2002 PLP 3708 (YLR)

(2) Whether the plaintiffs have become owners of the suit‑land as mortgagee for more than 60 years? OPP. (3) Whether the suit is hit by principle of res judicata? OPD. (4) Relief.

5. The suit was decided by the learned Civil Judge and in appeal the case was remanded by the learned Additional District judge on 27‑5‑1991, by upholding the finding of the learned lower Court on Issues Nos. 1 and 2‑A. The case was remanded to decide the Issue No. 2 only and in post‑remand proceedings, the learned Civil Judge while recording the finding of Issue No. 2 observed that, The plaintiffs had become owners on 1‑7‑1957 after the lapse of 60 years. There is no objection on behalf of the defendants in respect of the description of property. So, it is proved that the land mortgaged by the predecessor‑in‑interest of the defendants on 1‑7‑1897 in favour of the plaintiff is the same as mentioned in the Para. 2 of the plaint. In view of above discussion, the plaintiffs have proved that they have become owners of the suit‑land due to maturity of mortgage after the expiry of 60 years."

6. On appeal filed by Allah Lok etc. respondents/defendants, the finding of the learned Civil Judge on Issue No. 2 was reversed by accepting the appeal by the learned Additional District Judge vide his order dated 27‑5‑1991 and consequently, the suit of Allah Wadhaya etc. petitioners plaintiffs was dismissed.

7. The learned counsel for the petitioners contends that the right of the respondents‑defendants to get the mortgage land redeemed had extinguished after the lapse of 60 years under Article 148 of the Limitation Act, therefore, the petitioners plaintiffs had become owners in possession of the land in dispute and the well‑reasoned judgment and decree of the learned trial Court dated 3‑10‑1989 has been illegally set aside by the learned Additional District Judge by the impugned order dated 27‑5‑1991 by mis interpreting the provisions of section 60 of the Transfer of Property Act read with Article 148 of the Limitation Act.

8. On the other hand, the learned counsel for the respondents contends that the defendants‑respondent's predecessor mortgaged the land in favour of the petitioners on 1‑7‑1897 and therefore, the defendants had the right to get the land redeemed in accordance with the mortgage deed dated 1‑7‑1897 (Exh. P.1). The learned Civil Judge illegally decreed the suit of the petitioners‑plaintiffs therefore, appeal has been rightly accepted by the learned Additional District Judge vide his impugned order dated 27‑5‑1991.

9. The controversy between the parties in this case involves around the interpretation of section 60 of the Transfer of Property Act No.IV of 1882 and Article 148 of the Limitation Act, 1908, which are reproduced as under :‑ "

60. Right of mortgagor to redeem‑‑‑At any time after the principle money has become due; the mortgagor has a right, on payment of tender, at a proper time and place of the mortgage money to require the mortgaged; (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgaged; (b) where the mortgagees in possession of the mortgaged property, to deliver possession. thereof to the mortgagor, and (c) at the cost of the mortgagor either to re‑transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been. effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgaged; has been extinguished: Provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court. Against a Mortgaged to redeem or to recover possession of immovable property mortgaged. Sixty years When the right to redeem or to recover possession accrues. Provides that all claims to redeem arising under instruments of mortgage of immovable property situate in lower Burma which had been executed before the first day of May, 1863, shall be governed by the rules of limitation in force in that province immediately before the same day.

10. The mortgage deed in this case was registered on 1‑7‑1897. If the period of limitation under Article 148 of the Limitation Act, 1908, is taken from mortgage deed dated 1‑7‑1897, than the right to redeem or to recover possession had expired on 1‑7‑1957 by the flux of time. It is apparent from Column No 3 of the Article 148 of the Limitation Act that limitation would start running from the date when the right to redeem or recover possession accrues, therefore, in case where fixed period for right to redeem or, recovery possession is mentioned in the mortgage deed, the mortgagor cannot redeem earlier than the expiry of the fixed period. In the absence of any such a condition entitling mortgagor to redemption during the mortgage a right of redemption can only arise on the expiry of the statutory period. In this view, issue can be resolved on interpretation of a document in a particular case. Where there is nothing on the record to show that any date for payment of mortgage money is fixed in the original mortgage deed. The limitation under Article 148 would start running from the date of mortgage deed is executed. In case reported as Abdul Karim v. Ghulam Nabi (PLD 1979 SC (AJ&K) 74, it has been ruled that where there is nothing on the record to show that any date of payment of mortgage money is fixed in the original mortgage deed, the limitation under Article 148 would start on the execution of the mortgage.

11. On the touchstone of the Article 148 of the Limitation Act and the case law referred above, mortgage‑deed dated 1‑7‑1897 which is not disputed between the parties has been examined. It has been agreed between the parties as follows:‑‑

12. The learned Additional District Judge has interpreted the above statement in mortgage‑deed Exh. P.1 and observed on the basis of the case reported as Habib Ullah v. Mehmood (1984 CLC 309), that the mortgage executed on 1‑7‑1897 could not be redeemed as the mortgage land was for 24 years, therefore, right to redeem would accrue to the mortgagor in the year 1954. The limitation will not run from the date of mortgage deed but it will run from the date when the right to redeem accrues to the mortgagor. If the mortgage is to take as 24 years according to the learned counsel for the respondent as held by the learned Additional District Judge, it would only mean that the mortgagor had undertaken not to redeemed the land provides a period of 24 years for the payment of mortgage money, and the mortgagor's right to redeem was available to them after expiry of 24 years and not before. Since, the defendants had not redeemed the property within 24 years mentioned in the mortgage deed dated 1‑7‑1897 (Exh. P.1), they had the right to get the redemption of the land within 60 years which lapse on 1‑7‑1957. There is an order of the Collector dated 21‑10‑1967 which was set aside by the learned Civil Judge vide judgment and decree dated 3‑6‑1972 and appeal filed by the respondents‑plaintiffs was also dismissed by the learned Additional District Judge on 26‑6‑1981 granting permission to the respondents‑defendants to move again to the Collector for redemption of the mortgage land. For this purpose the respondents‑defendants moved an application on 10‑8‑1983 (Exh. D.1) but on the statement of the parties the application was adjourned sine die on the ground that the same will be revived on the decision of the instant civil suit which was filed on 3‑4‑1994 by the petitioners‑plaintiffs. From the above stated facts it is clear that mortgagor had failed to redeem the possession despite expiry of 60 years. Time being a greater factor, principle of equity and good conscience could not be applied specially when mortgagor was non‑suited by the earlier judgment of the learned Civil Judge and the learned Additional District Judge, for filing the application for possession of the mortgaged property, after expiry of statutory period of limitation. Maxim that equity would help vigilant. and not indolent would come into play only if the person conscious of his right becoming vigilant to enforce his right before the right was destroyed could seek aid of natural justice as held in the case of Aman Ullah Khan and others v. Muhammad Ashraf Bajwah and others (2000 C.L.C. 948). The judgment of the learned Additional District Judge Sialkot is result of misreading of mortgage deed dated 1‑7‑1897 (Exh. P.1) and misinterpretation of Article 148 of Limitation Act. The learned Additional District Judge has committed illegality and material irregularity by accepting the appeal of the respondents‑defendants and dismissing the suit of the petitioners‑plaintiffs. Resultantly, this revision petition is accepted. The judgment and decree dated 27‑5‑1991 passed by the learned Additional District Judge, Sialkot is set aside and judgment and decree dated 3‑10‑1989 of the learned Civil Judge Sialkot, decreeing the suit of the petitioners‑plaintiffs is restored with costs. H.B.T./A‑316/L Revision accepted.