2000 PLP 796 (MLD)

Pervez Khan Jahangiri for Respondents. Date of hearing: 23rd November, 1999. This writ petition under Article 199 of, the Constitution arises in the background that the property disputed between the parties was originally mortgaged in 1904. The mortgagee rights were purchased by one Khadi Khan through Mutations Nos. 1309 of 16‑11‑1923 and 1374 of 21‑2‑1925. The present respondents Fida Muhammad etc. are the successors‑in‑interest of the mortgagee while the petitioners are those of the owners/mortgagors.

2. A petition for the restitution of mortgage was filed by the owners on 14‑11‑1983 before the Revenue EAC/Collector, Mansehra while on the other hand Khadi Khan mortgagee brought a suit before the Civil Court on 21‑2‑1984 seeking declaration that he had prescribed title to the suit land. The suit was dismissed but was decreed by the Appellate Court against which the fevision also failed vide judgment, dated 10‑1‑1994 (Annexure B, page 11), the Honourbale Supreme Court set aside all the findings of the Courts below and directed that the civil suit of the mortgagee be deemed pending till the decision of restitution petition before the Collector.

3. The owners, through application dated 7‑2‑1994 got the restitution petition restored. Such petition was partially dismissed by the Collector vide his order, dated 30‑3‑1995 whereby the owners were allowed to redeem one Khasra number while restitution was disallowed qua the rest of the Khasra numbers holding that the mortgagee had prescribed title to the suit land for having remained in continuous possession for more than 60 years. The appeal before the Additional Commissioner and the revision before Board of Revenue failed on 7‑9‑1995 and 25‑6‑1996 and hence this writ petition wherein the dismissal of restitution petition was challenged on merits as well as on the ground that the Collector while dismissing the restitution petition had no authority to declare that the respondents had prescribed title to the suit land.

4. So far as the question of merit qua prescription of title is concerned, we would decline to entertain any arguments and to make any remarks because the matter is still sub judice before the Civil Court.

5. Coming to the second question, it is obvious that a petition for restitution of mortgage is filed under section 10 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964. In the present case the petition is mainly disallowed. Such dismissal is covered by section 11 of the aforesaid Act which lays down that "where the Collector is satisfied that a petition is not in respect of a subsisting usufructuary mortgage not less than twenty years old, or a usufructuary mortgage the period whereof has expired, he shall dismiss the petition, recording his reasons for such order".

6. To appreciate as to what a Collector can do one may also refer to section 3 of the Act that deals with petitions for redemption. In both, section 3 as well as section 10 of the Act, the material consideration is that on limitation and limitation alone. It is the factum of limitation, when deciding the fate of both the petitions for either redemption or restitution, in the light whereof the petitions are either to be dismissed or to be accepted. So, it is sufficient for the Collector to give a detailed account of the aspect of limitation and to dismiss the petition under section 11, recording his reasons for such order. As said earlier, such reasons mainly pertain to the involvement of period of limitation and he should avoid giving findings concerning the title of the parties. This is all the more necessary because the Collector exercising powers under the aforesaid Act is not a Court at all and the cause filed before him is not a suit but a petition. The petitions have their own way of being dealt with by the Revenue Authorities, who, in their capacity as such cannot decide the question of title. No doubt the Revenue Officer is required to give reasons for his dismissal but the same can well be done by referring to the factum of limitation alone.

7. In partition proceedings before a Revenue Officer, he can assume jurisdiction as Court whenever the question of title is disputed between the parties but such powers given under the Land Revenue Act are totally absent in the Redemption and Restitution of Mortgaged Lands Act, 1964.

8. Another important aspect of the case is that the mortgagee himself had resorted to the Civil Court for getting declaration towards prescription of title. Such matter is kept pending ,by the Honourable Supreme Court and hence the question of prescription or otherwise of title remains yet to be decided by the Civil Court.

9. We are of the considered view that the dismissal of restitution petition by the Revenue Officer on 30‑3‑1995 being besides the point, his declaring the opposite‑party to have become owners, was in excess of the jurisdiction vested in him. Under sections 3, 10 and 11 of Act XIX of 1964 the Revenue Officer is no doubt empowered to dismiss or accept the petitions concerned on grounds of limitation but no findings can be given qua the title on the ground firstly that he is not a Court and secondly that the proceedings before him arise from a simply petition. and not from a suit. The Revenue Officer in the instant case has traveled beyond his jurisdiction.

10. Holding the dismissal of restitution petition on 30‑3‑1995 to be valid otherwise, the findings qua the declaration of title are hereby set aside with the remarks that the same be decided by the Civil Court as directed by the Supreme Court vide judgment, dated 10‑1‑1994 Q.M.H./M.A.K./504/P Order accordingly.