2011 PLP 2773 (YLR)

CH. MUHAMMAD TARIQ, J.--This civil revision has been directed against the judgment and decree dated 4-12-2000 passed by the learned Additional District Judge, Rawalpindi.

2. Brief facts of the case are that the petitioners/plaintiffs filed a suit seeking a declaration to the effect that petitioners are owner in possession of the suit land and for permanent injunction restraining the respondents from alienating the suit land or interfering in their possession. The suit land was owned by Roshan son of Mirza who mortgaged the same, to Jalal son of Wall vide mutation of Mortgage No.853 sanctioned on 7-2-1925 the possession of the suit land was also delivered to the mortgagee. Since the property could not be redeemed within a period of sixty years which had expired on 5-5-1985. Therefore the right of respondents to redeem suit land had stood extinguished by virtue of operation of section 28 of Limitation Act.

3. The suit was resisted by the respondents/defendants. After framing of issues, the parties led their respective oral as well as documentary evidence, the learned trial court vide judgment and decree dated 6-2-1995 decreed the suit of the petitioners.

4. The respondents preferred an appeal and the learned Additional District Judge, Rawalpindi accepted the appeal, set aside the judgment and decree of trial court and dismissed the suit. Hence this civil revision.

5. Learned counsel for the petitioners contends that impugned judgment and decree is against law and facts as the provisions of section 28 of Limitation Act has no retrospective effect. The suit land was" mortgaged in the year 1925 while the respondents were obliged under the law to get the suit land redeemed within a period of 60 years which period has already lapsed in the year 1985. The suit is badly barred by limitation. Since the respondents could not get the suit land. redeemed, therefore, the matter has been foreclosed and respondents have no locus standi to ask for redemption of suit land. All the above important questions of law were ignored by the learned lower appellate court while passing. the impugned judgment, therefore civil revision be accepted, impugned judgment and decree be set aside and the suit of petitioners be decreed with cost throughout.

6. Conversely, learned counsel for the respondents has opposed the instant civil revision and contends that the law of adverse possession has been declared against the injunction of Islam it was a usufructury mortgage. Enjoyment of usufruct and receipt of produce by the mortgagee amounted to acknowledgement given fresh start to limitation. Learned lower appellate court has properly appreciated the law and has dismissed the suit of the petitioners. The instant civil revision is without any merit, it be dismissed and the judgment and decree of learned Additional District Judge, Rawalpindi be maintained.

7. Arguments heard. Record perused.

8. So far as the contention of learned counsel for the respondents is concerned that the suit land was never mortgaged and Mutation No. 853 dated 7-2-1925 is a forged document is hereby repelled as the mutation was duly incorporated in the revenue record and the entries were carried regularly in all subsequent "Jamabandies". The next controversy between the parties is that whether the law laid down by the Hon'ble Supreme Court in case titled, "Maqbool Ahmad v. Govt. of Pakistan" reported as (1991 SCMR 2063) is applicable in the matter in hand as the matter of mortgage has become past and closed matter and respondents have no right to claim the redemption of suit land. The proposition raised is misconceived because the suit for prescription of title could be fruitful only if mortgage, was fortunate to obtain a decree before 31-8-1991 because after such date, right or title of mortgagor would not be deemed to be extinguished. In the instant case, the suit was decreed by the learned trial court on 6-2-1995, therefore, the law relied by the learned counsel for the petitioners is not applicable in the matter in hand while the instant civil revision will be decided in the light of law laid down by the Hon'ble Supreme Court of Pakistan in cases "Durani and 35 others v. Hamidullah Khan and 15 others" reported as (2007 SCMR 480) and case "Ahmad Khan and others v. Abdul-ur-Rehman and others" reported as (2009 SCMR 191). In the instant case. The provisions of section 28 of Limitation Act are not attracted as they were no more part of the statute. There is no illegality, infirmity or misreading/non?-reading of evidence in the impugned judgment. Civil revision is without any substance, no interference is called for, same is dismissed. S.A.K. /A-143/L????????????????????????????????????????????????????????????????????? ??????????? Revision dismissed.