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Custodian Evacuee Property, Punjab, Jullundur, v. Prabhu Dayal And Others
Factual and Procedural Background
The mortgage in dispute originated in 1863. The appellant is a successor-in-interest of the original mortgagor; the respondents are successors-in-interest of the original mortgagees. In 1925 the mortgagor applied under the Redemption of Mortgages Act (Punjab Act, II of 1913) to the Collector for redemption; the Collector allowed the application and the mortgagor entered into possession. The mortgagees sued for possession under s. 12 of that Act, obtained a decree and regained possession, and have since remained in possession as mortgagees. On 5 October 1955 Prabh Dyal and Smt. Sampti (successors of the mortgagees) sued for a declaration that they had become owners by reason of expiry of the period of limitation under Art. 148 of the Indian Limitation Act. The trial Court decreed the suit; the Additional District Judge dismissed the appeal; the Custodian of Evacuee Property brought a second appeal to this Court.
Legal Issues Presented
- Whether the second appeal is time‑barred because the trial Court's judgment was not filed within the period of limitation and whether delay in filing the judgment copy should be condoned under Section 5 of the Limitation Act.
- Whether the trial Court's judgment, being unstamped, can be deemed filed and whether that prevents the appeal.
- Whether the Custodian has jurisdiction under Section 46 of the Administration of Evacuee Property Act (No. 31 of 1950) to decide whether the mortgage is time‑barred or whether the mortgagees have become owners after expiry of the limitation period (including adverse possession issues), or whether that question falls to ordinary civil courts.
- Other procedural issues raised: filing without power‑of‑attorney and alleged abatement due to the death of Smt. Sampti and non‑bringing in of her representatives.
Arguments of the Parties
Respondents' Arguments (Mr. S. L. Puri)
- Preliminary objection that the trial Court's judgment was not filed when the appeal was filed (filed after the expiry of limitation), so the appeal is time‑barred.
- The trial Court's judgment is unstamped and therefore cannot be deemed filed; counsel must ensure documents are properly stamped.
- Other objections: appeal filed without power‑of‑attorney; Smt. Sampti died and her legal representatives were not brought on record within limitation, so the appeal has abated.
- Relied on precedents (Molu Mal v. Sri Ram; Naul v. Mula; Mathra v. Ram Singh; Shahadat v. Hukam Singh; Mohammad Fazal Elahi v. Ram Lal) to support procedural objections.
Appellant's Arguments (Mr. Chetan Dass)
- Admitted that if the delay in filing the copy of the trial Court's judgment is not condoned, the appeal would be barred; prayed for condonation under Section 5 of the Limitation Act.
- On the merits, contended that the Custodian is competent under Section 46 of the Administration of Evacuee Property Act to decide whether the mortgage is barred by time and relied on decisions (Gurparshad v. Assistant Custodian‑General; Parkash Chand v. Custodian Evacuee Property) to argue civil Court lacked jurisdiction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Molu Mal v. Sri Ram, AIR 1921 Lah 73 | Rule requiring memorandum of appeal in second appeals to be accompanied by a copy of the judgment of the Court of first instance; where such copy is not produced within time, the presentation is not valid. | Applied to hold that failure to file the trial Court's judgment within time invalidated the appeal presentation; supports dismissal on procedural ground. |
| Naul v. Mula, AIR 1926 Lah 626 | Authority reinforcing the requirement of timely production of the trial Court's judgment in appellate procedure. | Relied upon to support the procedural objection and the conclusion that the appeal fails on that ground. |
| Mathra v. Ram Singh, AIR 1927 Lah 747 | Authority to similar effect regarding filing requirements for second appeals. | Relied upon to reinforce the procedural ruling dismissing the appeal. |
| Shahadat v. Hukam Singh, AIR 1924 Lah 401 | Observation that counsel filing an appeal must ensure all documents requiring stamp are properly stamped; counsel cannot shelter behind clerk; respondent acquires a valuable right when limitation expires. | Applied to uphold the objection that an unstamped judgment cannot be admitted after limitation and to dismiss the appeal on that basis. |
| Mohammad Fazal Elahi v. Ram Lal, AIR 1935 Lah 124 (2) | Authority to the same effect as Shahadat v. Hukam Singh regarding stamping and counsel's responsibility. | Followed in upholding the unstamped‑document objection and dismissing the appeal. |
| Gurparshad v. Assistant Custodian‑General of Evacuee Property, AIR 1959 Punj 230 | Held that the Custodian alone can decide if a person is an evacuee and whether a particular property is evacuee property. | Examined and distinguished: court held the case does not support the proposition that the Custodian can decide matters of limitation/adverse possession when he is a party; noted the decision itself observed civil Courts may decide some of these questions. |
| Parkash Chand v. Custodian Evacuee Property, Jullundur, AIR 1959 Punj 64 | Authority that the Custodian can decide evacuee status and evacuee property questions. | Examined and found inapplicable to confer on the Custodian the power to decide limitation/adverse possession disputes where he is a party; did not justify ousting civil Court jurisdiction in present facts. |
Court's Reasoning and Analysis
The Court first addressed the delay in filing the trial Court's judgment. It found no sufficient explanation for failing to apply for the copy within the period of limitation; the application for the copy was made after limitation had expired. Consequently the time spent in obtaining the copy could not be treated as "time requisite" within the meaning of Section 12 of the Limitation Act, and the Court refused to exercise discretion under Section 5 to condone the delay. The Court relied on established High Court rules (as reflected in Molu Mal and similar authorities) requiring production of the trial Court's judgment in second appeals within time and held the late filing fatal to the appeal.
Secondly, the Court upheld the objection that the trial Court's judgment was unstamped. Citing Shahadat v. Hukam Singh and Mohammad Fazal Elahi v. Ram Lal, the Court emphasized counsel's duty to ensure documents are stamped and declined to admit an unstamped judgment after limitation had expired.
Because of these two dispositive procedural rulings, the Court found it unnecessary to decide other preliminary objections (power‑of‑attorney, abatement on death).
On the merits, the Court examined whether Section 46 of the Administration of Evacuee Property Act empowers the Custodian to decide whether the mortgage is barred by limitation or whether mortgagees have become owners after expiry of 60 years. The Court held that Section 46 confines the Custodian's jurisdiction to questions of evacuee status and evacuee property; it does not give the Custodian power to determine whether property is under mortgage or whether a suit for redemption is time‑barred. The Court emphasized the principle that special tribunals' jurisdiction must be found within the four corners of their constituting statute and that, absent specific statutory authority, ordinary civil Courts must determine questions of limitation or adverse possession. The Court found the authorities relied upon for broader Custodian power inapplicable to the present facts and noted that those authorities do not authorize the Custodian to be a judge in his own cause on limitation/adverse possession disputes.
Holding and Implications
APPEAL DISMISSED
Holding: The appeal fails on procedural grounds (late filing of the trial Court's judgment and unstamped judgment) and is dismissed with costs.
Implications: The direct effect is dismissal of the Custodian's second appeal with costs. The Court clarified that questions whether a mortgage is time‑barred or whether mortgagees have acquired ownership after the statutory period are matters for ordinary civil Courts unless the statute (expressly) confers such jurisdiction on the Custodian; the cited authorities do not extend to giving the Custodian power to decide limitation/adverse possession disputes where he is a party.
(1) The mortgage in dispute was effect in the year 1863. The present appellant is one of the successors-in-interest of the original mortgagor and the present respondents are the successors-in-interest of the original mortgagees. The mortgagor made an application under the Redemption of Mortgages Act (Punjab Act, II of 1913) for redemption of the mortgage in theyer 1925 to the Collector. The Collector allowed the application and the mortgagor entered into possession of the mortgaged property. The mortgagees sued for possession under S. 12 of the Act and got a decree for possession and consequently got back the possession of the mortgaged property and since then are in possession as mortgagees.
On the 5th of October, 1955, the present suit was filed by Prabh Dyal and Smt. Sampti, who are successors-in-interest of the mortgagees, for a declaration that they have become owners of the said land by reason of the expiry of the period of limitation fixed for redemption under Art. 148 of the Indian Limitation Act. This plea prevailed with both the Courts below with the result that the trial Court decreed the suit and an appeal against it was rejected by the learned Additional District Judge. The Custodian of Evacuee Property has come to this Court in second appeal.
(2) Mr. S. L. Puri, learned counsel for the respondents, has raised a number of preliminary objection. His first objection is that the trial Court's judgment was not filed when the appeal was filed on the last day of limitation, i.e., the 22nd of October, 1958, and that the judgment of the trial Court was filed on the 30th of October, 1958. An application for obtaining its copy was made on the 29th of October, 1958. Mr. Chetan Dass, learned counsel for the appellant, admits that if the delay in filing the copy of the judgment of the trial Court is not condoned, the appeal would be barred by time.
He, however, prays that the delay in filing the same may be condoned. In my view no case has been made out for the exercise of discretion under section 5 of the Limitation Act in his favour. There is no explanation why an application was not made to obtain the copy of the judgment within the period of limitation for filling an appeal. The application for the copy was filed after the period of limitation had expired. In such circumstances the time spent in obtaining the copy of the judgment of the trial Court cannot be said to be time requisite within the meaning of the expression in Section 12 of the Limitation Act.
Moreover it was filed a week after the date of the expiry of the period of limitation including the time spent in obtaining the copy of the judgment of the lower appellate Court. Thus it cannot be said that it is a fit case where any indulgence can be shown to the appellant, either under section 5 of the Limitation Act or in the matter of dispensing with the filing of the copy of the trial Court's judgment. It was held in Molu Mal v. Sri Ram, AIR 1921 Lah 73 that
"according to the rules of the Lahore High Court (the rules of this Court are the same) in the case of second appeals the memorandum of appeal shall, in addition to the copies specified in Order XLI, rule 1, be accompanied by a copy of the judgment of the Court of first instance. Where such copy is not produced within time, the presentation is not valid".
To similar effect are the decisions Naul v. Mula AIR 1926 Lah 626 and Mathra v. Ram Singh, AIR 1927 Lah 747. I am in respectful agreement with the authorities mentioned above. On this short ground the appeal would fail.
(3) The other preliminary objection of Mr. Puri is that the trial Court's judgment is not stamped and it cannot be deemed to have been filed at all. It cannot now be allowed to be stamped as the period of limitation for filing the appeal has expired. He relies on the observations of Scott-Smith J. in Shahadat v. Hukam Singh, AIR 1924 Lah 401 which are as under:
"In my opinion it is the duty of the counsel when filing an appeal to see that all the documents requiring stamp are properly stamped. He cannot shelter himself behind his clerk, and if his clerk has been guilty of any carelessness, he is responsible for that. A valuable right has accrued to the respondent by reason of the period of limitation for filing the appeal having elapsed, and I do not think it would be fair to him to admit this appeal".
To the same effect is the decision reported as Mohammad Fazal Elahi v. Ram Lal, AIR 1935 Lah 124 (2). I am in respectful agreement with the view expressed in the decisions referred to above and would accordingly uphold this preliminary objection as well.
(4) In view of my decision on the two preliminary objection, it is unnecessary to discuss the other preliminary objections raised by Mr. Puri, namely that the appeal has been filed without a power-of-attorney and that Smt. Sampti died a year ago and her legal representatives have not been brought on record within limitation and therefore the appeal has abated.
(5) On the merits Mr. Chetan Dass contended that it is within the competence of he Custodian to decide whether the mortgage is barred by time or not and he relied on section 46 of the Administration of Evacuee Property Act (No. 31 of 1950) in this behalf. Section 46 of the Act is in these terms:--
"Save as otherwise expressly provided int his Act, no civil or revenue Court shall have jurisdiction.
(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or
(b) ...... ...... ; or
(c) to question the legality of any action taken by the Custodian under this Act; or
(d) in respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine".
This section no doubt confers absolute jurisdiction on the Custodian to decide whether certain property is evacuee property or not and whether certain persons are evacuees or not. No power is conferred on the Custodian under the Act to decide whether the property is under a mortgage or not or that the suit for redemption respecting the mortgage is within time or is barred by time. It is a fundamental principle of law that the jurisdiction of the especial tribunals must be found within the four corners of the Act or the Charter constituting them.
Unless the Custodian has the power to determine the matter in dispute, namely, whether the mortgagees have become owners of the property after the expiry of 60 years, it will fall for determination by the ordinary civil Courts of the realm. Moreover, the question, whether the suit for redemption is barred by time or not is a question between the Custodian on the one hand and the mortgagees on the other, and unless the power is give tot he Custodian specifically under the Act to decide this matter, he cannot be a judge in his own cause, for the Custodian here would be like any other party to litigation.
(6) Faced with this situation Mr. Chetan Dass stated that in view of the authorities reported as Gurparshad v. Assistant Custodian-General of Evacuee Property, AIR 1959 Punj 230 and Parkash Chand v. Custodian Evacuee Property, Jullundur, AIR 1959 Punj 64 of this Court, which are binding on me sitting in Single Bench, the civil Court had no jurisdiction to decide the suit. I have gone through these authorities and they have no applicability whatever to the facts of the present case.
All that has been held in both these decisions is that it is the Custodian alone who can decide if a person is an evacuee and whether a particular property is evacuee property. I have already said that this is so. But then none of these cases goes on to lay that it within the competence of the Custodian in a dispute where he is arrayed like any other party to a litigation to be a judge in his own cause or to decide the question of adverse possession or limitation. As a matter of fact in Gurparshad's case, AIR 1959 Punj 230 it was observed-
"It may be that civil Courts are not debarred from deciding some of these questions if properly raised in those Courts".
(7) For the reasons given above, this appeal fails and is dismissed with costs.
(8) Appeal dismissed.
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