P L D 1984 Peshawar 169 (PLP)

FAIZ MUHAMMAD KHAN, J.‑Khan Aman Khan, petitioner herein, is owner of land measuring 34 Kanals, situated in village Boqa, Tehsil Swabi, District. Mardan, which he mortgaged with possession to Muhammad Siddique, respondent No. 4 herein, through a registered mortgage deed dated 13‑6‑1958, for a sum of 1,500 for a period of sixty years. After creation of mortgage the mortgagee came to possess this land and is still in possession thereof enjoying its usufruct.

2. On 24‑8‑1978 the mortgagor made a petition to Collector, Swabi for the restitution of possession of the mortgaged land under the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 (herein after referred to as the Act). The plea taken up was that since the usufructuary mortgage was created more than twenty years ago and since the possession of the mortgaged land remained with the mortgagee who has been enjoying the usufruct thereof, the mortgagor was, therefore, entitled to the restitution of possession of the mortgaged land without payment of mortgage charge or, in the alternative, on payment of entire mortgage charge or any part thereof, as may be determined.

3. This petition was contested by the mortgagee on the ground that the mortgage being for a fixed term which had not expired, the mortgagor was not entitled to redeem the mortgage or to claim possession of the mortgaged land without payment or on payment of the ‑mortgage charge or any part thereof.

4. The Collector, Swabi, finding that the mortgage was for a fixed period which had not expired, dismissed the petition made by the mortgagor. The matter was taken by the mortgagor in appeal before the Additional Commissioner, Peshawar Division, who, agreeing with the learned Collector, vide his Order dated 8‑1‑1980, dismissed the appeal. The mortgagor was still not satisfied with the result of the proceedings initiated by him and he, therefore, filed revision before the Board of Revenue against the Order of the Additional Commissioner passed in appeal. The revision petition was heard by the learned Senior Member, Board of Revenue, who, agreeing with the concurrent findings of the forums below on the question oaf maintainability of the petition filed by the mortgagor, vide his Order dated 31‑3‑1980, dismissed the revision petition filed by the mortgagor.

5. The mortgagor (Khan Muhammad Aman Khan) has assailed the aforesaid decisions .of the forums below through this constitutional petition. Mr. Atiqur Rehman Qazi, Advocate appeared for the petitioner, Mian Shakirullah Jan, Advocate appeared for respondent No. 4 and the respondents Nos. 1 to 3, who are public functionaries, were represented by Mian Muhammad Ajmal, Advocate (Law Officer). Their arguments were heard.

6. The only contention raised by the learned counsel for the petitioner was that since the disputed mortgage was a subsisting usufructuary mortgage created more than twenty years ago, the petition made by the mortgagor for restitution of possession of the mortgaged land was competent under section 10 of the Act, falling within first portion thereof, and that the forums below were not right in dismissing the same as being premature. The learned counsel contended that the forums below by misconstruing the law committed illegality and failed to exercise jurisdiction vested in them.

7. It is beyond dispute that the Act, though a consolidating law, was' brought into force with a view to providing speedy remedy for the redemp tion of certain mortgages of land. A summary procedure is provided in the Act for dealing with the petition made by a mortgagor for the transfer of possession of the. mortgaged land from the mortgagee to him, and also for dealing with incidental matters. There is a presumption in favour of the proposition that the Legislature while framing the provisions of the Act was fully aware of the general, law already applicable on the subject, which was contained in sections 58, 62 and 83 of the Transfer of Property Act, the principles whereof were applicable before the commencement of the Act in the area with which we are concerned. This law is even now in the field and can be resorted to if the parties so elect. Under the general law the mortgagor has a right to redeem the usufructuary mortgage even on the second day of the creation of the mortgage if such mortgage is not for a fixed period. He shall, however, be‑ required to pay the mortgage money to the mortgagee, and would also be bound to abide by other stipulations contained in the contract of mortgage: In the case of a usufructuary mortgage‑ created for a fixed period, however, the right to redeem accrues to the mortgagor only on the expiry of the period of mortgage. The Legislature was aware of this state of law when it brought the Act on the statute book. It has also to be borne in mind that the Legislature, as of policy, is always reluctant to make a departure from the general law, unless there are compelling circumstances in favour of such departure. When so be the position, then the special law enacted .has to be strictly construed, especially where such law contain provisions penal in nature, as in the Act. If these principles are kept in view, as it should, then there would arise no difficulty in finding out the real intention of the Legislature in enacting the relevant provisions of the Act.

8. Necessary sections of the Act as are relevant for the purposes of this petition are given below : "(10) The mortgagor of any subsisting usufructuary mortgage not less than twenty years old, or of any usufructuary mortgage the period whereof has expired, may present a petition to the Collector for the restitution of possession of the mortgaged land. (11) Where the Collector is satisfied that a petition is not in respect of a subsisting usufructuary mortgage riot less than twenty years old, or a usufructuary mortgage the period whereof has expired, he shall dismiss the petition, recording bit reasons for such order. (12) If the Collector finds that the application is in respect of mortgaged land the possession whereof has remained with the mortgagee for a period of not less than twenty years, or is in respect of mortgaged land the term of the mortgage whereof has expired, he shall notwithstanding anything contained in any other enactment for the time being in force or any contract or decree or order of any Court‑ (a) order that the mortgage shall be extinguished without payment of the mortgage money or any part thereof ; (b). in case of an express contract to the effect that the mortgagee shall be entitled to compensation for improvements made by him in the mortgaged land determine the amount of such compensation ; and (c) where the mortgagee is in possession, direct that the mortgagor be put into possession of the mortgaged land as against the mortgagee and that the title deeds if any, of such land in the possession of the ' mortgagee be restored to the mortgagor."

9. The plain reading of section 10 would show that it contemplates two types of mortgages ; one, the subsisting mortgage not less than twenty year old and other, the usufructuary mortgage the period whereof has expired. I other words, this section deals with two different types of mortgages anal draws distinction between the usufructuary mortgage without fixed period and the usufructuary mortgage for a fixed period. Where the usufructuary mortgage is without a fixed period, the mortgagor may, under section 10 of the Act, apply to the Collector to be put in possession of the mortgaged land if such mortgage is subsisting and is not less than twenty years old. Where;, however, the usufructuary mortgage is for a fixed period, then the mortgagor may make a petition to the Collector for being put in possession of the mortgaged land only on the expiry of the fixed period. This intention of the Legislature is quite apparent from the language employed in this section, In our opinion the two portions of section 10 deal with two types of situations and one portion cannot be enforced at the cost of other. The contention of the learned counsel for the petitioner that even though the usufructuary mortgage may be for .a fixed period which may not have expired but if the mortgage is twenty years old, then the mortgagor would have a right to ask for restitution of possession of the mortgaged land under first portion of section 13 of the Act does not appear to be correct, being not in line with the policy of the law already prevailing and also the Act, which provide to the mortgagor a remedy dependent on his possessing the right to redeem. If he does not possess such right, be cannot have remedy under the Act., Where his right to redeem is temporarily eclipsed, he can avail of the remedy under the Act only after such eclipse vanishes. In other words, he can avail of the remedy under the Act from the date the right accrues to him to redeem the mortgaged land, subject, of course, to the law of limitation. In the intention of the Legislature had been as urged by the learned counsel for the petitioner, then the words "or of any usufructuary mortgage, the period whereof has expired" would not have been inserted in section 10 because the purpose could have been achieved without such insertion. The relief intended to be given by the Act to the mortgagor, in our opinion, was with respect to absolving him of the liability to pay back the mortgage amount, or a portition thereof, and this intention was made manifest by the Legislature by making provision thereto in clause (a) of section 12. of the Act. Further, if we were to accept the argument of the learned counsel for the petitioner, then the conclusion would be inevitable that the Act contains two contradictory provisions in each of the three aforementioned sections. This could not have been intended by the Legislature. Considering it. from other angle, in any proceedings under section 10 two defences are open to the mortgagee one that though the mortgage is subsisting yet it is not twenty years old, and the other that the period of mortgage has not expired. On the plain language employed in these three sections, could it be said that the legislative intent was that the mortgagee should fail if on one ground be cannot successfully resist the claim even though other , ground of defence may favourably be open to him ? We 'would, at least, not accept this interpretation., EDIT THIS

10. Considering the case from all angles, we are of the view that where the usufructuary mortgage is for a fixed period, the mortgagor can apply to' the Collector under section 10 of the Act only on the expiry of the period of mortgage and not before that, even though the mortgagee may have remained in possession of the mortgaged land for more than twCuty years. The view taken by the revenue hierarchy, therefore, appears to be correct and calls fo I no interference.

11. Consequently, this writ petition is dismissed. We, however, make no order as to costs. M. z. wt. Petition dismissed.