2003 PLP 1537 (MLD)

4. On the other hand Mr. Amanullah Khan Khattak, the learned counsel for the respondents argued that the sale of mortgage rights or sub-mortgage does not give a fresh start to the limitation. Reliance in this regard was placed on Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others (PLD 1991 SC 524) and judgment passed in Civil Appeals Nos.788 and 789 of 1997, decided on 17-10-2002.

5. It was further argued that the respondent/plaintiff was in possession of suit property since 1903 and the mortgage in their favour had become time-barred. Reliance in this regard was placed on Islam and 20 others v. Rahmat Ali and 15 others (1993 SCMR 92).

6. I have heard the learned counsel for the parties and perused the record.

7. The question that requires determination is as to whether sub mortgages created in favour of other persons and their redemption would give fresh start of limitation for filing suit for possession through redemption of mortgage, the answer to this question is in negative. The property in dispute was mortgaged way back in the year 1903 as is clear from Misle Haqiat produced by Gul Shah Was Khan A.D.K. (P.W.2) in favour of Niaz Gul and Eidak sons of Mirza. No doubt the mortgaged property was sub-mortgaged in. favour of Major Tura Baz Khan vide Mutation No.1784 and was redeemed by him in favour of Khanzad Gul vide Mutation No.2225 attested on 12-7-1942. It is also on record that vide Mutation No.2174 attested on 19-3-1942 Niaz Gul sold his mortgagee rights to Khanzad Gul. Thereafter, Khanzad Gul again sold his mortgagee rights in favour of Mst. Gul Sarwara vide Mutation No.2294 but the said mutation was rejected on 20-1-1965. The argument of the learned counsel for the petitioner that the. sub-mortgages and redemption made by respondents would give fresh limitation to petitioners to file the suit has no force at all. Similar question came up for hearing before the august Supreme Court of Pakistan in Nazif v Abdul Ghaffar and others (PLD 1966 SC 267) in which it was held:-- "Once a mortgage has been created it remains in existence till it is brought to determination either by operation of some law or by agreement of parties and if it remains unredeemed for the period of limitation provided by the Limitation Act, it matures into ownership." In the same judgment it was further held that:-- "From the mere fact that a mutation of a Faq-i-Farzi had been sanctioned when the additional charge was created it could not inferred from such mutation that the original mortgage had been redeemed and a new one substituted in its place. Rights of parties are affected by their own contracts and conduct and nor by the form in which the Revenue Authorities make entries in their register. If the parties do not intend putting an end to the original mortgage the fact that a Faq-i-Farzi is entered -and sanctioned is of no significance."

8. Similarly in Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others (PLD 1991 SC 524) it was held:-- "that in order to prove acknowledgment giving fresh start .to the period of limitation within the four corners of limitation law relied on the point, such acknowledgment has to be in writing and signed by the person making it to attract section 19 of the Limitation Act, 1908. It was further held that creation of sub mortgage, unless in writing and signed by mortgagor and proved in Court of law as a fact would not amount to acknowledgment within the meaning of section 19 of the Limitation Act, 1908. "

9. Similar view was taken in Zarif Khan and others v. Muhammad and others (PLD 1983 Peshawar 58) which was approved by the august Supreme Court of Pakistan in the above quoted judgment.

10. Very recently in Civil Appeals Nos.788 and 789 of 1997 (Kata Mir and others v. Mst. Shaho Begum and others), decided on 17-10-2002 by the august Supreme Court of Pakistan the above-quoted view was upheld by the august Supreme Court of Pakistan.

11. The judgment cited by the learned counsel for the petitioner i.e. Chaman Khan v. Naqibullah Khan (PLD 1989 Peshawar 107) was in fact based by this Court on Allah Bakhsh v. Member, Board of Revenue (1988 MLD 922) which judgment was not approved by the august Supreme Court of Pakistan in PLD 1991 SC 524.

12. Therefore, keeping in view the dicta laid down by the august Supreme Court of Pakistan in the above quoted judgment I am of the firm view that the sub-mortgages created in favour of other persons and their redemption would not give fresh start of limitation unless acknowledged by the mortgagors in writing and signed by the person making it. The provisions of section 19 of the Limitation Act, 1908 would not, therefore, in absence of the above-mentioned condition be attracted. The Courts below have rightly dismissed the suit as well as the appeal filed by the petitioner. I have not been able to find out any misreading/non-reading of evidence, or any material irregularity or any jurisdictional error or defect in the impugned concurrent findings of the Courts of competent jurisdiction. Resultantly, the revision petition is dismissed in limine. H.B.T./836/P Revision dismissed.