1999 PLP 2706 (YLR)

Respondent No. 1 filed a suit seeking a declaration that the suit land described in the plaint was mortgaged with his predecessor; namely Muhammad Din, by the predecessor of the petitioners and respondent No. 2 and that since the mortgage had not been redeemed for more than sixty years preceding the suit, the title of the petitioners stood extinguished and that he had acquired title by prescription.

2. The suit was resisted. The learned trial Court framed issues. The relevant issues are issues Nos.5 and 6 which are reproduced below: "

5. Whether the suit land is in possession of the plaintiff and his forefathers under a mortgage for the last seventy years?

6. Whether the plaintiff has become the owner of the suit land through the prescription of law? The parties produced their evidence. The suit was dismissed by the learned Civil Judge, Sialkot, vide judgment and decree dated 19‑6‑1983. The respondent No.1 filed an appeal which was allowed by a learned Additional District Judge, Sialkot, and the suit was decreed, as prayed for.

3. Mian Hamid Farooq, learned counsel for the petitioners contends that Muhammad Din, predecessor‑in‑interest of respondent No.1, acquired mortgagee rights in the year 1933 and as such the limitation would start from the date of attestation of the mutation of the sale of mortgagee rights.

4. Mr. Abdul Rashid Cheema, learned counsel for the respondents, tried to support the judgment of the learned Additional District Judge.

5. I have gone through the documents appended with the present civil revision with the help of the learned counsel for the parties. I find that no document evidencing the original mortgage which was made in favour of Hakam son of Wazira has been produced by any of the parties. However, I find that document Exh.P‑5, which is Mutation No.110 attested on 9‑3‑1934, records that Muhammad Din son of Karam Elahi purchased the mortgagee rights from Hakam son of Wazira through the said mutation. According to law sale of mortgagee rights constitutes acknowledgement within the meaning of section 19 of the Limitation Act, 1908 and gives rise to a fresh start of the prescribed period of limitation. I rely on the case of Allah Bakhsh v. Member, Board of Revenue etc. 1988 MLD 922 and Samar Gul v. Central Government and others (PLD 1986 SC 35). In view of this factual and legal position limitation of sixty years had not expired on the date when the suit was filed, which is 11‑10‑1979.

6. I may also note here that the limitation prescribed by Article 148 of First Schedule to Limitation Act, 1908 was to expire on 9‑3‑1994. Section 28 of the Limitation Act has since been declared to be repugnant to the injunctions of Islam by the Shariat Appellate Bench of the Supreme Court in the case of Maqbool Ahmad v. Hakoomat -e‑Pakistan (1991 SCMR 2063). The claim of respondent No. 1 is, therefore, not testable at all.

7. For the reasons stated above, this civil revision is allowed. The judgment and decree, dated 15‑1‑1986 of the learned Additional District Judge, Sialkot, are set aside while that of the learned trial Court dated 19‑6‑1983 is restored. There will be no order as to costs. Revision accepted.