P (PLP)

This is a petition for revision of the order of the Com missioner, Rawalpindi Division, dated 1st 'February 1946, upholding that d tie Collector, Gujrat, dated 5th June 1944. The facts are that 62 kanals and 18 marlas of land in village Sbadiwal was mortgaged for Rs. 500 by one Ibrahim‑in favour of one Amar Singh and mutation of mortgage was sanctioned on 25th February 1872, Ibrahim died and the mortgaged land came to be entered in the name of his two sons. Hatim and Fateh Din in equal shares. By mutation, No. 325, dated 22nd September 1898, Hatim's share was redeemed on payment of Rs.

250. The Patwari's report with regard to redemption was signed by Wazir Singh, Gunpat Rai and, Jhanda Mal, mortgagees. When the petition under section 4 of the Punjab Restitution of Mortgaged Lands Act was made on 9th June 193 t; the position was that the respondents were the successor‑in‑interest o the mortgagors and the petitioner was successor‑in‑interest of the mortgagees. The Collector, Gujrat holding that the transaction of 1898 was an admission acknowledg ing; liability within the meaning of section 19 of the Limitation Act and that the benefits enjoyed by the mortgagee or his predecessor‑in‑interest had exceeded twice the original mortgage sung, extinguished the mortgage without payment of any compensation. The petitioner went in appeal to the Commissioner who confirmed the order of the Collector. The petitioner has now come in revision to me. The learned counsel for the petitioner urges that the transaction of 1898 did not amount to an acknowledgment in respect of the unre deemed share of Fateh Din. III A I R 1925 Sind 181, it was held that an acknowledgment order section 19 of the Limitation Act must be a conscious admission of the existing liability in respect of the property or right which is claimed in the suit and must show an existing jural relationship between the parties at the time when the admission was made. It was further held that if all acknowledgment is not express it may be by implication, but implication must be necessary implication so that tile acknowledgment is clear and unequivocal. Again in A I R 1943 Allahabad 393 (F. B.), it was laid down that in a case where the mortgagors and mortgagees or their representatives attested certain entries in a khewat showing mortgagees to be in possession, mentioning mortgage amounts and stating that mortgage was redeemable on a certain date, such entries did not save limitation. The reason stated was than the attested entries in the khewat did not amount to acknowledgement by the mortgagees or their representatives, that the mortgages were existing in as much as it could not be said that the mortgagees or their representatives at the time of attesting the entries were conscious that they were acknowledging subsisting and enforceable liability against themselves and admitting the title of the mortgagor and the liability of the mortgages to be redeemed. Following these rulings I find that the ingredient of an acknowledgment, viz., consciousness on behalf of mortgagees of their subsisting and enforceable liability in respect of the unredeemed share of Fateh Din, is lacking ill this case. The mere affixing oft signatures by them to a PatNvari's report which contains no mention whatsoever of the mortgage in question does not amount to an acknowledgment within the meaning of section 19 of the Limitation Act. I hold that as there was no acknowledgment with regard to the mortgage in question in 1898, the mortgage had ceased to be subsisting within the meaning of section 2 of the Punjab Restitution of Mortgaged Lands Act, 1938, at the time the present application was made. Even it was not subsisting at the time the Act came in force i.e., on the 15th May of 1939. As such both .the Collector and the Commissioner had no jurisdiction to entertain the application or appeal respectively. I set aside the order, dated 1st February 1946 passed by the Commissioner, Rawalpindi Division, and the order, dated 5th Jume 1944 passed by the Collector, Gujrat, and thereby restore status quo ante. Parties to bear their own costs throughout. A. H. Revision accepted.