1979 PLP 492 (SCMR)

G. SAFDAR SHAH, J.‑‑The dispute in this case relates to 36 kanals and 3 marlas of agricultural land comprised in Khasra Nos. 1304, 1306 and 1314 situated in village Langara, Tehsil and District Abbottabad. The land in question was owned by late Allababad, the predecessor‑in- interest of the respondents, who vide registered sale deed dated 24‑11‑1909 (Exh. P. A./1) transferred the same in favour of his brother Khanbaz and one Muzaffar in equal shares in consequence of which transfer mutation No. 301 was attested in the revenue record on 22‑3‑1910. The judgment of the High Court would show that late Allahdad subsequently repudiated the said transfer in favour of Khanbaz and Muzaffar. The stand taken by him was that actually he had mortgaged the said but by practising fraud upon him Khanbaz and Muzaffar had given the said transaction the colour of sale. It seems that Khanbaz and Muzaffar accepted the allegation of Allahdad with the result that the said sale transaction was rescinded by them and instead the land was mortgaged to them through a registered deed (Exh. P. W. 2/5) dated 11‑9‑1970. Being unaware of the fact that the land in question was actually mort gaged by late Allahdad with Khanbaz and Muzaffar, one Atta Muhammad filed a pre‑remption suit in the Court of Civil Judge for the pre‑emption of the said alleged sale transaction impleading therein Khanbaz, Muzaffar and late Allahdad as defdndants. The three of them filed a joint written statement in which they alleged that the suit land was actually mortgaged by Allahdad with Khanbaz and Muzaffar and hence the suit was incompetent. Faced with this situation the parties compromised the proceedings and in the compromise deed (Exh. P. W. 2/3) filed by them in the trial Court Khanbaz and Muzaffar accepted Allahdad to be the owner of the suit land; they also admitted to be the mortgagees of Allahdad further that they had sold their mortgagee rights in favour of Atta Muhammad for Rs.

400. It was further agreed that in case Atta Mohd. failed to pay the said amount to Khanbaz and Muzaffar with in a period of one month he would have lost his rights of mortgagee and instead Khanbaz and Muzaffar would continue to be the mortgagees of Allahdad. The judgment of the High Court would show that Atta Muhammad failed to pay the said amount. On 18‑4‑1911 the learned trial Judge, therefore, dismissed the suit of Atta Muhammad. In the events which happened, however, and in spite of the said registered mortgage deed entered into between late Allahdad on the one hand and Khanbaz and Muzaffar on the other, as well as the compromise of the proceedings Khanbaz and Muzafar continued to be shown in the revenue record as owners of the suit land. In order to seek the rectification of the revenue record, the respondents being the legal heirs of Allahdad filed a civil suit against the petitioners for declaration and by way of con sequential relief prayed for the possession of the suit land as mortgagors on payment of Rs. 400 as the mortgage amount. The suit was contested by the respondents and in the result the learned trial Judge framed in the suit 14 issues, the reproduction of which, however, is not necessary. Upon these issues, the parties adduced their respective evidence. But preferring the evidence of the respondents, the learned trial Judge decreed their suit. Feeling aggrieved to the judgment of the trial Court the petitioners went in appeal to the Court of Additional District Judge, Abbottabad, who vide his judgment dated 17‑7‑1967 allowed the same and consequently dismissed the suit of the respondents. Faced with this situation, respondents went to the High Court in Second Appeal which was allowed by a learned Single Judge vide his judgment dated 27‑2‑1.978 and consequently decree their suit. It is in this background that the petitioners have come up to this Court praying for leave to appeal against the Judgment of the High Court. Mr. Nazirullah Khan, the learned counsel for the petitioners has assailed the judgment of the High Court on three grounds: (1) that the learned Judge in the High Court has disregarded the fact that for the last 55 years the petitioners were recorded in the Revenue record as owners of the suit land, and yet no proceedings were taken by the respondents to get the said position rectified within the period of limitation prescribed by law; (2) that late Allahdad and Khanbaz (who was his brother) and Muzaffar, in order to defeat the pre‑emption suit of Atta Muhammad, had colluded with each other by entering into the mortgage deed (Exh. P. W. 2/5) and consequently the said mortgage deed could not affect the ownership rights of the petitioners in the suit land respecting which the revenue record supported them; and (3) that in Goshwara (Exh. D. X.) a number of mutations have been recorded in respect of the suit land from time to time, and yet in the Goshwara in question no reference has been made to the said mortgage deed entered into between late Allahdad on the one hand and Muzaffar on the other with the result that the said deed was nothing but a fictitious document. We are afraid, there is no force in either of these contentions. By a well‑considered judgment in which all the relevant facts relating to the suit land have been carefully marshalled the learned Judge in the High Court has negatived the claim of the petitioners with whose conclusion we respectfully agree. The learned counsel has not disputed the fact that when late Allahdad complained to Khanbaz and Muzaffar that instead of executing a mortgage deed he had been made to execute in their favour a registered sale deed (Exh. P. A./1) entirely fraudulently, the two of them readily agreed, consequently rescinded the said sale transaction and instead got execute from Allahdad a registered mortgage deed of the suit land in their favour of the sum of Rs.

400. It seems that after the execution of the said sale deed in their favour, they were entered in the revenue record as owners which position continued to remain unaltered notwithstanding the fact that Khanbaz and Muzaffar both had rescinded the said sale transaction and instead entered into a registered mortgage deed with Allahdad. In this view of the matter the said revenue entry, therefore, lost its efficacy as it was entered on the basis of sale deed (Exh. A./P. 1) which, however, was put an end to and instead Khanbaz and Muzaffar entered into a registered mortgage deed with Aliahdad accepting his ownership as also that they were the mortgagees. of the suit land. In those circumstances, the judgment recorded by the learned Judge in the High Court seems to be unexceptionable. The learned counsel next argued that the compromise deed entered into between late Allahdad, Khanbaz, Muzaffar and Atta Muhammad in the civil suit filed by the latter in the Court of Civil Judge in 1911 could not confer any rights on the respondents, as the same was compulsorily registrable but was not registered. In that behalf he relied on two judgments of the Lahore High Court. Mst. Bishan Devi and others v. Jagat Singh and others (A I R 1937 Lah. 353) and Fazal Rasul Khan v. Mohd‑ul‑Nisa (A I R 1944 Lah. 394). While dealing with the same contention, the learned Judge in the High Court observed : "This approach on the part of the learned Additional District Judge seems to be wrong. He overlooked the fact that before the compromise reached in Court m Suit No. 1454 of 1910, the suit land was already mortgaged with the defendants through a registered deed (Exh. P. W. 2/5), and this fact was recited in the compromise deed filed in Court. It would, therefore, be obvious that there was no need to register the compromise deed, for already there existed a registered mortgage deed (Exh. P. W. 2/5). For all practical purpose, the aforesaid mortgage deed was a valid document and no excep tion could be taken against it. In my view, therefore, the learned Additional District Judge seems to have been mistaken to hold, in disregard of the existence of a registered mortgage deed (Exh. P. W. 2/5), that the compromise deed filed in Civil Suit No. 1454 of 1910, was registrable and since this was not done, the plaintiffs could not claim to be owners of the suit land. This seems to us to be the correct exposition of law with which we agree. The two judgments relied upon by the learned counsel are distinguish able. In this first judgment what the learned District Judge had done was to decree the suit in terms of the compromise of the parties but the compromise itself had included certain properties which were not the subject matter of the suit. It was for this reason that in the High Court it was observed : , "If the learned District Judge was, however, aware of the fact that the compromise dealt with property other than that included in the suit, he should have passed a decree in accordance with the compromise only in so far as it related to the suit. The method adopted by the learned District Judge was, therefore, clearly wrong." The second judgment also is distinguishable because unlike the present case in which the rights of the respondents were determined and recognized in registered mortgage deed (Exh. P. W. 2/5), in that case the rights of the parties were determined by the compromise agreement itself on the basis of which the suit had been decreed by the Court. Furthermore, the judgment in that case turned more on the language of the order passed by the trial Court decreeing the suit : "Suit compromised and accordingly dismissed." Construing the said order, therefore, the High Court observed : "In the present case, the order really means that because the parties had settled, the suit had to be dismissed. It did not mean that the suit was dismissed on the particular terms arrived at between the parties by their compromise. In that view of the case, it is clear that the document required registration and as it was not registered the view of the learned Single Judge that the compromise was inadmissible is unassailable" The judgment of the High Court would show that in the compromise entered into between Allahdad, Khanbaz, Muzaffar and Atta Muhammad in the civil suit by the latter in 1911, the registered mortgage deed (Exh. P. W. 2/5) was specifically mentioned. If this be so then the judgment relied upon by the learned counsel would rather support the finding recorded by the learned Judge in the High Court in this case because in the said judgment it was held; "Where it is said that a suit is decreed in terms of a compromise, the decree is unintelligible unless the particular compromise is referred to. In fact, the decree involves a reference to the compromise and before the terms of the decree can be ascertained, the compromise must be read. In such a case, it can well be said that the compromise has been embodied and forms part of the decree. In such a case, no registration is required". As to the question of limitation, which is covered by issue No. 2, the finding recorded by the trial Court was that since the suit land had been mortgaged by late Allahdad in favour of Khanbaz and Muzaffar on 10‑8‑1910 (vide registered mortgage deed (Exh. P. W. 2/5), the suit filed by the respondents would be covered by Article 148 of the Limitation Act (where under the period of limitation is sixty years) and consequently the suit filed by the respondents was well within time field more so when the period of twenty, years for which the land was mortgaged had to be added to the said period of sixty years. This seems to be the correct finding recorded by the learned trial Judge to which no exception can be taken. The grievance of the learned counsel, however, is that upon the said question the High Court had recorded no finding although it had been elaborately argued. It is true that the High Court has not recorded any finding on the said question, but this would be immaterial because by examining the finding of the trial Court in that behalf we are satisfied that the contention urged by the learned counsel has no merit in it. This petition, therefore, fails and is dismissed. Petition dismissed.