1995SCMR675 (PLP)

SAIDUZZAMAN SIDDIQUI, J.‑‑‑The petitioners are seeking leave to appeal against the judgment of a learned Judge in Chambers of Lahore High Court, Multan Bench, dated 23‑6‑1994 whereby Civil Revision Application No. 664 of 1992 filed by the respondents was accepted and the judgment and decree for redemption of the mortgaged property passed in favour of the petitioners by the Courts below was set aside. The relevant facts of the case are that the petitioners instituted a suit for redemption of land measuring 4 Kanals and 2 Marlas situated in Mauza Marhata, Tehsil and District Dera Ghazi Khan on 21‑9‑1988. It was alleged by the petitioners in their plaint that their predecessor‑in‑interest Hussain son of Budha had mortgaged in all 20 Kanals and 2 Marlas of land to Hindu evacuee Mangoo Ram and Aya Ram sons of Tara Mal during the year 1885‑

86. It was also asserted that out of the aforesaid 20 Kanals and 2 Marlas of land. predecessor‑in‑interest of the petitioners redeemed certain land leaving behind only 4 Kanals and 2 Marlas of land under mortgage at the time of partition of sub‑continent. It is an admitted position in the case that this 4 Kanals and 2 Marlas of land was subsequently allotted to a claimant in satisfaction of his claim under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter to be referred as `the Act' only) and the predecessor‑in‑interest of the present respondents purchased this property from the claimants displaced persons. The petitioners instituted a suit for redemption of the above property on 21‑9‑1988, which was resisted by the respondents and it was pleaded that the suit filed by the petitioners is beyond time. It is not disputed by the learned counsel for the petitioners that the limitation prescribed for redemption of mortgaged property under the Limitation Act is 60 years but it is very vehemently contended by the learned counsel that on account of redemption of the properties after the creation of the mortgage in the year 1885‑86 the period of limitation stood extended from date of such redemption. In support of his contention, the learned counsel has relied on sections 19 and 20 of the Limitation Act. The trial Court as well as first appellate Court agreed with the contention of the petitioners and decreed the suit for redemption against the respondents. However, the learned Judge in Chambers reversed the judgment and decree of the Courts below holding that the right to redeem the property had extinguished before 1947 when the property became evacuee and as such no right of redemption was available in respect of the property. The learned counsel for the petitioners contended before us that on account of redemption of part of mortgaged property the period of 60 years prescribed under the law for redemption of mortgaged property, shall be deemed to have been extended from the date of redemption in view of sections 19 and 20 of the Limitation Act. Section 19 of the Limitation Act provides that where before expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derived title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. The learned counsel for the petitioners is unable to show from the evidence on record that either the original mortgagees or the respondent transferees at any time within 60 years of the creation of mortgage gave any acknowledgment accepting the right of petitioners or their predecessor to redeem the property mortgaged smith them. On the contrary the claimant who was transferred the above property, under the provisions of the Act and the transferee from him, both asserted right of ownership in the suit property and denied any existence of mortgage. In' these circumstances, there is no evidence on record to show that the period prescribed for redemption of property under the Limitation Act stood extended under section 19 of the Limitation Act. The learned counsel also sought reliance on the provisions of section 20 of the Limitation Act, which reads as follows:‑‑ "20.‑‑(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. (2) Where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such and shall be deemed to be a payment for the purpose of subsection (1). Explanation.‑‑Debt includes money payable under a decree or order of Court." It is contended by the learned counsel flat the redemption of the part of the property which was mortgaged with the Hindu evacuee shall be deemed to be a payment in respect of the mortgaged property which gave a fresh period of limitation from the date of such redemption. In support of his contention, the learned counsel has relied on an unreported case (Civil Appeal No. 765 of 1984, Abdullah Shukat v. Allah Bakhsh), decided on 1‑4‑1991/ 11‑8‑1991. The unreported case relied by the learned counsel for the petitioners, however, is distinguishable on facts. In the cited case, there was a finding by the Collector that the creditor‑mortgagee used to receive the produce of the mortgaged land and on the basis of this finding of Collector, the Court in the redemption suit held that. in view of section 20(2) of the Limitation Act, the period of limitation shall be deemed to have started a fresh every time such payment was received bay the mortgagee. It was also found in that case that the limitation for filing t1ae suit stepped running since 1947 in view of the fact when the defendant was out of Pakistan and after exclusion of that period he remained out of Pakistan, the suit for redemption was within time. No such circumstances existed in the present case. The learned counsel for the petitioners has also relied on another unreported case (Civil Appeal No. 26 of 1992, Ghulam Sarwar Khan etc. v. Mst. Gohar Sultan etc.), decided on 28‑10‑1992 but the facts of this case are also quite distinguishable. As stated earlier the mortgage in this case was created according to petitioners own showing in 1885‑86 and as such the period of 60 years prescribed under the Limitation Act for redemption of the mortgaged property expired in 1946. 6 Therefore, in 1947 when the property became evacuee, the equity of redemption had already extinguished. The learned Judge in Chamber, therefore, rightly reached the conclusion that the suit for redemption was not maintainable in the circumstances of the case. No case for interference with the order of High Court is made out. Petition is, accordingly, dismissed and leave is refused. AA./D‑114/S?????????????????????????????????????????????????????????????????????????????????????? Leave refused.