R.S.A.No.4482 of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A.No.4482 of 2001
Date of Decision : 24.08.2009
State of Haryana ...Appellant
Versus
Mohmood Khan and others ...Respondents
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Kulvir Narwal, Addl. AG, Haryana,
for the appellant.
Ms. Bhupinder Kaur, Advocate,
for respondent Nos.1, 2, 3, 6 and 7.
HEMANT GUPTA, J. (ORAL)
The defendant is in second appeal aggrieved against the
judgment and decree passed by the learned first Appellate Court, whereby
suit for declaration that the plaintiffs have become owner of the suit land
by efflux of time was decreed.
The plaintiffs claimed themselves to be in possession as fourth
mortgagees, of the agricultural land measuring 25 Kanals and 17 Marlas.
The plaintiffs claimed that since mortgage has not been redeemed for
more than 100 years, therefore, the right of redemption stands
extinguished.
The learned trial Court dismissed the suit holding that in terms
of Section 9 of the Evacuee Interest (Separation) Act, 1951, the
R.S.A.No.4482 of 2001 2
mortgagee’s right stands extinguished. Therefore, the plaintiffs are not
entitled to the declaration sought for. The learned first Appellate Court
reversed the findings and held that the suit land was never declared as
evacuee property, therefore, there is no question regarding vesting of the
same in the Custodian Department and that the plaintiffs have acquired
ownership right in the suit land.
After hearing the learned counsel for the parties, I am of the
opinion that the following substantial questions of law would arise for
consideration of this Court :
(i)Whether the plaintiffs are entitled to declaration that the
plaintiffs are owners of suit land by efflux of time on account
of failure to redeem land within a period of 30 years from the
date of mortgage?
(ii)Whether any declaration by an competent officer is
necessary for extinguishment of rights of mortgagor under
Section 9(2) of the Evacuee Interest (Separation) Act, 1951?
The findings recorded that the plaintiffs have acquired
ownership rights on account of non-redemption of the mortgage land for
more than 30 years runs counter to the Full Bench judgment in Ram
Kishan and others Vs. Sheo Ram and others AIR 2008 Punjab &
Haryana 77, wherein it has been held that there is no period of
redemption of the usufructuary mortgage as the doctrine once a mortgage
always a mortgage is applicable. In view of the Full Bench decision, a
usufructuary mortgagee cannot claim declaration that he has acquired
ownership rights. First question of law is, thus, answered in favour of the
R.S.A.No.4482 of 2001 3
defendant-appellant.
Section 9 of the Evacuee Interest (Separation) Act, 1951, reads
as under :
“9. Certain relief in respect of mortgaged property of
evacuees. – (1) Notwithstanding anything to the contrary in any
law or contract or any decree or order of a civil court or other
authority, where the claim is made by a mortgagee, no
mortgaged property of an evacuee shall, subject to the
provisions of sub-section (2), be liable for the payment of
interest at a rate exceeding five per cent per annum simple on
the principal money advanced or deemed to have been
advanced.
(2) Where a mortgagee has taken possession on any terms
whatsoever of any agricultural land and is entitled to receive
profits accruing from the land and to appropriate the same,
every such mortgage shall be deemed to have been
extinguished on the expirty of the period mentioned in the
mortgage deed or twenty years, whichever is less, from the date
of the execution of the mortgage deed; and if the aforesaid
period has not expired and the mortgage debt has not been
extinguished, the competent officer shall determine the
mortgage debt due having regard to the proprotion which the
unexpired portion of that period bears to the total of that
period.”
In terms of Section 9 (2) of the Evacuee Interest (Separation)
Act, 1951, the declaration by a competent officer is not necessary. What
is required by the competent officer is to determine the mortgage debt if
the period of mortgage has not expired in having regard to the proportion
which the unexpired portion of that period bears to the total of that
period. By the said provision, the mortgage in respect of a evacuee
R.S.A.No.4482 of 2001 4
property stands extinguished by operation of law. Therefore, the
plaintiffs could not claim declaration of their title in the suit property,
which is an evacuee property.
Consequently, the present appeal is allowed. The judgment and
decree passed by the learned first Appellate Court is set aside and the suit
dismissed.
24.08.2009 (HEMANT GUPTA) Vimal JUDGE