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Regular Second Appeal No. 38 of 1970, decided on 13th February, 1982.

S. 4(3)-Devolution of evacuee interest-Suit land originally belonging to a Muslim mortgaged to non-Muslims and such non -Muslims sub-mortgaging same to predecessor-in-interest of appellants- Suit by appellants for declaration of suit land having become their property for reason of having been under mortgage for over sixty years-Land having become evacuee 'land, right, title and interest of evacuees vested wholly in Central Government-Suit land having been under mortgage with appellants as sub-mortgagees, Government could not be said to have already had notice of such fact Appellants' case not being that after migration of non-Muslim evacuees they as sub-mortgagees attorned to Government to be first mortgagees of land and Government though aware of such fact yet took no steps to assert title of ownership to suit land by prescription or to create further charge thereon -Appellants, in absence of any such thing on record, held, deemed to be charge-holders on suit land and could only claim mortgage amount from Government.-[Mortgage].

Khuda Bakhsh Khan for Appellant No. 1.

Hamesh Gul Khan for Respondents.

Date of hearing : 13th February, 1982.

In this case, the suit land originally belonged to Saudad. He mortgaged it to Don-Muslims, namely, Sher Diyal and Dunni Chand (the predecessors of defendants 8 to 11), vide Mutation No. 162, attested on 9-6-1892. Sher Diyal and Dunni Chand on their part sub-mortgaged the suit land to Muhammad Jan (the predecessor of the appellants herein), vide Mutation No. 2897, attested on 1-8-1903.

On 1-10-1968, the appellants brought the present suit for declaration that the suit land is under mortgage-with them for over sixty years and thus they have become its owners and the rights of the original owners and first mortgagees have extinguished.

The suit was contested- by the Provincial Government as defendant alone and upon the pleadings of the parties the learned trial Judge framed issues and recorded their evidence thereupon. On examination of the evidence, he found that the appellants as sub-mortgagees prescribed title to the suit land and the Provincial Government is a mere successor of the first mortgagees, i.e. non-Muslim evacuees. He, accordingly decreed the suit of the appellants, vide his judgment dated 7-5-1969. Against this judgment, the Government/respondent preferred appeal before the learned Senior Civil Judge exercising appellate powers who allowed the appeal and setting aside the judgment of the learned trial Judge dismissed the suit' of the appellants, vide his judgment dated 28-10-1969. Hence this appeal.

Learned counsel for the parties heard, evidence on record gone through and judgments of the two Courts below perused.

In allowing the appeal of the Government; respondent, the learned lower appellate Court referred to subsection (3) of section 4 of the Displaced Persons (Land Settlement) Act, 1958, which provides that :--

"(3) On the publication of Notification under subsection (1) or sub-section (2), the right, title and interest of any evacuee or persons claiming through him in the land specified in the notifications shall, with effect from the date of such publication, be extinguished and the land shall vest wholly and absolutely in the Central Government free from all encumbrances,"

and held that in view of this provision, the Government as first mortgagee was succeeded by the non-Muslim evacuee and the appellants became second mortgagees. He further held that the suit land was mortgaged to the non-Muslim evacuees in 1892, therefore, the Government prescribed title to it as first mortgagee in 1952, and as the present suit was brought by the appellants in 1968 when the Government had already prescribed title to the suit land on the basis of subsection (3) of section 4, the status and position of the appellants would be that of charge-holder on the suit land 'and under section 14-A of the Act, the appellants can claim their mortgage amount from the Rehabilitation Authorities. On this view of the matter, the learned lower appellate Court allowed the appeal of the Government/respondent and dismissed the suit of the appellants.

Before me the learned counsel for the appellants contended that he does not dispute the fact that under section 4(3) of the Displaced Persons (Land Settlement) Act, 1958, the Government acquired mortgagee rights in the suit land as first mortgagee. The learned counsel for appellants urged that as first mortgagee their mortgage of sixty years completed in 1952, but the Government did not take any step to assume title of ownership to the suit land thereafter and nor it created further charge on the suit land with the result that the suit land remained under mortgage with the appellants for sixty years from the date of mortgage with them as second mortgagee on 1-8-1903 to 1-10-1968 when they filed the present suit and thus, according to the learned counsel, the appellants prescribed their title to the suit land.

I have given my anxious consideration to the contention of the learned counsel for the appellants but I have not been able to appreciate it. Subsection (3) of section 4, is clear on the point that the right, title and interest of any evacuee or persons claiming through him in the land shall be extinguished and the land shall vest wholly and absolutely in the Central Government. Therefore, as title to the suit land in the present case accrued to the non-Muslim evacuees in 1952, it was to be conferred on the Government/respondent. Now even though the Government/appellant did not take step to assert title to the suit land by prescription or to create further charge on the suit, it cannot, in my view, go against the Government/ appellant., The suit land was under mortgage with the appellants a sub-mortagees and in the circumstances of the case it cannot be said that the Government or for that matter the concerned Government Department (viz. Rehabilitation Department) had already notice of this fact. Confronted with this situation, the learned counsel for the appellants was unable to say anything on this aspect of the case. Therefore, in the peculiar circumstances of the present case in which non-Muslim evacuees migrated to India as a result of the Partition of the Sub-Continent and their right, title and interest in the land vested in the Government. Thus in the natural course of things then existed, the Government would be unaware of their right, title and interest in the land abandoned by the non-Muslim evacuees and in these circumstances, the appellants cannot be allowed to come forward with a claim that they should be benefited by the natural unawareness of the Government. It is not the case of the appellants that after the migration o the non-Muslim evacuees they as sub-mortgagees had attorned to the Government to be the first mortgagee of the suit land and although the Government was aware of this fact it did not take any step to assert title of ownership to the suit land by prescription or to create further charge on the suit land. In the absence of any such thing on record, the appellants would be deemed to be the charge-holders on the suit land and consequently they) can claim mortgage amount of the suit land from the Government.

On the view of the matter that I take I uphold the judgment of the learned lower appellate Court and dismiss this appeal with no order as to costs.

S. A. H. Appeal dismissed.

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