1. HAMOODUR RAHMAN, C. J.-The ancestors of the petitioners in both these petitions, who were Muslims, mortgaged large tracts of land in Goth Dargahi, in Rahimyarkhan District, with the ancestors of Tara Chand and Phagan Mall in the year 1854, on conditions which were described as `Opat Khatopat' (simple mortgage with a right to the mortgagee to recover the money advanced along with interest from the income of the land).
2. The decree-holder, it is claimed, thereafter also obtained possession of the lands in execution of the decree, but this is denied by the petitioners who claim that their ancestors and after them they themselves had continued in possession of these lands.
3. After the setting up of the Dominion of Pakistan, the Hindu mortgagees migrated to India and in 1959 the present petitioners filed applications under section 22 of the Administration of Evacuee Property Act (XII of 1957) before the Deputy Custodian for the redemption of the mortgages. The Deputy Custodian, by his order of the 1st of December 1959, permitted them to do so and mutations were entered in accordance with the order of the Deputy Custodian.
4. Thereafter, the Enforcement Staff applied to the Custodian to revise the above order on the ground that the petitioners, having lost their right to redeem the mortgage as long ago as 1946, could not be allowed to do so at this stage. The Custodian allowed the revision on the 28th of November 1963 and set aside the order of the Deputy Custodian. The petitioners then invoked the Writ jurisdiction of the High Court, but that petition was also dismissed on the 19th of December 1963. They came to this Court for special leave to appeal, but this Court refused to interfere by its order of the 31st of March 1964.
5. Before this Court, the main point then taken was that the consent decree passed in the suit filed by the Hindu evacuees in 1946 amounted to a transfer of the agricultural lands in contravention of section 21-A of the Punjab Alienation of Lands Act, and as such it was a nullity.
6. This Court agreed with the High Court and the decree passed on admission in 1946 did not amount to an alienation, because, the right to redeem or the equity of redemption had come to an end as long ago as 1914. This Court was also of the view that in any event, even if the consent decree be treated as amounting to an alienation of agricultural lands, the same cannot be regarded as void until that decree is set aside.
7. It was also then sought to be urged before this Court that the lands in dispute not having been treated as evacuee property before the 1st of January 1957, could not, by reason of the provisions of section 3 of the Administration of Evacuee Property Act, 1957, be now treated as evacuee property.
8. This Court did not allow this point to be argued as it had not been raised before the High Court.
9. After this, the petitioners started a second round of litigation by first approaching the Deputy Commissioner, Rahimyarkhan, under section 21-A of the Punjab Alienation of Lands Act. These applications were rejected by the Deputy Commissioner, but the petitioners went up to the High Court by a writ petition.
10. They also moved fresh applications before the Deputy Custodian, Evacuee Property, claiming that, by reason of the provisions of section 3 of Act XII of 1957, the properties in dispute could not now be declared evacuee property. The Deputy Custodian dismissed these applications on the 30th of June 1964 and the Custodian farmed this decision in appeal on the 6th of January 1971. The petitioners challenged this also by a writ petition in the High Court.
11. The High Court dismissed both these petitions on the 25th of March 1971 on the ground that this point could not be raised after the order passed by this Court on the 31st March 1964.
12. The petitioners now seek special leave to appeal, and the main ground urged on their behalf is that there has been no adjudication by any Court as yet on the question as to whether the properties could not be treated as evacuee property by reason of the provisions of section 3 of Act XII of 1957.
13. It is pointed out that in the last round, when they came up to this Court, this point was not allowed to be raised, as it had not been raised in the High Court. Thereafter, in the second round, all the Courts have frustrated the attempts of the petitioners to have this question adjudicated upon by saying that they cannot go behind the decision of the Supreme Court, although this Court had given no decision on this specific question.
14. We are not satisfied that the petitioners have any locus standi to raise this question now; firstly, because, in 1959, after the coming into force of Act XII of 1957, they had applied under section 22 of the Act for the redemption of the mortgage on the assumption that the mortgagees interest had become evacuee property. Learned counsel contends that this was not an admis--sion of the evacuee character of the property. It is difficult to agree with him, for no application under section 22 of Act XII of 1957 would have been entertainable, unless the property was an evacuee property.
15. Learned counsel next contends that we must not co-relate the vesting of evacuee property with the treatment of a property as evacuee property. The vesting is purely notional by virtue of the provisions of the Statute; but to establish treatment, there must be some overt act.
16. The only defence that can possibly now be raised by them is that they have acquired title to these properties by adverse possession if they have been in possession thereof since 1914, as alleged by them, openly and as of right. Such a plea can, however, be raised, if the petitioners are so advised in any proceeding that the Custodian may take to evict them from these lands. They may resist such eviction on this ground if they can succeed in showing that they have acquired title by adverse possession. We do not propose, however, to express any final opinion on this question.
17. So far as these petitions are concerned, they must both in our opinion, fail and are, accordingly, dismissed.