Bhandari, C.J. - (1.) This appeal under Clause 10 of the Letters Patent raises the question whether the administrative authorities were justified in holding that mortgagee rights in a certain plot of land are evacuee property.
(2.) On 3-3-1947 one Rikhi Ram mortgaged a plot o land measuring 45 kanals with one Feroze-ud-Din for a sum of Rs. 3,750/-. Owing to the communal disturbances which broke out in the Punjab in the year 1947, the mortgagee fled to Pakistan the mortgagor resumed possession of the mortgaged property. A notice was later issued to the mortgagor to appear before the Assistant Custodian and show cause why the mortgagee rights created by him on 3-31947 should not be declared to be evacuee property. The mortgagor denied the mortgage, but when he was confronted with the registered deed of mortgage he was constrained to admit that he had created the mortgage. He stated, however, that he had repaid the money to the mortgagee on 5-51947 and had obtained a receipt in respect of the same. The Assistant Custodian came to the conclusion that payment had not been proved and that the receipt which was produced by the mortgagor was a forged document. He accordingly held that the mortgage was valid and subsisting and that the mortgagee rights in the land were evacuee property. The decision of the Assistant Custodian was upheld by the Additional Custodian and later by the Deputy Custodian-General.
(3.) The mortgagor who was dissatisfied with the order of the Deputy Custodian General, presented a petition under Art. 226 of the Constitution principally on the ground that it was not within the competence of the administrative department to determine questions of title. Three authorities were cited in support of this contention. In Pariteshah Sadashiv Firm v. Asst. Custodian of Evacuee Property, Amristar, AIR 1953 Punj 21, a Division Bench of this Court held that the Custodian has no power of deciding questions whether a debt is or is not barred by time or of ordering the recovery of such a debt. A similar view was taken in J. M. Messey v. Custodian, Evacuee Property, Punjab, Simla, 1955-57 Pun LR 59. In Custodian-General of Evacuee Property, New Delhi v. Harnam Singh, 956-58 Pun LR 490, a Division Bench of this Court held that the Custodian of Evacuee Property has no jurisdiction to assess damages for use and occupation of property and to recover them as arrears of land revenue under the provisions of S. 48 of the Administration of Evacuee Property Act. In view of these authorities the learned Single Judge allowed the petition and quashed the orders of the administrative authorities concerned. The Custodian of Evacuee Property is dissatisfied with this order and has come to this Court in appeal.;