2000 PLP 433 (YLR)

Judgment of the learned District Judge, Sheikhupura, dated 25‑3‑1977 whereby the appeal filed by the appellant was dismissed by him, maintaining the judgment of the learned trial Court, is the subject matter of this second appeal which arises, in the under mentioned circumstances.

2. The suit land was mortgaged with the appellant by Doulat Bibi for a sum of Rs. 1,

100. Another amount of Rs.1, 800 is stated to have been paid by the appellant in the year 1953, on receipt of which the land was sold to him. A mutation of Sale No.528 is also stated to have been attested on 14‑7‑1953. The entries were thereafter, given effect in. the Jamanbandi of the year 1955‑56 but at the same time the appellant was shown as mortgage of the land. The respondents filed a petition before the Collector for the redemption of mortgaged land under section 3 of‑ the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964. The said application was contested by the appellant which was, however, accepted by the Assistant Collector/Collector, Ferozwala who ordered redemption in favour of the respondents on deposit of Rs. 1,100 which had already been deposited and also ordered that they be put in possession forthwith. This was vide order, dated 18‑3‑1972. An appeal is stated to have been filed against the above said order before the Commissioner who upheld the order of the Collector vide his order, dated 7‑9‑1972. Thereafter, a suit for possession was filed by the appellant in the Civil Court claiming himself to be absolute owner of the suit land. It was contested by the respondents challenging the maintainability of the same as also that the same was time-barred. Necessary issues arising out of the pleadings of the parties, were framed. The learned Trial Court on issue No.2 recorded its findings that the plaintiff should have filed a suit, fore declaration challenging the order of the Collector as illegal, since it had not been done the same was not maintainable in the present form. He, however, allowed tare suit to be amended on payment of Rs.40 as costs. On issue No. 3 as to whether, the suit was time‑barred he was of the view that Article 14 of‑ the Limitation Act was applicable for which limitation of one year was applicable to the, appellant/plaintiff. The suit was accordingly dismissed by him vide judgment, dated 22‑5‑1976 as time‑barred. An appeal was filed by the appellant there against which was dismissed by the District Judge, Sheikhupura vide judgment, dated 20‑6‑1977. The learned District Judge noted that a suit for declaration had earlier been filed by the appellant which, however, was withdrawn by him and in view of the order of the Collector allowing petition for redemption of mortgage filed by the respondents it was imperative for the appellant to have challenged the said order and by filing suit for possession simplicities an attempt to by‑pass the provisions of Article 14 of the limitation Act had' been made. He, thus, concluded that the appellant could not get relief of possession without removing the Collector's order from his way for which purpose the suit should have been brought within a period of one year as prescribed by Article 14 of the Limitation Act. The appeal w4s accordingly dismissed by him. This is a second appeal by the plaintiff.

3. It is contended by the learned counsel for the appellant that although the appellant was initially a mortgage of the land yet he purchased the same thereafter, for which he paid the price and a mutation was also sanctioned in his favour which was given effect to in the succeeding Jamabandi and, thus, the appellant was absolute owner of the suit land. It is, contended that the Collector acted without jurisdiction in treating him as mortgage and ordering redemption of mortgage on the petition filed by the respondents. His contention is that since the order of the Collector was wholly without jurisdiction, therefore, it was not required to be challenged or set aside in the suit and that Article 14 of the Limitation Act was not applicable. He has made reference to certain observations made by the Commissioner in his order, dated 7‑9‑1972 that there was some foul play in the revenue entries. It is contended by him that the entries once made in the Revenue Record could not be altered without any valid basis, therefore. In support of his contention he relies on Punjab Province v. Nisar Ahmad (PLD 1960 (W.P.) Lahore 801) and Hamed Ali and another v. Rahela Khatun and others (PLD 1963 Dacca 634).

4. On the other hand the learned counsel for the respondents contended that. in matters of mortgages and its redemptions it is the Collector who had jurisdiction under the law which he exercised by passing order, dated 18‑3‑1972. It is contended that no objection as to jurisdiction of the Collector was taken before him and that his order unless challenged within a prescribed period of limitation becomes final and conclusive in terms of, section 7 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 for which purpose Article 14 of the Limitation Act was applicable prescribing a period of one year and as the said order was not challenged within that period the simple suit for possession by the appellant was not maintainable. It is contended that the view taken by the two Courts below concurrently on the subject cannot be interfered in the second appeal. It is further contended that initially a suit for declaration had been filed by the appellant which was withdrawn but later on a simple suit for possession was filed to over come the objection of limitation as the suit against the order of the Collector would have been simply time‑barred in view of Article 14 of the Limitation Act. It is further contended (without conceding) that even an order without jurisdiction unless challenged" and declared as such is binding and produce its' consequences. Reliance on S. Sharif Ahmad Hashmi v. Chairman Screening Committee, Lahore and another (1978 SCMR 367), Messrs Capital Farms, Islamabad v. National Development Finance Corporation (PLD 1996 Lahore 99), has been placed.

5. The assumption or jurisdiction in filed by the respondents under section 3 of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 in which the appellant; pleaded that he was in possession as owner on the basis of mutation No.528, dated 14‑7‑1953. He, however, on perusal of the evidence before him came to the conclusion that it has been proved from the evidence produced by the petitioner that the land in dispute belongs, to them and the respondents are in possession as mortgage. He accordingly accepted the petition filed by the respondents and ‑ordered its redemption on payment of Rs.1;100 by the respondents and the delivery of possession to them. In appeal the Commissioner recorded certain observations as to the inadequate entries in the Revenue Record but the order was not set aside by him. The petitioner was aware of the orders who had earlier withdrawn his suit for declaration but this time he filed a suit for possession only cat 5‑4‑1974 almost two years after the order, of the Collector. Without seeking annulment of the order of the Collector through a suit for declaration, simplicitor suit for possession by him was not maintainable.

6. The perusal of the plaint shows that the appellant was conscious of an adverse order passed by the Collector but did not seek the relief of setting aside the same. The reason‑ seems to be quite obvious that a suit for that purpose had become time‑barred. It may be noted that West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 (Act IX of 1964) came into force by repealing Punjab Redemption of Mortgaged Lands Act, 1913. There were identical provisions in the repealed Act of 1913. Section 12 of the said Act provided a remedy to a person aggrieved of the order of the Collector, passed under the said Act to file a suit in order to establish his right before the Civil Court. The question whether relief could be granted without setting aside the order of ‑the Collector and whether Article 14 of the Limitation Act was applicable for such a purpose, came up for consideration in Gangu and others v. Mahanraj Chand and others (AIR 1934 Lahore 384) which, matter was decided by the Full Bench. In the precedent case similar plea was taken as in the present case that the plaintiffs were owners of the land and not mortgages. Rejecting the said plea the Collector passed order for redemption. A suit was thereafter, filed before the Civil Court where from the above questions arose to be considered by the Full Bench. It was observed that the order of the Collector under section 12 (which is equivalent to section 7 of 1964 Act) would be conclusive unless the suit was filed against the order of the Collector and if the suit is decreed the order of the Collector is superseded. It was observed that the form of suit in such cases was immaterial "it is the effect of the decree that has to be considered in order to apply Article 14, Limitation Act". In other words if it is necessary for a plaintiff to get rid of an order made by an Officer of Government, which stands in his way before he can obtain a certain relief and in order to obtain that relief he does not expressly ask for the setting aside of the order but merely for a declaratory decree, still the suit should be deemed to be one to set aside an order falling within the ambit of Article 14. " The Full Bench which had to resolve the point arising in that case came to the conclusion that "the suit is really one to get rid of the Collector's order of 16th November, 1927. Accordingly it was held that the suit was governed by Article 14 of the Limitation Act and it makes no difference that the suit is one for a mere declaration and no relief to set aside the order of the Collector had been asked for in the plaint. There is not a much difference in the circumstances of the precedent case and the present case. Although the appellant in the present case had filed a simple suit for possession which clearly seems to be an attempt to bypass the application of Article 14 of the Limitation Act, yet the two Courts below were fully justified in their conclusions that Article 14 of the Limitation': Act was indeed applicable and the suit was time‑barred.

7. In view of the above Full Bench judgment of this Court on the subject which directly deals with the points arising in this case on an identical subject, the reference to other precedents which proceed on the peculiar facts of those cases is not appropriate. As a result of the above the view taken by the learned District Judge is amply supported by the facts and circumstances of the case and the law applicable thereto. The appeal, therefore, has no merit and is accordingly dismissed. No order as to costs. Q.M.H./M.A.K./S‑6/L Appeal dismissed.