1992 PLP 1416 (CLC)

‑‑‑‑Arts. 19 & 28‑‑‑Redemption of mortgaged property ‑‑‑Acknowledgment‑‑ Property in question, having been mortgaged, various steps during course of mortgage period constituted acknowledgement‑‑‑Limitation for redemption would, thus, run from date of acknowledgement and not from date when property was originally mortgaged. PLD 1986 SC 35 rel. Sheikh Inam Karim for Petitioners. Mian Manzoor Hussain for Respondents. One Pallya father of petitioner No.1 mortgaged the suit land measuring 14 Kanals and 15 Marlas situated in village Billu Sandila, Tehsil Alipur, District Muzaffargarh to Saju Ram, non‑Muslim vide Mutations Nos.288 and 299 on 12‑3‑1901. In 1947, the mortgagee left Pakistan and the land was placed in subsequently it was allotted to the respondents in 1967 against their verified claim. Later on the petitioners applied for the redemption of the said land to the AC/Collector who on 28‑5‑1984 rejected their application. The petitioners then went in appeal before the Additional Commissioner but to no avail. Hence this revision petition.

2. The learned counsel for the petitioners argued that 14 Kanals 15' Marlas land was mortgaged to Hindus by the predecessor‑in‑interest of the petitioners on 12‑3‑1901. Upon creation of Pakistan mortgagee rights were transferred to the Central Government and then allotted to the respondents. The petitioners applied for the redemption on 20‑2‑1982, but the Collector dismissed their application on the ground that the subject land had been allotted to refugees. The Additional Commissioner too dismissed the petitioners' appeal. The respondents had not been given proprietary rights of the subject land but mortgagee rights according to the copies of the Record‑of Rights. The redemption of mortgage too was not mortgagee rights to Central Government constituted an giving a fresh limitation to the petitioners for redemption, as held iii PLD 1986 SC 35, 1980 CLC 583 and PLD 1978 Lah0.

71. The subject land was never treated as purely evacuee at all and therefore the Chief Settlement Commissioner's letter quoted in the impugned orders was not applicable. It was prayed that the revision may be accepted.

3. The learned counsel for the respondents maintained in rebuttal that the subject property was transferred to the Compensation Pool and was no longer property of the petitioners but of the Custodian of Evacuee Property. Allotment was made against the respondents' claim and no land was available for allotment now. The application for redemption was tune‑barred by 22 years and there is no provision for revision under Section 161 of West Pakistan Land. Revenue Act. ‑An appeal should have been preferred under the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964. No irregularity or illegality had been committed by the Courts below and the revision was thus liable to be rejected.

4. The learned counsel for the petitioners using his right to reply, with permission of the Court, submitted that the section of the law under which the revision petition was preferred had been mentioned inadvertently whereas an appeal or revision under the Redemption of Mortgaged Lands before the Board of Revenue was competent.

5. I have considered the arguments and perused the case record. The objection of the learned counsel for the respondents regarding admissibility of the present revision petition under Section 161 of the West Pakistan Land Revenue Act is correct; but Section 14 (2) of the West Pakistan Redemption of Mortgaged Lands Act also confers a right on an aggrieved party to file an appeal before the Board of Revenue. The matter involves the question of rights in property which should not be ousted on a mere technicality. The revision petition is thus treated as an appeal under the aforesaid provision of the Act, ibid.

6. The mortgagee rights were transferred to the Central Government vide Mutation No.1572 dated 23‑5‑1962 and this fact was incorporated in the Record‑of‑Rights for the year, 1965‑

66. Allah Dewaya etc., were shown as mortgagors and Muhammad Hayat etc., as mortgagee in the Register RL‑II Khata No.9 and Mst. Sughran etc., heirs of aforesaid Muhammad Hayat, were transferred the mortgagee rights vide Mutation No.330. The proprietary rights of the subject land were transferred vide Mutation No.771 to 774 dated 28‑9‑1989 to the respondents during the pendency of the litigation. However proprietary rights could not have been transferred under Section 52 of the Transfer of Property Act, 1882 during the pendency of the present proceedings without the permission of the Court and these Mutations Nos.771 to 774 being violative of the law are void ab initio and are accordingly set aside.

7. The application for redemption of mortgage was not time‑barred as held in PLD 1986 SC 35 as these various steps constituted an acknowledgment for the purposes of Sections 19 and 28 of the Limitation Act. The limitation was therefore to run from the date of these several acknowledgments. Taking even 1947 for purposes of limitation, the petitioners' application was not time barred. Further that the Chief Settlement and Rehabilitation Commissioner's Memo. No. 5496‑66‑5147‑R (P), dated 12‑10‑1966 relating to the mortgaged land which had been treated as purely evacuee land under Article 148 of the imitation Act, 1908 and utilized for satisfaction of pending claims for agricultural land appears to have been misread by the learned Additional Commissioner. The subject land was never treated as such till the transfer of proprietary rights in 1989; whereas the suit for redemption was brought before the Collector in 1982. The petitioners were still within their rights to apply for redemption of the mortgage and their application has been dismissed by the lower courts on erroneous considerations. The revision petition therefore succeeds, the orders of the Courts below are set aside and the subject property is allowed to be redeemed in favour of the petitioners on usual conditions.

8. As regards the question of the claim of the respondents, this shall be treated as a pending claim for the purposes of Section 2 (2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, and they shall be _.., allotted available land wherever it may be in Alipur Tehsil by the Assistant Commissioner/Deputy Settlement Commissioner (Land), Alipur or if there be none in this. tehsil then anywhere in the Muzaffargarh District by the concerned A.C./DSC (Lands) within three months of the communication of this order.

9. The order was reserved and it shall communicated to the parties as well as Assistant Commissioner/DSC (Lands), Alipur, District Muzaffargarh. AA./475/R Revision accepted.