2003 PLP 966 (CLC)

Ch. Muhammad Rafiq Warraich for Respondents Date of hearing: 12th August, 2002 This petition under section 115 of C.P.C. arises out of a suit filed by Muhammad Saeed and three others (plaintiffs/respoudants) for declaration that they had acquired rights of ownership in 31 Kanals and 16 Marlas of land comprising in nhewat/Khatooni No.232/292, in Mauza Lasorri Kalan, Tehsil Phalia as per Jamabandi for the years 1984-1985.

2. According to the averments made in the plaint are that the land was mortgaged by the predecessor-in-interest of petitioners/ defendants Nos.2 and 5 in favour of Fazal Dad through a registered deed dated 7-4-1926, which was given effect in the Revenue Record through Mutation No.556 dated 18-9-1927. Subsequently, the legal heirs of said Fazal Dad transferred their rights as mortgage for a sum of Rs.2,000 by way of sale in the year 1961 through Mutation No.1937. On 11-1-1989, defendants Nos.4 and 5, considering themselves as owners of the suit-land sold 17 .Kanals, 13 Marlas of land to the petitioner/defendant No.l and got Mutation No.425 attested. Muhammad Saeed and Qadir both sons of Waryam, Mst. Sakina Bibi and Sikandai Hayat (minor), widow and son of Muhammad Salehoon respectively brought a suit on 22-2-1989 claiming to have become full owner after the expiry of statutory period of 60 years from the date of first registered mortgage dated 7-4-1926 in favour of Fazal Dad son of Mohkam. The defendants contested the suit. The learned trial Court reckoning the period of redemption of mortgage since 1926 came to the conclusion that the mortgagor had lost his right to redeem his property after the expiry of period of 90 days, as such they had no right to sell any portion of the suit-land. The learned trial Court decided Issues Nos.1 and 2 in favour of the plaintiffs and against the defendants. Accordingly, the learned trial Court decreed the suit on 19-11-1991. The appeal filed by the petitioners/defendants was also dismissed by the learned Additional District Judge, Mandi Bahauddin on 13-3-1996. Hence, this appeal.

4. There is no dispute between the parties regarding the facts. The only point which requires determination in this revision petition is whether the period of limitation for the redemption of mortgage would be reckoned from 7-4-1926, the date of first mortgage or from the date of second mortgage created by the successors-in-interest of Fazal Dad the first mortgage in favour of the plaintiffs/respondents through Mutation No. 1937.

5. Learned counsel for the petitioners contended that the successors-in-interest of Fazal Dad while creating second mortgage in favour of the plaintiffs admitted their position as mortgage on the one hand and on the other hand they acknowledged the right of the mortgagor to redeem the mortgage. In such cases, the time for redemption of mortgage would start from the date of- transfer of mortgage rights to some other person. Reliance has been placed on (1) Muhammad Azam Khan and 18 others v. Mst. Bani Begum (2000 MLD 612); (2) Muhammad Akram and others v. Arsalla Khan (1997 MLD 138); (3) Faqir Gul and others v. Abdul Rehman and others (1999 CLC 346). Learned counsel for the petitioner also argued that the period of limitation being repugnant to Islam as declared finally by the Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Maqbool Ahmad v. Government of Pakistan (1.991 SCMR 2063), the plaintiff's claim being immoral could be refused by the Courts below in the exercise of discretion available under section 42 .of the Specific Relief Act, 1877. In support of his contention, rgliance has.been placed on the case cited on PLD 1992 Supreme Court 225.

6. Learned counsel for the respondents submitted that the mortgagor was not a party to the second mortgage, as such the creation of subsequent charge by the mortgage would not affect the mortgagor's rights to redeem the property., In support of his contention, learned counsel for the respondents relied upon 1993 SCMR 92; PLD 1966 Supreme Court 267 and PLD 1983 Pesh. 58.

7. I have consioered the arguments put forth by the learned counsel for the parties. In the case of Ismail and 22 others v, Rehmat Ali hnd 15 others 1983 SCMR 92, there was only one mortgage and since the mortgagor had failed to redeem the property for a period of 60 years, it was held that the mortgagors had lost their right to redeem the same and their title to hold it had become extinct. In the case of Saif Khan PLD 1983 Pesh. 58 the creation of sub-mortgage by mutation but not in writing and signed by (original mortgage) was not entitled as acknowledgement within the meaning of Article 19 of the Limitation, Act but in the case Muhammad Azam Khan and 18 others v. Mst. Bani Begum and 5 others, my learned brother Maulvi Anwarul Haq, J. relying upon the case of Said Shah (1999 SCMR 70) held that the mutation whereby the respondents purchased the mortgage right do constitute acknowledgment within the meaning of section 19 of the Limitation Act, 1908. I feel myself bound to follow the law laid down in the case of Muhammad. Azam Khan and 18 others, which view is based on the case of Said Shah.

8. The above discussion leads me to the conclusion the, period of limitation in this case would start from 1961 when. the plaintiffs occupied the land as mortgage. I accept this revision petition and set aside the judgments. Consequently, the suit filed by respondents It stands dismissed. H.B.T./G-239/L Revision accepted.