1998 PLP 129 (CLC)

Qazi Muhammad Ilyas for Respondents. Date of hearing: 11th January, 1997. The dispute in the instant case is about the prescription of title by the mortgagee who claims that the title of the mortgagors stands extinguished with the lapse of sixty years without redemption of mortgage.

2. One Zabar Dast Khan being the owner had created the instant mortgage in favour of Rahmatullah vide Mutation No. 197,.dated 19‑4‑1918 against a sum of Rs.100. The property, then measuring 53 Kanals, 11 Marlas situated in old Khasra No. 184 is located in village Mari Shah Wali. Abdul Haq son of Mir Alam of village Hamsherian happens to have attained the rights of a mortgagee while Ali Akbar son of Muhammad Khan of Hado Bandi and others happen to be the owners/mortgagors. Abdul Haq mortgagee filed a Suit No. 101/1 in the year 1979 claiming prescriptive title to the suit land but his suit failed before the learned Civil Judge Mansehra on 5‑2‑1980 as premature. His appeal No.73/13 also failed before the First Appellate Court on 16‑5‑1981.

3. Ali Akbar etc., the mortgagors on the other hand applied for restitution/redemption of the suit land before the Collector but the application was dismissed on 7‑10‑1982, holding that the mortgagee had become owner through time barred mortgage. His appeal before Additional Commissioner and revision before the Board of Revenue also failed on 7‑8‑1984 and 7‑11‑1987 respectively.

4. Another round of litigation started when Ali Akbar etc. the owners filed a Civil Suit No.54/1 on 27‑1‑1988 challenging all the decisions of the Revenue hierarchy being unlawful and without jurisdiction. Such suits was decreed by the Civil Court on 19‑2‑1991. The appeal of Abdul Haq mortgagee failed before the learned Additional District Judge Mansehra on 11‑1‑1992 and hence he has come up to this Court in revision under section 115, C.P.C.

5. Decisions of civil Court dated 5‑2‑1980 in Civil Suit No. 101/1 upheld by the First Appellate Court on 16‑5‑1981 in Civil Appeal No.73/13 and not challenged any further, had become final in so far as the question of prescription of title by the mortgagee was concerned. Such title was categorically denied to the mortgagee by a forum which had the exclusive jurisdiction to adjudicate upon the Res and whose decision had already become final. The Revenue Court had no jurisdiction to hold otherwise.

6. A Civil Court is a Court of universal jurisdiction and, with regard to matters falling within its exclusive jurisdiction, its decision is final and binding upon all other forums. Acquisition or otherwise of title by prescription is a pure question of title and any finding whereon given by civil Court, having become final as well, was an absolute determination of rights between the parties. No Revenue Court, how high so ever in its hierarchy, had the authority of ignoring the findings of Civil Court concerning title. The Collector, the Additional Commissioner and the Board of Revenue, thus, acted without jurisdiction and their findings were rightly set aside. The impugned judgments of the civil Courts do not, therefore, require to be interfered with.

7. Coming to the question of mortgage, we must reflect that it is created in the circumstances when the owner parts with the possession and income of land, obviously, under most pressing demand for money. No doubt it is his demand which results into creation of a mortgage yet one hard reality is always over looked that just one moment of weakness of a needy owner is exploited for a life time by the mortgagee. He enjoys the usufruct under the circumstances that the thing in his possession increases in value in geometrical progression while his money with the mortgagor devalues in arithmetical progression. Soon the mortgagee recovers the amount from the produce that he receives and still receives his original amount back at the time of redemption. He annually and some time twice a year receives the price of patting with capital (the principal amount being in tact) and hence fulfils all the ingredients of interest.

8. In the wake of these circumstances and in view of what has been held in Maqbool Ahmed v. the Government of Pakistan" (1991 SCMR 2063) we should realise that the interpretations have tended towards a change which is more akin to natural justice and Quranic ideology.

9. Mortgage, the subsistence thereof and prescription of title by mortgagee, are the conditions that militate against the right of a rightful owner, therefore, the Courts of law which also are the Courts of equity, should construe various transactions concerning mortgage in such a liberal way that the right of rightful owner survives and the one who has enjoyed the possession and produce for nearly sixty years and has recovered the amount manifold, should not be allowed to get away with the land as well. 10 Keeping this principle in mind, we revert to the original mortgage in hand which admittedly was created through Mutation No. 197 on 19‑4‑1918. The title under which the parties shine, is also admitted. Matter came before the Courts of judicial hierarchy four times and every time it was held that through Mutation No.822 of 1‑12-1944 the rights of mortgagee were purchased and through Mutations Nos.823 and 823/1 of 11‑12‑1944 it was redeemed and retreated and subsequently through Mutations Nos.13 and 14 attested on 7‑2‑1948, a novation of contract had taken place and a fresh period of limitation had started, thereby rendering the prescriptive claim as premature.

11. We believe that a receipt of mere additional charge on mortgage does not necessarily amount to a novation of contract but it certainly does if the parties intend so to do with their mutual agreement or when the circumstances give a clear indication thereof. So, was it held long ago in Nazif v. Abdul Ghaffar (PLD 1966 Supreme Court 267).

12. Abdul Haq petitioner mortgagee came into picture for the first time by purchase of mortgagee rights through Mutation No.822 attested on 1‑12‑1944. It was redeemed through Mutation No.823 of 11‑12‑1944 but this mutation though entered of "Fak Tekmeeli" (or Fak‑e‑Ferzi as described in PLD 1966 SC 267), and additional mortgage amount though charged yet it cannot be treated merely that of "Fak Takmeeli" because new mortgage vide Mutation No.823/1 was created by bringing in two other persons as mortgagees in addition to Abdul Haq. So, there is no reason as to why it should not be called as a new contract giving fresh start to limitation. Similar was a change in the number of parties and area involved when vide Mutation No.13 of 7‑2‑1948, the mortgage was redeemed from all the three persons and once again mortgaged to Abdul Haq petitioner with the increase of charge as well. There is no reason why this also should not be interpreted as novation of contract because in addition to additional charge, the old mortgagees including Abdul Haq, were ousted and thereafter new mortgage was created in favour of petitioner.

13. Right from first litigation between the parties up to the last, ode very important aspect of the case happened to lose sight of every one. Let us advert to the original creation of mortgage through Mutation No. 197 attested on 19‑4‑1918, the copies whereof are on record as Exh.P.W.1/11. The usufructuary mortgages are known and are entered in Revenue Record as "Rehn‑ba‑Qabza". This is the only term known to Revenue Officials describing such mortgages. The mortgage in question, as per column No. 13, was entered on the basis of a daily diary No.381 dared 12‑4‑1918, the gist whereof is reproduced in column No. 15, to the effect that "Zabar Dast Khan and Ghulam Khan owners got entered in the daily diary that land Khasra No. 184 measuring 53 Kanals, 11 Marlas is mortgaged in favour of Rehmatullah son of Nasirullah against a sum of Rs.100 as mortgage amount with right of cultivation (Rehn‑haq‑e‑Kasht) on payment of 1 /3rd share of 'batai' without Hay and Stalks. Mortgage amount is received and possession delivered "

14. The aforesaid peculiar and specific entries are quite distinct and completely different from entries of a normal 'Reh‑ba‑Qabza' mutation. The contract between the parties and the conditions thereof are glaringly visible. The mortgagee has a right to cultivate and a specific share of produce (excluding Hay and stalks) is ear‑marked. Such entry continues repeatedly and consistently in almost all relevant Jamabandis and all subsequent relevant mutations concerning the mortgage. Where mortgaged land is in possession of the mortgagee, the receipt of the rent or produce of such land under section 20 (2) of the Limitation Act is deemed to be payment on account of a debt or of interest under section 20(1) of the Act and amounts to an acknowledgement, giving fresh time of limitation; provided such receipt of rent or produce is before the expiration of prescribed period of limitation.

15. As mentioned earlier, the mortgage in hand is created and continues throughout under the conditions that squarely fall within the parameter I contemplated by subsection (2) of section 20 of the Limitation Act and hence amounts to acknowledgement under section 20 (1) of the Limitation Act; which acknowledgement is repeated with every crop every year, if not twice a year. I Thus, with the existing circumstances, no period of limitation would run against the mortgagor at all beyond one year. The property can be redeemed at any stage without the mischief of the law of Limitation barring redemption after the passage of sixty years.

16. When mortgagee .is in possession of the mortgaged property and in receipt of the usufruct, such receipts are treated as payments to the mortgagee for purposes of limitation regardless of what the intention of the party receiving the produce may be or might have been. Subsection (2) of section 20 of the Limitation Act does not expressly refer to the intention of such party. Particular insertion of subsection (2) in section 20 and the specific words thereof make it altogether self-contained and. even independent of the proviso preceding it concerning handwriting or signature of the person making acknowledgement. Simple possession of mortgagee and the receipt of rent or produce by him are sufficient ingredients to constitute absolute acknowledgement.

17. For all such reasons, the mortgage in hand could never become time barred. It was rightly ordered to be redeemed. The revision petition is hereby dismissed, with costs A.A/2228/P Revision Dismissed.