Dayal son of Chand Rai and Kanaiya Lal son of Shiv Dayal Bhambra, for a sum of Rs. 800/- through a registered mortgage deed. On 13.6.1899, the mortgage rights were sold to Mammoo and Kutba sons of Pira Jat, through a registered sale deed. The mutation of the said transfer of mortgage rights was sanctioned on 4.6.1900, but the land mortgaged was shown to be inclusive of shamlat share, though in fact no share in the shamlat was transferred. It is further pointed out that during the year 1899, the shamlat land was divided in the village amongst the land holders and the Kura No. 52 was allotted to the mortgagees in view of the entries in the revenue record. Khasra No. 1/16 came into existence in lieu of the old number which was reflected as mortgaged. On an application filed by Dalip Singh, predecessor-in-interest of the plaintiffs, the Collector, Hoshiarpur passed an order of redemption on 3.8.1943 on payment of Rs. 4418/- in terms of the provisions of The Punjab Restitution of Mortgaged Lands Act, 1938. It is further the case of the plaintiffs that on payment of said mortgage amount, the possession was taken by Dalip Singh on 15.10.1943. The plaintiff, as grand-son of Dalip Singh, entered into possession of the property in dispute. But due to mistake of the Patwari, the property was not mutated in the name of the Mortgagor, but continued to be in the name of the Muslim Mortgagees. In view of the said mistake in the revenue record, the property was declared evacuee property. It was also pointed out that the said property has been allotted to defendant Nos. 2 to 4 by Custodian being evacuee property. Such allotment is illegal, void and unauthorized as the same could not have been declared as evacuee property as the land was redeemed in the year 1943, much prior to partition of the country.
(3.) BOTH the Courts below have dismissed the suit. The learned First Appellate Court has found that though the order of restitution has been passed by the Collector on 3.8.1943, Exhibit P-14, but the same was never acted upon by making the necessary payment of Rs. 4418/-. It was held that there is no evidence on record that the payment was made and the land was redeemed. The learned First Appellate Court has also held that Mohammedans were shown as mortgagees of the property in dispute and they continued to be so shown in the revenue record for the period of about 50 years before they left the country after partition and no efforts were made by the plaintiffs to get rectification of the entries made wherein the Mohammedans were shown as mortgagees wrongly. The possession of the mortgagees shown in the revenue record for a period of more than 12 years ripened in law into ownership. Thus, the learned First Appellate Court affirmed the findings of the learned trial Court that the land in dispute actually stood mortgaged and the mortgage was never redeemed and the entries regarding the mortgage cannot be said to be incorrect. The learned First Appellate Court further returned a finding that the Civil Court cannot entertain any suit or adjudicate upon any question whether a particular property or right to or interest therein is or is not evacuee property.;