2017 PLP 107 (CLCN)

MUHAMMAD YOUNIS THAHEEM, J.

Through the instant revision petition, petitioners/plaintiffs have challanged the validity and propriety of the impugned judgment and decree dated 07.01.2011, rendered by learned District Judge, Karak, whereby the appeal filed by petitioners/plaintiffs against the judgment and decree dated 17.12.2009, rendered by learned Civil Judge-III, Karak was dismissed by upholding the impugned judgment and decree of the learned trial court.

2. In essence, a declaratory suit was instituted by plaintiffs (hereinafter called as petitioners) being becoming owners vide mutation Nos.1132, 1133, 1144, 1141, 1148, 1149 and 1169 against defendants, (hereinafter called as respondents) for possession through redemption of landed property measuring 30 Kanal and 10 Marla (40 Kanal 10 Marla after correction) out of total mortgage landed property measuring 91 kanal and 9 Marla in Khata No.189/193, Khasra Nos.241, 236, 237, 238, 228, 229 and 230, situated in village Ahmed Wala Tehsil and district Karak; that they have also prayed for a decree of declaration to the effect that the entries in the revenue record, showing respondents Nos. 1 to 16 as "mortgagees Awal" are incorrect and ineffective upon their rights as well as on the rights of respondents Nos.37 to 43, and they (respondents/defendants) are not entitled to transfer the suit property to respondent No.17, hence mutation No.1178 entered on 17/02/2005 is incorrect, collusive and is liable to cancellation, that they had also prayed for permanent injunction and a decree of eviction of respondent No. 17 from the house owned and possessed by them.

3. The suit was contested by respondents-defendants, whereby numerous factual and legal objections were raised over the maintainability of the suit being non-joinder of necessary party, particularly to law of limitation. Learned trial Court, framed the issues out of divergent pleadings of parties. Therefore parties were permitted to lead their respective evidence. At the conclusion of trial, the learned trial Court after hearing both the parties, dismissed the suit vide its impugned judgment dated 17/12/2009.

4. Being aggrieved from the impugned judgment and decree of the learned trial Court, petitioners/plaintiffs preferred an appeal before the Court of learned District Judge, Karak and after hearing arguments of learned counsel for parties said appeal was also dismissed with cost of Rs.5000/- vide judgment and decree dated 07/01/2011. Hence, the instant Revision petition.

5. Learned counsel for petitioners contended that the impugned judgments and decrees of both the learned courts below are against law and facts on record, hence are not maintainable; that both the impugned judgments and decrees of the learned courts below are the result of non-reading and misreading of evidence available on file; that the learned Appellate court, while dismissing the appeal has failed to appreciate the law on the subject and decided the appeal in a very cursory manner without considering the evidence that the petitioners have successfully proved by producing documentary as well as oral evidence that they are not only mortgagees of the suit land but are also the owners to the extent of their purchased shares measuring total 40 Kanal 10 Marlas through sale mutations as discussed above but this aspect of the case was not considered in the light of evidence on record by the learned lower appellate Court relying on the mere oral assertion of Patwari Halqa which is contrary to record and thus judgments and decrees of the learned Courts below being based on misreading and non-reading of evidence and non-appreciation of law are liable to be set aside and suit of the plaintiffs as prayed for may kindly be decreed.

6. On the other hand, the learned counsel for respondents supported the impugned judgments and decrees of both the learned courts below; that the impugned judgments and decrees of the learned courts below have been rendered after proper appreciation of law and evidence which could not be interfered with by this Court so submitted for the dismissal of instant revision petition.

7. I have heard learned counsel for parties and with their valuable assistance have gone through the record.

8. The present petitioners became land owners stepping into the shoes of the mortgagors vide mutations Nos.1132, 1133, 1144, 1148, 1149 and 1169 from L.Rs of original mortgagors Rehmat Shah etc. and the legal heirs of them. It is pertinent to mention that the present petitioners are the L.Rs of Lal Marjan, who was originally tenant under the predecessor of present respondents/mortgagees. It is further necessary to mention that present mortgagees/respondents had purchased the mortgagee rights, vide mutation Nos.2067, 2068, 2069 and 2070. The present mortgagees had further transferred mortgagee rights vide mutation No.1178 attested on 17.02,2005 in favour of defendant No.17 and a house has been built on this property by respondent No. 17.

9. Patwari halqa appeared as PW-1, who produced relevant revenue record regarding Fard Jamabandi, mutations and Khasra Girdawri.The mortgage, as per revenue record is usufructuary in nature and the respondents are their predecessor continuously receiving usufruct of the same land, so every receipt of the usufruct is to be treated as payment towards mortgage amount for the purpose of limitation and every receipt of usufruct is considered towards acknowledgment of it. In this regard the provision contained in section 20 of the Limitation Act is attracted which is reproduced as:

20. Effect of payment on account of debt or of interest on legacy.- (1) [Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, or by his duly authorised agent, a fresh period of limitation shall be computed from the time when the payment was made:] [Provided that an acknowledgment of the payment appears in the handwriting of, or in a writing signed by the person making the payment] Effect of receipt of produce of mortgaged land.-- (2) Where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of subsection (1).

10. Moreover, this aspect has sufficiently been explained in the judgment of this court in case titled, "Baidullah Jan and 3 others v. Hawas Khan and 11 others" (PLD 2002 Peshawar 92), by following the judgment of Hon'ble Supreme Court delivered in case titled "Abdul Haq v. Ali Akbar and others" (1999 SCMR 2531), but this aspect has been ignored by both the Courts below and have non-suited the subsequent mortgagors/plaintiffs only on the pretext that in the above suit mutations only simple alienation has been made and words "under mortgage" had not been written which is quite erroneous view of the facts and law.

11. In view of section 42 of the West Pakistan Land Revenue Act, any land owner whose name has been entered in the revenue record of rights he can validly transfer his ownership rights by entering mutation and thereafter attestation of it and after attestation of mutation the person in whose favour mutation is attested steps into the shows of previous owner, as his name was previously appearing in the column of ownership and non- mentioning of words "under mortgage" does not disentitle the owners to file the suit for redemption. This legal aspect escaped from the judicial notice of both the Courts below, in the light of above discussion, it is held that sale mutations in favour of plaintiffs are couched with as "under mortgage".

12. It is in evidence that defendant No.17 had purchased mortgagee rights vide mutation No.1178 entered on 17.02.2005 in lieu of Rs.4,00,000/- (four lac) and thereafter constructed house on some portion of that mortgaged land in his possession measuring 9 Kanal 7 Marla and incurred Rs. 58.200/- as per receipts Ex.DW3/2 consists of five sheets much before plaintiffs became owners to the extent of 40 Kanal 10 Marla out of total mortgaged land measuring 91 Kanal 9 Marla so the plaintiffs/petitioners could not claim eviction against respondent No.17 as he had purchased mortgagee rights out of total area under mortgage measuring 91 Kanal 9 Marla. The other legal heirs of original owners/mortgagors had not filed any suit for redemption to the extent of their ownership so the possession under respondent No. 17 could not be disturbed as he has in his possession 9 Kanal 7 Marla as having mortgagee rights under remaining mortgagors who had not sold out their ownership rights. Moreover, the plaintiffs have narrated in the plaint 30 Kanal 10 Marla as their ownership while according to revenue record their ownership is 40 Kanal 10 Marla so the argument of learned counsel for respondents that this amounts to partial redemption which is not permissible under law and on this score suit is liable to dismissal. In response to this urgument, the learned counsel for petitioners submitted that in the plaint inadvertently area was written as 30 kanal 10 Marla actually according to the sale mutations the plaintiffs/petitioners had purchased 40 Kanal 10 Marla and submitted before the Court that this Court has ample powers to correct the above discussed inadvertence, hence the arguments of learned counsel for respondents seems not reasonable and only on this point case cannot be remanded back for the correction of inadvertence so the submission of learned counsel for petitioners seems genuine and in the plaint and onward in the judicial file where it appears 30 Kanal 10 Marla that is corrected and instead 40 Kanal 10 Marla is inserted. So office is directed to insert the same in the plaint with red ink.

13. It is settled law that High Court in exercise of its power envisaged under section 115, C.P.C. does not interfere in the concurrent findings of fact recorded by the first two courts of fact but where there is misreading and non-reading of evidence on the record which is conspicuous, or where there is an error in the exercise of jurisdiction by the Courts below or where the Courts had acted in the exercise of its jurisdiction illegally or with material irregularity, the revisional court shall interfere and could upset the concurrent findings. Ref. "Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others" (2016 SCMR 24), wherein it is held us: "Owing to the aforementioned omissions and commissions of the courts below in reading the evidence on the record and proper exercise of jurisdiction by the learned revision Court, the latter has aptly interfered with the two concurrent verdicts." 13(sic.) For the afore discussed reasons, the instant revision petition is allowed and judgments and decrees of two Courts below are set aside except against respondent No.17 and against this respondent No.17, suit is dismissed. Resultantly suit of petitioners/plaintiffs is decreed in above terms. With no order as to costs. ZC/59/P Revision allowed.