Harjit Kaur Vs. Assistant Custodian (General) and ors. - Court Judgment

J.S. Narang, J.

1. The facts which need to be noticed are that the plaintiff-appellant i.e. Smt. Harjit Kaur wife of Joginder Singh had filed a suit for possession of land measuring 28 kanals comprised in Killa No. 39/19.29.21.44/1/2 as per the description given in the jamabandi for the year 1975-76 situated at village Johal Dhaiwala, District Amritsar and also a suit for injunction restraining the defendant-respondents from auctioning the land described in the suit.

2. The history relating to the land also needs to be noticed, i.e., one Harcharan Singh son of Roor Singh of village Johal Dhaiwala was the owner of the land measuring 24 kanals comprised in Khasra Nos. 2516 and 2518 as described in the jamabandi for the year 1944-45 situated in the aforestated village. He mortgaged with possession the said land to one Ali Baksh son of Wali resident of village Jama-rai and that mortgage deed dated 25.5.1946 had been executed reflecting the mortgage money as Rs. 1200/-, the redeemable period had been described as six years. In the year 1947, upon partition of the country, the mortgagee, i.e., Ali Baksh migrated to Pakistan and that his mortgagee right came to vest in the Custodian Evacuee Properties, Punjab. Upon consolidation, in lieu of the land mortgaged, the land measuring 28 kanals, comprised in rectangle No. 39 Killa No. 9.20 and 21 and rectangle No. 44 killa No. 1/2 was allocated accordingly. The said land was sold by the owner to the plaintiff vide sale deed dated 23.5.1958 and that an amount of Rs. 1200/- was kept with the plaintiff as a trust money for discharge of the mortgage debt by way of payment to the mortgagee.

3. The plaintiff filed an application through her husband before the Assistant Custodian, Punjab for redemption of the suit land. The said application was rejected vide order dated 23.6.1977 on the ground that the plaintiff has lost the equity of redemption. The said order was challenged by way of revision before the competent authority and that too was dismissed with the observation that the claim of the plaintiff was barred by time. Yet, another such similar application was filed by the plaintiff before the competent authority for redemption of the land. This application was allowed vide order dated 20.2.1978 and the right of redemption was granted subject to depositing a sum of Rs. 1200/- on the date of the order. However, this order was challenged by one Bawa Singh son of Natha Singh by way of revision maintainable under the statute. The aforesaid order was set aside vide order dated 10.1.1979 and an observation had been made that the. order had been obtained by the plaintiff by concealing the facts of dismissal of the earlier order and that the amount of Rs. 1200/- deposited by the plaintiff was ordered to be refunded to her. This order has not been challenged by the plaintiff any further.

4. The suit has been contested by the official defendants and the private defendants by way of separate written statement filed by them respectively. In the first instance, an objection has been taken that the suit property being evacuee property, the Civil Court has no jurisdiction in view of the provisions contained under Sections 27 and 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 read with Section 46 of the Administration of Evacuee Property Act, 1950; the suit is bad on account of nonjoinder of the necessary and proper parties, i.e., Union of India and State of Punjab; the plea of res judicata has been set up on the premises that the remedy for claiming redemption of the land has already been exhausted by way of filing of an application before the Custodian, Punjab, Jalandhar and that the said application has been dismissed and yet the subsequent order obtained favourably by the plaintiff having been set aside by the revisional authority, which order has become final between the parties. Apart from the above, there are various other objections which have been taken and that the suit has been contested on merits as well. Upon the pleadings of the parties the issues had been framed and the parties have led oral as well as documentary evidence. Reference may be made pointedly to issue No. 4 which reads as under:

'xxxxx xxxxx xxxxx xxxxx

4) Whether the Civil Court has got no jurisdiction to adjudicate upon the matter in controversy as alleged in para No. 1 of the Preliminary Objections of the written statement? OPP.

xxxxx xxxxx xxxxx xxxxx.'

5. The trial court has given a categoric finding that the limitation for redemption of the property was yet to expire, only the mortgagee right could be acquired by the custodian and property as such never came to vest in the custodian and therefore, could not be called acquired evacuee property. The issue claimed by the defendants has been decided against them by the trial Court.

6. The Trial Court has also held that the order of the Assistant Custodian (General) is ineffective against the rights of the plaintiff to get back the possession of the suit land. As a sequel thereto, it has been held that the suit is not barred under the principle of res judicata. Thus, keeping in view the mortgagor rights, the suit has been decreed and the relief has been granted to the effect that the plaintiff shall retain the possession and if the possession is that of defendant No. 4 and 4-A, they shall deliver back the possession to the plaintiff. The judgment and decree dated 19.11.1980 had been challenged by the official defendants by filing an appeal before the lower Appellate Court. The moot point is as to whether the Civil Court has the jurisdiction in relation to the case in hand. The admitted facts are that the Assistant Custodian General had passed an order dated 20.2.1978 Ex.D-4 vide which the application for redemption had been allowed and the plaintiff had been directed to deposit the amount of Rs. 1200/- i.e., the mortgage money. This order was challenged before the Assistant Custodian General (exercising the power of Custodian General, Punjab Jalandhar), the revision filed by the official defendants was accepted vide order dated 10.1.1979 Ex.D-5 vide which the order of redemption has been set aside and the mortgaged money if deposited, was ordered to be refunded. This order was not challenged any further and that the present suit has been filed for possession by way of redemption but the relief of redemption has not been asked for in the prayer made before the trial Court nor the declaration has been asked for, for declaring order dated 10.1.1979 passed by the Assistant Custodian General (exercising powers of the Custodian General, Punjab). It is on these premises, the claim of the plaintiff-appellant has been considered by the lower Appellate Court. The question which came to be examined by the Appellate Court was as to whether the mortgagee rights in the suit were the composite property as defined under Section 2(d) of the Evacuee Interest (Separation) Act, 1951. It shall be apposite to notice the definition which reads as under:-

'Section 2(d) of the Interest (Separation) Act, 1951.

'Composite Property' means any property which or any property in which an interest has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950.'

It is necessary to understand the meaning of word 'claim' as well as 'plaint' defined in the aforesaid Act which read as under:

'A claim means the assertion by any person not being an evacuee of any right, title or interest in any property;-

i) as a co-sharer or partner of a evacuee in the property;

ii) as a mortgagee of the interest of an evacuee in the property.

iii) as a mortgagor having mortgaged the property or any interest therein in favour of an evacuee;

and include any other interest which such person may have jointly with an evacuee and which is notified in this behalf by the Central Government in the Official Gazette.'

iii) in which the interest of a person, not being an evacuee is subject to mortgage in any form in favour of an evacuee;

iv) in which an evacuee has such other interest jointly with any other person, not being an evacuee, as may be notified in this behalf by the Central Government in the official Gazette.'

7. In view of the aforestated, the lower Appellate Court has held that the mortgagee rights in the suit land were evacuee property and therefore, came and vested in the custodian. Thus for giving discharge of the mortgagee rights, the jurisdiction came and vested in the Custodian General under the Act. There is no doubt an application for redemption had been filed before the Assistant Custodian in the first instance which was dismissed and against the said order, the revision maintainable under the statute, was also dismissed. Somehow or the other without disclosing the fact of the previous application, the plaintiff filed a second application which was allowed and the redemption was granted subject to payment of Rs. 1200/- to the mortgagee. It is this order which had been challenged before the Custodian General and that the Assistant Custodian General (exercising the powers' of the Custodian General) accepted the revision vide order dated 10.1.1979 and set aside the order of redemption granted in favour of the plaintiff. It is also the admitted case that this order became final and has not been questioned before any forum.

8. If the aforestated observation of the lower Appellate Court is accepted, the judgment and decree of the lower Appellate Court would deserve to be maintained. However, the authority under proviso to Section 10 provides that where the claimant is a mortgagor and tenders the amount due, the competent officer shall accept the same in full satisfaction of the mortgage debt.

9. The Lower Appellate Court has categorically held that the remedy of the plaintiff-respondent was to approach the competent officer with a claim petition for redemption of the suit land by way of tendering the mortgage amount due thereto, whereupon the competent officer would have accepted the same in full and final satisfaction of the mortgage debt. Thus, the right of redemption qua the suit land lay before the competent officer in pursuant to the aforestated provision. However, such an application had been filed before the Assistant Custodian second time, which was allowed but the revision against the said order was accepted on the premise that earlier application had been dismissed by the said officer and that against the earlier order, the revision filed by the plaintiff-respondent was also dismissed but no further steps had been taken to take it to the logical conclusion finally.

10. Thus, the appellate Court has held that the instant suit has not been filed for pos session through redemption of the mortgage qua the suit land and that infact the suit for possession has been filed on the ground that Assistant Custodian vide order dated 20.2.1978 Ex.D-5 vide which the revision petition had been accepted and the order of the Assistant Custodian had been set aside is without jurisdiction, non-est, void etc. However, the provisions as contained under Section 10 and Section 20 of interest (Separation) Act, 1951 were not noticed. Thus, the remedy for the plaintiff lay some where else which unfortunately was not availed of. The appeal of the official defendant-respondents has been accepted vide judgment and decree dated 24.9.1983. The plaintiff-appellant being dissatisfied with the judgment of the lower Appellate Court has filed the pre sent appeal.

11. Learned counsel for the appellant has argued that the property had been mortgaged with possession in favour of Ali Baksh prior to 1947 for a period of six years and that the owner sold the property to the plaintiff had therefore, the right to redeem the property came and vested in the plaintiff. The suit for possession has been filed against the custodian virtually by way of redemption of the mortgage and that the plaintiff is ready and agreeable to pay the mortgage amount for redemption of the property.

12. On the other hand, learned A.A.G., Punjab has argued that the lower Appellate Court has correctly accepted the appeal of the department on the premises that the mortgage rights fell within the mischief of 'composite property' and that the plaintiff could seek the redemption by way of invoking jurisdiction under the Interest (Separation) Act, 1951. But every time concealing the facts, the remedy available has been lost by the plaintiff. In the first instance by filing the first application, remedy had been availed of but unfortunately, the said application was dismissed which was challenged by way of revision which has also been dismissed but no further remedy was availed of against the said order. However, the first application had been filed by the plaintiff through her husband whereas the second application was filed by herself which was allowed by the Assistant Custodian vide order dated 21.2.1978 which was questioned by the official respondent by way of revision before the Assistant Custodian General, which was accepted on the premises that the earlier application filed by the plaintiff had been dismissed and the order of dismissal had been maintained upto the revisional jurisdiction and that the earlier order had not been challenged and therefore, the second application was not maintainable. The second order passed on the revision dated 10.1.1979 has also not been questioned by the plaintiff. Thus, the appropriate remedy having not been availed of, the remedy by way of present civil suit was not available to the plaintiff and therefore, the lower Appellate Court has correctly allowed the appeal of the official respondents and that the judgment and decree of the trial Court has been correctly set aside.

13. After hearing learned counsel for the parties, I am of the view that it has been established beyond any doubt that the plaintiff-appellant did not come to the Court with clean hands as the first order vide which the revision filed by the plaintiff through her husband had not been challenged any further, the second application was not maintainable but upon the second application, favourable order was obtained by concealing the previous facts and the said order was challenged by way of revision by the official respondents and which has been accepted on the premises that in view of the earlier order, the second application was not maintainable. Admittedly, the remedy before the Court in view of the provisions, contained under the Act is not available to the plaintiff as the mortgagee rights fell within the ambit of the composite property as defined under the Act and therefore, the jurisdiction to avail the relief was somewhere else. No doubt, it is a hard case so far as the plaintiff-appellant is concerned but due to her own fault and the act of concealment led to the passage of the order passed by the lower Appellate Court. Even otherwise, the law stands settled by this Court so also by the apex Court that if any person comes to the court by concealing the true and correct facts, not only the remedy by way of interim relief is to be denied but the suit would also be dismissed. In the present case, the suit has been dismissed for want of jurisdiction of the Civil court coupled with concealment of the true and correct facts.

In view of the above, there is no merit in the appeal and the same is dismissed with no order as to costs.