1988 PLP 815 (CLC)

Q. Muhammad Jamil for Petitioners. M. Muhammad Younas Shah for Respondents. Date of hearing: 20th January, 1988. This revision petition is directed against the judgment and order of Additional District Judge, Swabi dated 21‑9‑1980 whereby the plaintiffs /petitioners' appeal against the judgment and decree of Civil Judge, Swabi dated 9‑6‑1977, was dismissed.

2. Facts of the case briefly stated are that on 3‑4‑1973 Dilawar and his brother Sardar Bahadur Khan sons of Sher Bahadur instituted suit No. 123/1 in the Civil Court against Sher Afzal Khan and others for possession by redemption of land measuring 12 kanals bearing Khasra Nos.111/1777 to 1856, 1858 to 2189, 2219 to 2235 according to the jamabandi for the year 1969‑70, previous Khasra Nos.1806 and 1831 situated in Moza Topi, Tehsil Swabi on payment of mortgage amount. It was alleged that the suit property was mortgaged with possession to one Dilbar son of Ghulam Rasool for the sum of Rs.1,

000. That in spite of thorough search, the mutation creating the sub mortgage in favour of the defendants/ respondents could not be traced. However, it transpired that through mutation No.1142 attested on 31‑3‑1909 the land then bearing Khasra No. 1806 measuring 5 kanals was redeemed. Subsequent revenue record regarding the land i.e. the jamabandi of the years 1909‑10 and 1915‑16 are not available.

3. In contesting the suit, the defendants raised several pleas including that of limitation. It was stated that through mutation No. 3077 attested on 2‑2‑1918 mortgage amount was increased in respect of both the khasra numbers. Therefore, it would not amount to novation of the original mortgage and would not give a fresh start of limitation to an already existing mortgage. The learned trial Court while giving its finding on issues Nos.l to 3, pertaining to the effect of non‑filing of the mortgage mutation with the plaint, limitation, and the defendants' ownership of the suit land on the expiry of period of sixty years as mortgagees, respectively, came to the conclusion that mutation No.3077 attested on 2‑2‑1918, that of increase in the mortgage amount, was not relevant and that subsequent mutation dated 13‑3‑1982 being not an acknowledgement, accordingly dismissed the suit it having not been instituted within the limitation. The relevant observations in this respect are as follows:‑ "The disputed land was mortgaged to Mansoor Khan prior to 31‑3‑1909 and was redeemed by the mortgagee from sub mortgagees. Muhammad Hussain and others vide 'mutation No.1142 but only one Khasra number 1806 was mentioned in that mutation and contract between Azim Khan owner and Mansoor Khan remained same. The Ex.P.W.2/2 mutation No.3076 dated 2‑2‑1918 by which Mansocr Khan redeemed his rights from Dilbar Khan mortgagee shows that another mortgage mutation was attested earlier to mLtatior. No. 3076, between 1909 and 1918 regarding additional area bearing Khasra No.1831 which is not on the file the burden lies on plaintiff to prove this fact that when the first contract was made between the mortgagor and mortgagee, the terms and conditions of their mortgage are riot clear from these documents which are on the file. The Ex.P.W.2/1 mutation No. 3077 only shows the additional amount which is 496 and nothing about the other conditions. The plaintiff contention is this that the time will start from 2‑2‑1918 as the parties entered into a new contract on this date but only faq‑i‑farzai entered and sanction is of no consequence. The time will start from the original mortgage mutation which is not on the file and was created before 2‑2‑1918 or after 31‑3‑1909. If a mortgage mutation remains unredeemed for the period of limitation provided by Limitation Act it matures into ownership and the defendants Nos. 1 to 6 have become owners of the suit land on account of time‑barred mortgage for more than 60 years and the present suit is not within prescribe time. So, the issues are decided against plaintiffs."

4. Aggrieved by the judgment and decree, the defendants went in appeal in the Court of Additional District Judge who dealt with the question of acknowledgement only. However, it was observed that the findings of the trial judge given on all the issues were based or proper appraisal of the evidence while dismissing the appeal.

5. The learned counsel for the petitioners specifically and emphatically raised objection to that part of the judgment of the trial Judge wherein it has been observed that sub‑mortgage in favour of the defendants in respect of khasra No.1806 was created somewhere in the years 1909 to 1918 i.e. before the attestation of mutation No.3077 referred to above. He did not controvert the legal position that it was for the plaintiffs/mortgagors to prove that their suit for redemption was within the time but it was equally the responsibility of the defendants sub‑mortgagees to have proved their possession under subsisting mortgage for more than 60 years of the filing of the suit. Admittedly, the plaintiffs /petitioners are the first mortgagees and the original mortgagors (owner) have lost their right of ownership in the lard. The first mortgagees had sub‑mortgaged the suit land bearing Khasra Nos. 1806 and 1831 before the year 1909 in favour of the defendants. Khasra No.1805 was redeemed through mutation No.1142 from the sub‑mortgagees on 31‑3‑1909 but there is nothing on the record to show that after the redemptiop, khasra No. 1806 was again sub‑mortgaged to the defendants on any particular date through a particular mutation before the year 1918 when mutation No.3077 was attested in respect of both the khasra numbers. In order to find out the actual date and the year of creation of sub‑mortgage of khasra No.1806 in favour of the defendants, the Naib Saddar Qanungo Tehsil Mardan was summoned with the record and examined in Court. He categorically stated that in the Jamabandi of the years 1910‑11 and 1914‑15 relevant in the context of the dispute, the pages regarding the suit Khasra numbers are missing, so much so that even mutation No‑1142, the certified copy of which has been placed on file is not traceable in spite of all his efforts.

6. The only question, therefore, which requires determination in this revision petition as to when Khasra No. 1806 once redeemed from the defendants in the year 1909, was sub‑mortgaged in favour of the defendants. Excepting mutation' No.3077 attested on 2‑2‑1918, that of additional charge, in respect of Khasra Nos.1831 and 1806, there is no evidence whatsoever that Khasra No.1806 was earlier sub‑mortgaged to the defendants beyond the period of 60 years of the institution of the suit for redemption. The mere fact that Khasra NO‑1806 found its place alongwith Khasra No. 1831 in the mutation for creating additional charge would not absolve the defendants from Proving their possession over Khasra No.1806 under mortgage for more than 60 years of the date of institution of the suit. The defendants have failed to prove the creation of sub‑mortgage, of the Ktasra in question, in their favour on any specific date through a mutation or otherwise excepting through mutation No.3077 attested on 2‑2‑1918 pertaining to the creation of additional mortgage charge. This mutation, however, is of no help to the defendants/mortgagees as the plaintiffs' suit for redemption, from 2‑2‑1918, is well within time. Section 148 of the Limitation Act did provide the filing of suit fur redemption within 60 years from the date when the right' of redemption accrues to the mortgagor and the initial burden is on him to prove us subsisting mortgage. However, the date of creation of Sub‑mortgage is a necessary element in that context of the starting point of limitation in suit for redemption, it therefore, must be specifically placed and proved. Findings on the question of limitation by the Courts below are not to have been based on presumption drawn in favour of the defendants if they having remained in possession as sub‑mortgagees for more than 60 years in the absence of date of creation of sub‑mortgage for the first time in their, favour. All presumptions under the law, unless otherwise provided, must be drawn in favour, of the rightful owner of the land and he would be deemed to be in possession of it free from all encumbrances. Any change brought about in the revenue record must be proved to have been validly made and the new entry legally and rightly substituted for the old, one if reliance is placed on it. The suit Khasra No. 1806 having once been redeemed from the sub‑mortgagees, its possession would be presumed to have been redelivered to the mortgagors till it was for the first time entered in the relevant mutation in the year 1918 respecting the creation of additional charge. In this view of the matter, the findings of both the Courts below based on the observation that the original mortgage was created somewhere in between 31‑3‑1909 and 2‑2‑1918 is based on assumptions and conjecture in holding suit of the plaintiffs barred by time.

7. As far as Khasra No.1831 is concerned, it was not redeemed in the year 1909 through the mutation referred to above, and the mortgage remained intact till the attestation of mutation of the additional charge. The plaintiffs' suit regarding this Khasra number was rightly held. barred by time. It may be clarified that the disputed Khasra number which measured 12 kanals is made out of old Khasra No. 1806 measuring 5 kanals 3 marlas and Khasra No. 1831 measuring 5 kanals 17 marlas shown in the mortgage mutation. In the settlement/ consolidation proceedings, the area of both these Khasra numbers was enhanced to 12 kanals. In working out the area of Khasra No.1806 proportionately, keeping in view the increase in the area, the plaintiffs would be entitled to an area measuring 5 kanals 12 marlas out of the suit land total measuring 12 kanals. Accordingly this revision petition is partially accepted, the judgment and decrees of both the Courts; below are modified to the extent that the plaintiffs/ petitioners are' entitled to possession by redemption of the land measuring 5 kanals, 12 marlas out of total land 12 kanals bearing Khasra Nos. 111/1777 to 1856, 1858 to 2189, 2219 to 2235 (new Khasra numbers formed of l Khasra Nos. 1831 and 1806). In the circumstances of the case, the parties are left to bear their own costs. A . A . /601/P Revision partly accepted