1992 PLP 1195 (CLC)

(c) Limitation Act (IX of 1908)... ‑‑‑‑S. 19‑‑‑Acknowledgement wherein all the parties to transaction had not assented to, could not be deemed to be acknowledgement in legal sense. Syed Jamshed Ali, for Petitioners. Raja Muhammad Sabir for Respondent. Date of hearing: 28th October, 1991. The facts giving rise to this case are that one Kala Khan mortgaged land measuring 6 Kanals 17 Marals, bearing Khasra No.518‑Old (New‑4058), situated in village Doberan, Tehsil Kahuta, District Rawalpindi with Ravail Singh and Hukam Singh sons of Rakha Singh for consideration of Rs.450 on 28th January, 1881. After the death of Ravail Singh, in the year 1931, Hari Singh, Mohar Singh sons and Mst. Molo Devi widow of the deceased. transferred their mortgagee rights in the said land to Lochan Singh son of Heera Singh. However, Mohan Singh son of Ravail Singh was left with mortgagee rights to the extent of 1/10 share. Hukam Singh son of Rakha Singh also sold away his mortgagee rights in the land in favour of said Lochan Singh in the year 1934 in consideration of Rs.248/8. At the time of independence in the year 1947, said Lochan Singh and Mohan Singh, the mortgagee's, migrated to India and the mortgagee rights in the land were transferred in favour of Central Government vide mutation No.56 sanctioned on 26‑5‑1964 and Central Government vide RL‑11 No.4, transferred its rights of mortgagee to Said Akbar Khan, etc., present petitioners, through mutation No.1484, sanctioned in year 1981. Fazal Dad son of Kala Khan, the original owner/mortgagor, alienated the land to Ali Muhammad, the present respondents, vide registered sale‑deed No.689, dated 28‑8‑1956 and on the basis of the said sale‑deed mutation No.6234 was sanctioned on 21‑3‑1957 in order to incorporate this transaction in the revenue record. Ali Muhammad the present respondent/vendee, on the plea that since the mortgage still subsisted therefore, he being the owner of the property wants to redeem the said rights after payment of the mortgage money. He moved an application before the Assistant Commissioner/Collector Kahuta on 17‑1‑1987 who dismissed the same vide his order dated I1‑1‑1989. The respondent, then went in appeal before the Additional Commissioner (Revenue), Rawalpindi Division, who accepted the same, set aside the order of the Collector: the suit land stood redeemed on payment of Rs.485 and the, petitioners were directed to hand over the possession of the land in question to the respondent. Hence this revision petition under section 15 of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964.

2. The learned counsel for the petitioners contended in the written arguments submitted by him that the property once treated as evacuee by the Custodian could not be declared as non‑evacuee by any one else. The principle of equitable estoppel is clearly attracted in this case inasmuch that the respondent stood by all this time while the land was dealt with under the evacuee laws. The land was allotted in 1956 and its proprietary rights were eventually conferred on 15‑4‑1981. Since the land had been treated as evacuee therefore the Redemption and Restitution of Mortgaged Lands Act, 1964, was not applicable by virtue of section 12 of the Pakistan Administration of Evacuee Property Ordinance XV of 1949 and section 16 of the Pakistan Administration of Evacuee Property Act, 1957. The mortgages, which were more than 60 years old on 1‑3‑1947, had already been extinguished and their rights vested in the Custodian. The respondent had not availed the concession given by the Chief Settlement Commissioner to redeem their property mortgaged with the evacuees. The learned counsel also questioned the locus standi of the respondent and said that he had purchased the land on 28‑8‑1956 but had moved for restitution in 1987 i.e. after 31 years. Further that the sale of mortgagee rights by the non‑Muslim evacuee in 1931 or 1934 did not amount to the acknowledgement as all mortgagees were not party to the aforesaid, acknowledgements. The mortgage is a indivisible transaction and all the mortgagees must be a party to the acknowledgement otherwise it does not extend limitation. The date of mortgage i.e. 28‑1‑1881 is also not established and the respondent had not deliberately shown the date of mortgage in his application. The learned counsel placed reliance on 1986 MLD 2074, 1986 CLC 1677, 1988 SCMR 1289, 1990 SCMR 951, 1956 NU 264, ILR 17 Bombay 173, PLD 1985 Lahore 476, PLD 1983 Pesh. 44 etc., and prayed that the revision petition may be accepted.

3. The learned counsel for the respondent maintained in rebuttal that mutation No.6234, sanctioned on 21‑3‑1957, shows that Fatal Dad s/o Kala the son of the original mortgagor sold the proprietary rights of the land in dispute alongwith some other land to the respondent. The petitioner had been unable to refute the fact that the land was mortgaged with the evacuees and the Central Government held only the mortgagee rights on the land in dispute. The petitioner's contention that since the respondent had expressed his ignorance regarding the date of mortgage and quantum of mortgage money in his application in the trial Court, therefore the petition is liable to be rejected as time‑barred cannot be entertained because the respondent ultimately succeeded in tracing Exh.A‑18 which gives the date of mortgage. as 28‑1‑1881 and the mortgage money of Rs.485. The objection of limitation must also fail because acknowledgements of the mortgagee and mortgagor's rights took place on 4‑7‑1931 and 5‑1‑1935 and the application for redemption was therefore within limitation. The learned counsel relied on 1988 MLD 922, PLD 1986 SC 35, PLD 1989 Pesh. 107 and prayed that the revision petition may be dismissed.

4. I have considered the arguments and perused the case record. The impugned order is based on the main ground that the limitation for redemption, which is 60 years, was extended by acknowledgements dated 4‑7‑1931 and 5‑1‑1935. There is no doubt about the date of mortgage i.e. 28‑1 1881. Therefore any omission in the original application to supply the detailed information was corrected subsequently by furnishing documentary evidence. The learned counsel for the respondent had not been able to rebut the petitioners' contention that the property, once treated as evacuee, could not have been declared as non‑evacuee by Civil or Revenue Court. The authorities quoted by the learned counsel for the petitioners i.e. 1986 MLD 2074, 1986 A CLC 1677 which relate to Colony (State) land and Muslim property support the petitioner's arguments as does 1988 SCMR 1289 and 1990 SCMR

951. The last authority lays down that where property was allotted as evacuee and possession was delivered to the allottees and the allotment was never challenged and any person claiming an interest in such a property would be required to apply to the Custodian for declaration in his favour then no case is made out for interference by any Court. This authority is on all fours with the present case as the respondent claims to have purchased the land in dispute in 1956 yet he slept over the entire issue for more than 30 years and in the meantime proprietary rights of the land were also conferred on the petitioners vide mutation No.1489 dated 15‑4‑1981. The transactions taking place on 4‑7‑1931 and 5‑1‑1935 cannot be considered as acknowledgements in legal sense because all the mortgagees were not party to the said acknowledgments. Therefore the limitation for redemption had expired in 1941.

5. In view of the foregoing the impugned order cannot be sustained and is accordingly set aside. The revision petition is accepted and the Collector's order dated 11‑1‑1989 is restored. AA./457/R Petition accepted.