SARJOO PROSAD, C. J. - (1.) THIS is an application under Art. 226 of the Constitution. The petitioner Mohammed Ramzan prays for an appropriate writ declaring the order of the Assistant Custodian, Jaipur, dated 7th January, 1958, illegal and prohibiting him from taking possession of the disputed piece of land.
(2.) THE relevant facts are brief. One Wali Mohammed; S/o Karim Baksh, residing at Jaipur, was a cosharer in house No. 8/1120, situate in Munshi Jailal-ka-Rasta, Jaipur. He also owned a piece of open land situate in another quarter of the Town under specific boundaries as given in the petition. Wali Mohammed died at Jaipur on 10th of August, 1940, leaving behind four sons, Abdulrahman, Habibulrahman, Takiur Rahman and Ataulrahman. THE said sons of Walimohammed deceased mortgaged the aforesaid pieces of land with the petitioner under a registered mortgage deed dated 2nd August, 1945, for a sum of Rs. 1,000 THE mortgage was, according to the petitioner, a mortgage by conditional sale, under the terms whereof if the mortgage money was not paid within two years, the mortgagors would not be entitled to redeem. THE petitioner accordingly obtained possession of the land and was also at liberty to build a house thereon. Admittedly the mortgage has not been redeemed and the petitioner continues to be in possession of the land. Some years thereafter, it appears that Habibulrahman migrated to Pakistan and his property was declared evacuee property on 1st March, 1950. The other co-sharers in the house, including the remaining three sons of Walimohammed namely, Abdulrahman, Takiur Rahman and Atualrahman, appeared before the Assistant Custodian on 4th August, 1951, and admitted the fact of migration of Habibulrahman and some of the other cosharers in the house to Pakistan, i After some time the other three brothers of Habibulrahman also left for Pakistan, when fresh proceedings under the Administration of Evacuee Property Act, 1950 (Act No. XXXI of 1950, hereinafter called the Act), were initiated. Notices were issued under sec. 7 of the Act on 22nd May, 1953, and by an order dated 25th June, 1953, passed by the Additional Deputy Custodian, their shares in the house were also declared evacuee property on the admission of the other cosharers. The Deputy Custodian held the share of Habibulrahman in the house to have vested in the Custodian since 3rd October, 1949, and that of his other three brothers with effect from 4th June, 1950. It is not clear from the above order of the Deputy Custodian as to when Habibulrahman actually migrated, since the officer was merely content to remark that Habibulrahman left India much earlier. It may be persumably long before 30th October, 1949, when his share was separated from that of his other cosharers in the house. The case; of the petitioner is that there were no regular proceedings regarding the disputed plot mortgaged by the sons of Walimohammed to the petitioner in order to declare the same evacuee property and no notice under sec. 7 of the Act was ever issued in respect of the land. Nevertheless the Assistant Custodian, Jaipur, demanded possession of the plot in question from the petitioner, by issuing a notice to him under sec. 8 of the Act on 3rd Dec, 1957. The petitioner objected to the demand; but the Managing Officer cum Assistant Custodian by his order dated 7th January, 1955, which is assailed in this petition has rejected his claim. He has accordingly moved this Court for quashing the said order as illegal and without jurisdiction and as an unlawful attempt to interfere with the title and possession of the petitioner in the disputed land. The grounds on which the order is challenged are substantially these: (1) That there was no notice issued or served on the petitioner in respect of the disputed land under sec. 7 of the Act; (2) That in the absence of any such notice the land did nos vest in the Custodian who had, therefore, no authority under sec. 8 of the Act to demand possession from the petitioner; { (3) That by virtue of the Amending Act 42 of 1954, no further notice under sec. 7 of the Act could be issued in respect of the property so as to declare it an evacuee property; (4) That the possession of the petitioner over the plots in question was not unauthorised but that of a mortgagee under a lawful mortgage executed prior to 1947; and (5) That since the mortgage had not been redeemed the petitioner had acquired an indefeasible right in the property as full owner thereof. In the reply filed by the Deputy Custodian, which is supported by an affidavit; it is stated that the proper legal procedure had been adopted in respect of all the properties of the evacuee and notices under sec. 7 of the Act were duly issued in compliance with the law; as such the evacuee properties including the disputed land have in due course vested in the Custodian, who is entitled to take possession of the same. The Custodian has however, admitted that the petitioner is in possession of the plot as a mortgagee, but he disputes the claim of the petitioner that owing to the failure to redeem the mortgage within the due date, the petitioner has acquired an indefeasible title to the same, without obtaining a decree for foreclosure. The simple point which arises for consideration is whether the order of the Custodian purporting to be under sec. 8 of the Act demanding possession of the disputed plot from the petitioner is manifestly illegal and without jurisdiction. If the order is without jurisdiction this Court can interfere, otherwise it is open to the petitioner to seek his remedies in departmental proceedings under the Act. This again depends upon the answer to the question whether the property has actually vested in the custodian; and, if so, what is the nature of the interest which has so vested. To determine the point it is to be seen whether the case before us is governed by the provisions of the Act or by some earlier statute or orders on the point. The Act came into operation on 17th April, 1950. From time to time there were various amendments to the Act with which we are not concerned at present. Prior to the Act there were different territorial legislations governing the property of evacuees In Rajasthan, we had the Rajasthan (Administration of Evacuee Property) Ordinance, 1949 (Ordinance No. XIV of 1949 - hereinafter called the Rajasthan Ordinance), which was promulgated by the Rajpra-mukh on the 20th of July, 1949. The Rajasthan Ordinance applied to the territories of Raj. , including Jaipur. Under sec. 5 of the Ordinance and subject to the provisions thereof, all evacuee property situate in Rajasthan automatically vested in the Custodian as soon as a person became an evacuee. "evacuee property" is defined in that Ordinance as to mean, inter alia any property in which an evacuee had any right or interest or which was held by him under any deed or trust or other instrument. Sub-sec. (2) of sec. 5 of the Ordinance further provides that - "where, immediately before the commencement of this Ordinance, any evacuee property in Rajasthan had vested in any person exercising the powers of Custodian under any corresponding law in force in Rajasthan immediately before such commencement, the evacuee property shall, on the commencement of this Ordinance, be de emed to have vested in the Custodian appointed under this Ordinance. " Section 6 of the Ordinance empowered the Custodian to notify from time to time, either by publication in the Rajasthan Gazette, or in such other manner as may be prescribed, evacuee properties which had vested in him; and it further provided that after vesting of any evacuee property in the Custodian if any person was in possession of any such property, he should be deemed to be holding it on behalf of the Custodian and should on demand surrender possession of it to the Custodian or any person duly authorised by him in this behalf. Under sec. 7 of the Rajasthan Ordinance if any person in possession of any evacuee property refused to deliver possesion or failed on demand to surrender possession thereof, the Custodian could take possession of the property even if necessary by using reasonable force for that purpose. He could also under sec. 8 entertain claims of persons who were interested in the property notified as evacuee property and in respect of which a demand for surrender of possession had been made this Ordinance was apparently short-lived, because it was followed immediately by the Central Ordinance, called the Administration of Evacuee Property Ordinance, 1949 (No. XXVI 1949), which came into force on the 18th October, 1949, repealing the other Provincial and territorial Ordinances. It extended to all the Provinces of India, except Assam and West-Bengal, and also to every acceding State to the extent to which the Dominion Legislature had power to make laws for that State with respect to matters dealt with in the Ordinance. The terms of the Central Ordinance are almost identical with the terms of the Act and sec. 7 and 8 of the Central Ordinance and the Act are similarly, with small variations, identical in terms. Sec. 4 of the Central Ordinance had the effect of repealing the previous laws on the point. At the same time it made a saving under section 8 (2) in respect of properties which as evacuee properties had already vested in the Custodian. The language of sec. 8 (2) of the Central Ordinance is analogous to sec. 5 (3) of the Rajasthan Ordinance. The section is as follows - "where immediately before the commencement of this Ordinance any evacuee property in a Province had vested in any person exercising powers of a Custodian under any law repealed hereby, the evacuee property shall, on the com mencement of this Ordinance, be deemed to have vested in the Custodian appointed or deemed to have been appointed for the Province under this Ordinance and shall continue to so vest. " The effect is that the property already vested in the Custodian continued to vest by virtue of the above provision under the Central Ordinance also and this continuity was preserved under the Act as well. Sec. 8 (2) of the Act is substantially similar. Therefore, if any property had vested in the Custodian under earlier Ordinances, the vesting would not be affected or defeated by the operation of the Act. The contention of the learned counsel for the petitioner was based entirely upon the provisions of the Act; but it is obvious that the provisions of the Act would not cover the interest of Habib. It is not clear from the record as to when Habibulrahman actually migrated, but it appears to be well established that he migrated some time before the 30th October, 1949, long before the Act came into force. We find from the order of the Additional Custodian dated 25th June, 1953 (Exj. B), that he had migrated very much earlier. He was declared an evacuee and his 1/33 share in the house an evacuee property even as early as on the 1st March, 1950, The Act, therefore, had no application to his property which had already vested in the Custodian. We are also doubtful whether the Central Ordinance which came into operation on the 18th of October, 1949, applied to him, because we find from the order of the Additional Deputy Custodian dated 3rd May, 1954, that a separate rent was assigned in respect of the 1/33 share of Habibulrahman with effect from 30th October, 1949. There appears to be little doubt, therefore, that Habibulrahman who is admittedly an evacuee must have left for Pakistan very much earlier ; and his case, in our opinion would be governed by the Rajasthan Ordinance as contended by the learned advocate for the respondent. Thus the property of Habibulrahman the evacuee vested in the Custodian automatically as soon as Habibulrahman left for Pakistan by operation of sec. 5 of the Rajasthan Ordinance. See Aminunnissa vs. The Deputy Custodian, Evacuee Properties, District Deoria, Blue Print of the Supreme Court decision dated 26th October, 1960, in Writ Petition No 56 of 1958 ). Even if it be assumed that Habibulrahman and his brothers migrated some time after the Central Ordinance or the Act came into force we have no reason to hold that there was lack of due compliance with the provisions of Sec. 7 of those laws. The reply of the Deputy Custodian is that notices issued under sec. 7 were issued in respect of all the properties of the evacuee and not only in respect of the house property and served on parties interested. This is borne out by the proceedings also in which some of the parties appeared and had their say. We think, however, that the application must succeed on a shorter ground. Admittedly the petitioner is in possession of the disputed plot of land in his own rights as a mortgagee. He is not in unauthorised possession of the land on behalf of the evacuee or for the matter of that on behalf of the Custodian. All that has vested in the Custodian or can be deemed to have vested is the right of redemption of the mortgagors, which* is the only interest of the property, if at all. The Custodian cannot claim any higher rights than the evacuee had in the property in question. It is not disputed that the mortgage has not yet been redeemed and if the right of redemption is alive the petitioner cannot be dispossessed until the mortgage dues have been paid, either as a result of a suit for redemption or for foreclosure, as the case may be. The order of the Assistant Custodian, therefore, demanding possession without redeeming the mortgage is clearly illegal and unwarranted and has to be quashed. The petitioner may be justified in apprehending that the said order, if not quashed, may be sought to be utilised as a bar under sec. 46 of any suit for foreclosure that may be instituted at a subsequent stage. We accordingly allow this application, set aside the above order of the Assistant Custodian demanding possession and prevent the respondent from taking possession of the disputed land, accept as a result of a suit for redemption or foreclosure. Parties will bear their own costs of this application. . ;