1988 PLP 922 (MLD)

The petitioner challenges through this Constitutional petition the order dated 30th August, 1969, passed by the learned Member, Board of Revenue, rejecting t; is revision petition and maintaining the order of Additional Commissioner, whereby he accepted the revision petit ion of Abdullah Shaukat respondent and restored the order dated 20th July, 1965, of the Revenue Officer, sanctioning mi nation for foreclosure of the mortgagor's right to redeem.

2. Briefly, the facts of the case are that one Kitha, predecessor‑in‑interest of the petitioner, mortgaged 65 kanals 4 marlas of land situate in village Gadai Gharbl Tehsil and District Dera Ghazi Khan, with Khushi Ram etc. now evacuees, under two different mutations sanctioned in 1892 and 1894. The successors of Khushi Ram, etc., later sold the mortgagee rights to Kaura etc. sons of Todar Mal on 3rd February, 1907, through mutations in the revenue record.

3. After the establishment of Pakistan, the mortgagee's rights were allotted and confirmed in favour of one Mahboob Ali Khan claimant, by the Settlement Authorities, under the Displaced Persons (Land Settlement) Act. On 20th July, 1965, Mahboob Ali Khan sold him allotment in favour of Abdullah Shaukat respondent. On the same date the Revenue Officer vide mutation No. 3223 fore closed the mortgage and extinguished the mortgagor's rights behind his back and without issuing any notice to him.

4. On coming to know of the order the petitioner filed an appeal before the Collector Dera Ghazi Khan, on 30th September, 1965. It was accepted on 24th August, 1966, setting aside the order of lore closure and restoring the mortgagor's rights. In the meanwhile, the petitioner had also applied for redemption of the mortgage under section 10 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964. The Collector accepted the application also and redeemed the mortgage vide order dated. 8th September, 1966.

5. Feeling aggrieved Abdullah Shaukat respondent filed a revision petition before the Additional Commissioner Multan. He accepted it vide his order dated 4th February, 1968, and set aside the two orders of Collector dated 8th September and 24th August, 1966. The result was that the order of foreclosure dated 20th July, 1965, passed by the Revenue Officer was maintained. A revision petition filed by the petitioner also failed on 30th August, 1969, and hence this petition.

6. It is contended by the learned counsel, on the basis of section 67 of the Transfer of Property Act that a mortgage can be foreclosed only by the decree of a Civil Court and that the mutation attested for such a purpose by the Revenue Officer, without a decree was ineffective and inoperative. He has also referred to Order XXXIV, rule 3, C.P.C., in the same context. Reference was also made to section 13 of the Limitation Act to argue that the time of the mortgage stopped running on the establishment of Pakistan, as decided by this Court in Muhammad Shari v. Ghulam Qadir (P L D 1978 Lah. 71). Section 19 of the Limitation Act too was pressed in service to say that the sale of the mortgagee rights in 1907 amounted to an acknowledgement, and therefore, the time should start running afresh from that point. The case of Sindhari Ram (A I R 15:'4 All. 498) was also cited in support.

7. Mr. Kanwar Akhtar Ali, the learned counsel for the respondent has not been able to refer to any provision of law whereby a Revenue Offices could foreclose a mortgage and extinguish the rights of a mortgagor and that too without hearing the person interested. He neither candidly stated that in his view no such power vests in the Collector. He, however, sought support from the case of Muhammad Shaft (supra) referred to by the learned counsel for the petitioner and also read certain instructions of the Chief Settlement Commissioner, as printed at page 426 of the Land Settlement Manual, by Mr. Latif (1977 Edition) to say that the mortgagor's rights stood extinguished. Mr. Ehsanullah, learned counsel for respondents 3(1) and 3(2) also appeared to state that though his clients had nothing to do with the dispute, their right for compensation was stopped by way of a stay order, only because they were given a portion of the disputed land during consolidation proceedings.

8. After hearing the learned counsel for the parties, I find that no Revenue Officer had been given any authority in law to foreclose any mortgage. Even the Custodian had no authority to take over what was not an evacuee property and so could not deprive a mortgagor of his right as held in Muhammad Khan v. Chief Settlement Commissioner (P L D 1962 S C 284). The Collector, therefore, could attest a mutation only after a Civil Court had so decreed. The rights of the mortgagor had neither been acquired nor were they subjected to the authority of, the Custodian under any law. Even the Chief Settlement Commissioner had not: been given any such power under any law and any instructions issued by him are ultra vires of his power. The right of the mortgagor was, therefore, to be governed by the general law and hence the petitioner had acted under a valid law to get the order dated 8th September, 1966, from the Collector, under the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964. Consequently, the impugned 'order passed by the Additional Commissioner) cannot be sustained.

9. The Commissioner in his order had disallowed the redemption and asked the petitioner to approach the Civil Court to prove that the allottees had not become proprietors. The learned Member, Board of Revenue, on the other hand, held, that the right of a mortgagor stood extinguished on the expiry of 60 years from the date of the mortgage. He further found that section 20 of the Limitation Act did not apply as it only gave the mortgagee a right to recover the mortgage money. The learned Member Board of Revenue, however, did not consider mutation No. 1686, dated 3rd February, 1907, and other mutations which were also referred to before Collector and the Additional Commissioner, while he refused to extend the period of limitation, under section 19 of the Limitation Act. It is to be noted that the period of 60 years under Article 148 read with section 19 of the Limitation Act would start running from the date of acknowledgement and would come to an end in 1947, as held by this Court in the case of Muhammad Shaft referred to above.

10. The question thus arising for determination is whether the time would start running from 1894 (the time of the mortgage) or a subsequent date? It is clear from the Collector's order that mutation No. 2876, dated 2nd February, 1917, of inheritance of the mortgage was attested in the name of Sobho, etc., mortgagee's sons. Then Beli Ram mortgagee died and mutation No. 356, dated 2nd June, 1923 was attested in the name of his son. Then on the death of Sobho, a mutation of inheritance No. 61, dated 26th March, 1939, was attested in his heirs' names. Similarly, the order dated 8th September, 1966, of the Collector mentions mutation No. 1686, dated 3rd February, 1967, about sale of the mortgagee's rights.

11. It was held in Lala Ganga v. Lachman (1924) 85 I.C. 633 (All) that where a mortgage was recited in the wajib‑ul‑arz prepared during a settlement, it was open to the Court to presume under section 144 of the Evidence Act that the rectal constituted an acknowledgement, within the meaning of section 19 of the Limitation Act. The mutation dated 3rd February, 1907, is also a specific acknowledgement of the mortgage by the mortgagee and, therefore, the Additional Commissioner and the Member, Board of Revenue, ran in error in C holding otherwise. Reference may be made to M.C. Kadir v. Abdul Latif (P L D 1970 Kar. 708). The limitation thus had not run out. The mortgagor's right was in subsistence and the order of redemption was perfectly valid. In any case, the order extinguishing his right was without authority and was a nullity.

12. Again, as the entire land in question is said to have been acquired for the Atomic Energy Authority the parties shall only be entitled to compensation. The consolidation authorities, however, can alter their interest in various parcels of land but cannot extinguish them. Consequently, the rights of the parties to seek compensation would subsist in the light of the order dated 8th September, 1966, passed by the Collector in favour of the petitioner and other title documents. In this view of the matter the impugned orders of the Additional Commissioner and Board of Revenue are declared to be without lawful authority and of no legal effect, leaving the parties to bear their own costs. M.Y.H./3357/L Petition accepted.