P L D 1984 Peshawar 202 (PLP)

(6) Whether the suit is bad for non joinder and misjoinder of necessary parties ? (7) Whether the suit has been properly valued for purposes of court‑fee and jurisdiction? (8) Whether the plaintiffs and pro forma defendants are 'in possession of the suit property as owners for a period of more than 12 years? (9) Whether the suit property was mortgaged with ancestors of the plaintiffs and pro forma defendants in the year 1872 and entries in the revenue papers on the basis of Mutation No. 1997, dated 5‑12‑1947 or any other m4tation are against law and void hence ineffective against the rights of the plaintiffs and pro forma defendants. As such the rights of defendants regarding equity of redemption of the suit property have extinguished? (10) Whether a new mortgage has not been created vide Mutation No. 1997, dated 5‑12‑1947 in favour of the predecessor‑in‑interest of the plaintiffs and pro forma defendants? . (11) Relief.

4. On the conclusion of the trial, the learned trial Judge, vide his judgment and decree, dated 19‑5‑1977, decreed the suit in favour of the plaintiffs. 7 he parties were, however, left to bear their own costs.

5. All the defendants (real and pro forma) felt aggrieved by the aforesaid decision of the learned Civil Judge and they, therefore, went up in appeal to the Court of the District Judge. The learned District Judge, vide his judgment and decree, dated 7‑1‑1978, while dismissing the appeal, however, modified the decree of the learned trial Judge to the extent of the share of the pro forma defendants 8 to 16 to which extent the suit, on the admission of the defendants 8 to 16, was dismissed. The learned District Judge also left the parties to bear their own costs.

6. The defendants 1 to 7, who. were the successors of the original mortgagors, were not satisfied with the decision of the learned District Judge and they, therefore, filed this revision petition.

7. Haji Sardar Bahadur Khan, Advocate appeared on . behalf of the petitioners and Syed Abdus Salam Sarwar, Advocate appeared on behalf of the contesting respondents, in whose favour the decree was passed by the learned District Judge. Their arguments were heard and the record of the case perused with their assistance.

8. The main argument of the learned counsel for the petitioners was that the plaintiffs/respondents having not remained. in continuous possession of the suit land as mortgagees for more than sixty years, could not, therefore, prescribe title thereto. His other contention was that since the mortgage in question was not an usufructuary mortgage but was simply mortgage of right to cultivate the land and when the mortgagees have been paying 'chakota' to the owners‑mortgagors, as entered in the revenue record to which the presumption of truth was attached, the question of prescribing title by the mortgagees did not arise. His contention was that the learned two Courts below misread and failed to read material evidence brought on record and for that reason reached wrong conclusion that the mortgage of the suit land was with possession and was more than sixty years old. He also contended that the admission made by some of the mortgagees against their interest would also bind their co‑mortgagees, who were plaintiffs/respondents 1 to 15.

9. The learned counsel for the contesting respondents, however, conten ded that the mortgage of the suit land was an usufructuary mortgage and that the owner‑mortgators, having not redeemed the mortgage and having not taken back possession of the suit land within sixty years, lost their title in the suit land. He further contended that there was no misreading or non- reading by the learned two Courts below of the evidence brought on record and that the decree passed by the learned District Judge, having the support of the evidence brought on record, was unassailable.

10. There is a unanimous finding of two Courts below that the mortgage of the suit land was with possession and was more than sixty years old. Applying Article 148 and section 28 of the Limitation Act to the case, the learned two Courts. below held that the owners‑mortgagors lost their right of redemption by efflux of time and the mortgagees, consequently, became owners of the suit land. The learned appellate Court, however, partially dismissed the suit insofar as it related to the share of the pro forma‑defendants/respon dents because of the admission made by them which could only bind them and hot the other mortgagees, in the written statement which they had filed in the trial Court jointly with the real defendants. The findings of the learned two Courts below on the nature and the period of mortgage related to questions of fact and could only he disturbed in revisional jurisdiction if there was found from the record any misreading or non‑reading of material evidence by the learned two Courts below. The main argument of the learned counsel for the petitioners, therefore, was that the. learned two Courts below had misread and not read the material evidence brought on record, and to prove so he took me through the entire revenue record and the copies of the relevant mutations brought on record.

11. From the revenue record (Exh. P. W. 1/1) it appears that in the first Settlement of 1872 the land in suit was represented by Khasra No. 293, measuring 32 kanals 4 marlas. Fatu Khan was owner of this land which he bad mortgaged with one Zamindar son of Noor Khan. Entry of mortgage was made in the column of ownership and in the column of cultivation both the mortgagor and the mortgagee were shown in possession of Khasra No. 293 in equal share. The mortgage of the land and the possession of Khasra No. 293 remained as before. In the Settlement of 1905‑06 this land was assigned Khasra Nos. 290, 291 and 308, which were recorded as mortgaged on behalf of Faqir only, who was one of the successors of Fatu Khan. A mortgage Mutation No. 230 was also attested on 10‑11‑1905 on behalf of Faqir and the mortgage charge shown to be was Rs.

40. As a result of private partition between the owners, effect to which was given in the revenue record by Mutation No 368, this land had fallen to the share of Faqir and to straighten the record Mutation No. 411 in respect of mortgage on behalf of Faqir alone was also attested on 11‑5‑1906. As is apparent from Mutation No. 409, attested on 11‑5‑1906, noted on the copy of the settlement record of 1905‑06, some of the land out of old Khasra No. 293 stood redeemed in favour of Faqir. For all intents and purposes, therefore, the old mortgage created by Fatu Khin, the father of Faqir, came to an end in the year 1905!06 and a new mortgage in favour of the heirs of former mortgagee Zamindar came into being by Mutation No. 411, attested on 11‑5‑1906. Another significant fact was that new Khasra Nos. 290, 291, and 308 measuring only 22 kanals 6 marlas, came under exclusive possession of the mortgagees. Entry to that effect was made in the revenue record. It is, therefore, established on the basis of this record that the mortgage of the suit land, which had come into being in the year 1906, was an usufructuary mortgage .The revenue record shows that the mortgagees remained in possession of the suit land and the mortgage was also in column of owner ship. Entry in respect of payment of 'chakota' found its way in column of 'lagan' of the Jamabandi of 1928‑29 but without any basis The mortgage and the possession of the mortgagees on the suit land, however, continued upto the Settlement Record of 1948‑

49. It was by correction Mutation No. 1772, attested on 12‑11‑1945, that the mortgage of the suit land in column of ownership was deleted and instead the right to cultivate the land was shown to have been mortgaged by the successors of Faqir in favour of the previous mortgagees. Later, by correction Mutation No. 1997, attested on 5‑12‑1947, different Khasra numbers in suit were shown to have been mortgaged with different mortgagee and entry to that effect was made in the revenue record, which continues upto the present day. The learned counsel for the petitioners contended that since the old mortgage created in the year 1906 had come to an end when Mutation No. 1772 was attested, and that since as a result of this mutation the new mortgage created was in respect of right of cultivation, the question of the mortgagees prescribing title by pauage of time, in the circumstances, did not arise.

12. The copy of Mutation No. 7172 on the record is Exh. P. W. 1/3, it was attested on 15‑11‑1945 and the order of the Revenue Officer on this mutation would show that Shah Zaman and Akram, two out of many mortgagees, were present at the time of attestation of this mutation. This order, however, does not suggest that Shah Zaman and Akram mortgagees bad accepted the new arrangement which was shown to have come into being through this mutation. They had rather claimed that the land in suit had been purchased by them. The other mortgagees were even not present at the time of attestation of this mutation. The fact that novation of contract had taken place between the mortgagors and the mortgagees, like other facts, had to be proved by the mortgagors by cogent evidence and as rightly held by the learned two Courts below, there was no such evidence available on the record. The Mutation No. 1772, and for that matter Mutation No. 1997, which in fact appeared to be an arrangement between the mortgagees in respect of the cultivation of different Khasra numbers, did not, therefore, operate as novation of contract between the mortgagors and the mortgagees. the entries in the revenue record after the Settlement of 1948‑49 being without valid basis could not affect the rights of the mortgagees, especially when they remained in continuous possession of the suit land. The oral evidence brought on record rather favoured the long and continued possession of the mortgagees.

13. From the evidence brought on record as surveyed above, it is clear that the land in suit was mortgaged with possession in the year 1906 and till the date of institution of this suit, or even till the making of an application for redemption before the Collector, more than sixty years had passed to such a mortgage. The land throughout remained in possession of the mortgagees and the owners‑mortgagors having not redeemed the land within sixty years had, therefore, lost their right under Article 148 read with section 24 of the Limitation' Act. The findings of the learned two Courts below on this point were correct and had the support of the evidence brought on record. The decision of the learned appellate Court is, therefore, unassailable.

14. As to the authorities referred to by the learned counsel for the petitioners in his arguments, P L D 1955 Posh. 87 is distinguishable because in that case the mortgage entered into before first January, 1920 was redeemed in 1923 and a fresh mortgage with respect to the same land alongwith some additional land was effected the same day which was held to be a new contract of mortgage. Such is not the position here. P L D 1978 S C 242 is equally inapplicable to the facts of this case. The headnote ( f ) of the report in that case is some‑what misleading. The plaintiff in that case bad in the plaint claimed the value of Rs. 42,000 of timber, whereas his stilt for the value of 48,305 cft. was decreed' by the Court without getting his plaint accordingly amended. That was held to be illegal. Here, however, the claimln the plaint is with respect to the entire land but the decree passed by the learned appellate Court is for a smaller share. AA I R 1939 Rang. 321, referred to by the learned counsel for the petitioners, was a case of simple mortgage, but this case is of an utufrtictuary mortgage. Equally inapplicable to the facts of this case is the authority reported as A I R 1939 Posh. 45 because in this case the material issues were framed by the Court and the parties had led evidence thereon.

15. There being no merit in this revision petition, it is hereby dismissed with costs. M.A.K. Petition dismissed.