P (PLP)

Akhtar Hussain, F. C.‑‑This is an appeal under section 10 of the Punjab Restitution of Mortgaged Lands Act, 1938, against the order, dated the 7th July 1948 of the Commissioner, Lahore Division, whereby he reversed the order, dated the 24th July 1944, passed by the Collector, Sialkot, and held that the old mortgage executed prior to. 1901 was at an end and could not now be said to subsist.

2. The facts are that on 12th June, 1894 Nathu Shah and Shah Nawaz, sons of Hussain Shah, caste Syed, of village Koth Said Mir, Tahsil and District Sialkot, mortgaged certain land with possession for Rs. 550 in favour of Karam Ilahi and Karam had, sons of Mahanda, Hayat Muhammad, son of Faqir, and Fateh Din, son of Karam Din, caste Dindar, of village Det, Tahsil and District Sialkot, through a registered mortgage deed of the same date. On 11th November 1917 and 11th December 1918, Nathu Shah, mortgagor, received further sums of Rs 53 and Rs. 20, from the same mortgagees on the security of the same land. By that a time Hayat Muhammad, son of Faqir, one of the mortgagees, had died and his sons Lai Din, Shahab Din and Nizam Din were brought on record as mortgagees in place of their deceased father. On the 10th June, 1919, further charges secured by deeds executed on 1Ith November 1917 and 11th December 1918, were merged into another mortgage and a deed evidencing the same was executed and registered whereby for Rs. 273 Nathu Shah (mortgagor) mortgaged with possession in favour of the same mortgagees his half share of the land Lastly on 30th November 1920, Nathu Shah on behalf of himself and as reversioner of his nephew Abdulla Shah who had died issueless as (Abdulla Shah s father, Shah Nawaz, having probably predeceased him) mortgaged with possession the whole of the land in favour of the same mortgagees for Rs. 1,

223. This amount inter alia comprised of Rs. 823 as mortgage money on account of prior mort gages, that is .Rs 550 of the mortgage effected on 12th June 1894 and Rs. 273 of the mortgage of 10th June 1919. An important stipulation inserted in the deed of 30th November 1920, was that redemption of mortgage was not to take place till the expiry of 16 years whereas according to the mortgage deed of 12th June 1894, the mortgage could be re deemed after the expiry of 8 years.

3. In 1943 Inayat Shah, son of Nathu Shah, applied under section 4 of talc Punjab Restitution of Mortgaged Lands Act, 1938, for restitution f the said land. The Collector referred to the mortgage of 12th June, 1894 and holding the same as subsisting within the meaning of section 2 of the Act ordered restitution of the land on payment of Rs. 89‑13‑0 by the mortgagor. The question whether the mortgage of 1894 had been replaced by that of 1920 was not touched by the Collector.

4. The mortgagees appealed to the Commissioner who held that the mortgage of 12th June, 1894, was definitely and categorically terminated by the new mortgage of 1920 by which the mortgagor gave up his right to redeem till 1936. He, therefore, decided that the old mortgage executed prior to 1901 was at an end and could not now be said to subsist. The appeal was, therefore, allowed and the order passed by the lower Court was set aside. The mortgagor has now preferred an appeal before me against the order of the Commissioner referred to above After hearing arguments on both sides it seems to me that the conclusion arrived at by the learned Commissioner was correct for the following reasons :‑ (i) In I. L. R. 13 Lah. 660 (F. B.) Sher Singh v. Daya Ram and others it was held :‑‑ If for instance the new transaction purports to cancel the earlier one or contains conditions substantially different from those contained in the original mortgage, or an additional area of land is included in the security there can be no doubt that the old mortgage is at art end, and a new and wholly different relationship between the parties has been brought into existence ". The learned Commissioner has remarked that there is adequate justification for holding that the latter portion of the above ruling applies to this case as tile new mortgage or 1920 contained a condition substan tially different from that contained in the original mortgage of 1894. It appears to me that even the first portion of the ruing seems to apply to this case as the new mortgage of 1920 purports to cancel the earlier one of 1894 and also includes in the mortgage money all the charges on the property up to 1920 including the charge on half the property made in 1919. (ii) Secondly, it has been held in I. L. R. 1947. Lah. 259 (F.B) that where a mortgagee has been in possession by virtue of a mortgage created before 1901 and a second mortgage or charge is created after 1901 on the same property with the stipulation that possession will remain with the mortgagee till the second mortgage is redeemed or the charge is paid, the Collector cannot order that the possession by handed over to the mortgagor without payment of the additional charge or mortgage debt. It may be open to the Collector to declare that mortgages entered into before the 8th June, 1901, have b‑en extinguished. He can, however, go no further and hold that the property should be handed back to the mortgagor without payment of the additional charge created after the 8th June 1901. This ruling appears to be applicable to the facts of the present case. The mortgage of 1894 having merged in that of 1920, the former must be deemed to have been completely effaced. There was thus no subsisting mortgage left which was effected prior to 8th June, 1901 and as such the provisions of the Punjab Restitution of Mortgaged Lands Act 1938, became inapplicable, to the present case. From the Full Bench ruling of 1947 referred to above it would follow that the Collector cannot order under the Act that possession of the mortgaged land be handed over to the mortgagor by ignoring the stipulations contained in the mortgage deed of 1920. In short there is little justification for interference in the order passed by the Commissioner. The appeal is rejected. Inform parties accordingly. K. M. A. Appeal dismissed.