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Appeal No. 2 of .1947‑48, decided on 22nd January 1950, from the order of the Commissioner dated 19^th July 1947.

S. 3-- Discretion exercised by Deputy Commissioner could not be interfered with.

A I R 1942Lah. 194 relied‑on.

Ss. 6 and 14‑Permanent Alienation if not sanctioned by Deputy Commissioner will be treated us usufructury mortgage under section 6.

This is an appeal against the order of the Commissioner, Rawalpindi division, dated 19th July 1947, whereby he reversed the order of the Deputy Commissioner, Lyallpur, dated 1st April 1945, wherein it had been derided that possession of certain land should be delivered to the appellants provided they paid Rs. 30,000 by way of compensation to the respondent within one year from 1st July 1945.

2. Briefly the facts are that the father of appellant No. 1; a Kashmiri (non‑agriculturist) of Amritsar, sold 330 acres 4 kanals' and 6 marlas of agricultural land with two ahatas situated in Chak No. 354/J. B., Tahsil Toba Tek Singh, district Lyallp6r, to one Kanshi Ram, a non‑agriculturist of Jullundur district, by a registered sale‑deed, dated 5th May 1910 for Rs. 53,000. Both parties being non‑agriculturists the mutation of sale was sanctioned', on 1^st September 1911.

3. On 11th November. 1941 appellant No. 1 applied to the Deputy Commissioner, Lyallpur, that his father being a Qureshi was a member of an ‑agriculturable tribe and, therefore, the sale in favour of Kanshi Ram, a non‑agriculturist, was invalid and should be converted into a usufructuary mortgage under section 6 of the Punjab Alienation of Land Act.

4. By his order dated 15th March 1943,1he Deputy Commis sioner first admitted the claim of appellant No. 1 that be and his father being Qureshies were members of a notified agricultural tribe in the Lyallpur district. This order was upheld throughout by the Commissioner as well as the Financial Commissioners.

5. As regards the sale the Deputy Commissioner, relying on 1931 L L T., p.45‑which laid down that a person's change of caste in the revenue papers has a retrospective effect as it is not a question of adopting a new status held that his sanction was necessary under section 3 of the Punjab Alienation of Land Act, before a mutation could he sanctioned. Such sanction having been refused the sale must be deemed to have been converted into a usufructuary mortgage for 20 years under section. 14 of the Act. As this period expired on 5th May 193C, the Deputy Commissioner decided that: the appellants were entitled to get back possession of land provided they paid Rs. 30,000 to the .respondent within one year from the date of the Deputy Commissioner order (1st July 1945). The Deputy Commissioner refused to give ex post facto sanction to the sale and also rejected the plea of adverse possession by the respondent:

6. The respondent‑ appealed to the Commissioner who accepted the appeal on two grounds :--

(a) The usufructuary mortgage having expired on 5th May 1950 the respondent had been in adverse possession of land for over 12 years arid hence he could not be dispossessed. The Deputy Commissioner had held that as appellant had made the application on lath November 1941 the period of 12 years was not then over. The Commissioner however held that the date of application was not material. The appellants were admitted as members of a notified agricultural tribe only 'on 15th March 1943 when the period of 12 years had already elapsed.

(b) The Deputy Commissioner had ordered that possession of land be given back to the appellants provided they paid Rs. 30,000 to the respondent within one year from 1st July 1945. The appellants failed to do this and hence the Deputy Commissioner's order had become infructuous. It is pointed out that against this part of the Commissioner's. order the appellants have put in a revision application.

7. The learned Commissioner rightly held that the discretion of the Deputy Commissioner under section 3 refusing to sanction the sale could not be interfered with. A I R 1,942 Lah. p. 194. It was not, however, cdrr5ct for him to upset the order of the Deputy Commissioner and to undo the effect of his refusal to sanction the sale merely because adverse possession was claimed or because the amount fixed as compensation (Rs. 30,000) was not paid within the period prescribed. i.e., one year from the date of his order. In the first place, section 14 of the Alienation of Land Act clearly lays down that any permanent alienation which under section 3 is not to take effect as such until the sanction of a Deputy Commissioner is given thereto. shall until such sanction is given or if such sanction has been refused, take effect as a usufructuary mortgage in form (a) permitted by section 6 for such term not exceeding 20 years and on such conditions as the Deputy Commis sioner considers to be reasonable. The alienation in this case assumed the form of a mortgage under section 6 (a) from its inception, i.e, 1st September 1911.

8. Article 148 of the Limitation Act prescribes a period of 60 years within which a mortgagor can redeem the mortgage and the question of adverse, possession, therefore, does not arise.

9. The appellants had good 'reason for the non‑payment of the compensation money within the period allowed by the Deputy' Commissioner. Before the period expired the respondent had filed an appeal to the Commissioner and the appellants had also applied to the Commission for the extension of the period to one year after the disposal of the appeal. The Commissioner passed no orders on this application.

10. The appeal is therefore accepted, the Commissioner's order dated 19th July 1947 is set aside and the Deputy Commis sioner's order dated 1st July 1945 upheld. The respondent is now an evacuee and the compensation money (Rs. 30,000) shall be paid to the Custodian in respondent's account and a receipt obtained for him before possession is delivered.

11. The appellants have also in a separate application questioned the legality of the Deputy Commissioner's order regarding compensation. They did not raise this plea in the appeal before the Commissioner and in any case I find that under section 14, the Deputy Commissioner was empowered to impose any condition that he considered reasonable. The application is, therefore, rejected. Parties to be informed.

K.M.A. Appeal accepted.

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