P L D 1965 (W (PLP)

(1) Whether the suit in the present form does not lie? (2) Whether Mst. Itar Nishan had already alienated the land which was to fall to her share and if so whether defendants 6 to 9 and the legal representatives of defendant No. 10 are not entitled to any share in the suit land? (3) Whether the plaintiffs cannot bring the present suit for the possession of the entire land without joining defendants 4 and 5 as plaintiffs? (4) Whether defendants 1 to 3 have exchanged the land which they got in exchange from the deceased widow Itar Nishan? If so, what is its effect on the present suit? (5) Whether the plaintiffs have not paid Rs. 750 the mortgage money to defendants 1 to 3 and what is its effect? (6) Whether Itar Nishan widow is not entitled to any share in the suit property? (7) Whether defendants 1 to 3 are entitled to claim Rs. 750 the remaining mortgage money which has already been disallowed by the civil Court. All the issues were decided in favour of the plaintiffs and in place of a decree for ejectment a decree for possession of the suit land in favour of the, plaintiffs against defendants Nos. 1 to 3 was passed on payment of Rs. 750 to the defendants. The parties were left to bear their own costs. Defendants Nos. 1 to 3, 10‑A and 10‑C, filed an appeal against the judgment and decree passed by the trial Judge. The learned District Judge decided issue No. 1 against the plaintiffs. He held that instead of a suit for possession a suit for redemption of the mortgage should have been filed. However, the decree so far as the land transferred by exchange was concerned, was upheld, to the extent of 73/112 share. The learned District Judge held that under section 3 of the Shariat Application Act, 1948, the heirs of Mst. Itar Nishan were also entitled to a share. The plaintiffs have filed this second appeal challenging the finding of the lower appellate Court in so far as their suit for possession of Khasra No. .5631 /5090 has been dismissed as not being in proper form.

2. It is urged y the learned counsel for the plaintiff appellants that the mortgage effected by Mst. Itar Nishan had merged into the decree passed by the learned District Judge in the earlier suit for declaration and that the present suit was by way of a consequential relief after the death of Mst. Itar Nishan when the cause of action for taking possession arose to the plaintiff appellants. That the only remedy open to the plaintiff-appellants was to sue four possession on the basis of the earlier decree and that they could not sue for redemption of the mortgage which no longer subsisted and had been displaced by a decree of the Court passed under section 42 of the Specific Relief Act. The learned counsel for the respondents contended that the effect of the decree was that the mortgage amount was reduced from Rs. 1,500 to Rs. 750 and that the only course open to the 'plaintiff appellants was to file a suit for redemption and that the present suit had been rightly held to be defective in form. The learned counsel for the plaintiff‑appellants cited Khizrat Muhammad and others v. Ghulam Muhammad and others (P L D 1962 Lah. 492), but this authority has no application to the facts of the present case. The learned counsel for the respondent has failed to cite any authority, in support of his contention. However, the learned counsel for the respondents admitted that the plaintiff‑appellants could nave prayed for an amendment of their suit and thus converted the suit into a suit for redemption and in that event the plaintiff‑appellants would have been entitled to get a decree for redemption of the mortgage. It is admitted that the plaintiff‑appellants have already deposited Rs. 750 for payment to the defendants. Thus the objection is of a purely technical nature. It is a device on the part of the defendants to continue in possession of the land which they are not entitled after the death of Mst. Itar Nishan especially when the plaintiff appellants have already deposited Rs. 750 for payment to them. I am not inclined to give effect to such a technical objection. Moreover, I am absolutely clear in my mind that after the decree in the decretal suit was passed the mortgage merged into the decree and the only course open to the plaintiff‑appellants was to file a suit for possession on the basis of the decree already passed in favour of some of the reversioners of the husband of Mst. Itar Nishan. If a mortgage is effected by a limited owner and before the limitation for filing a suit under section 42 of the Specific Relief Act expires the limited owner dies the reversioners will have a cause of action to file a suit for a declaration with a further consequential relief for possession, in such a case the defendants cannot urge that a suit for possession did not lie and that the reversioners should first obtain a declaration and then file a suit for redemption for the amount which is ultimately held to have been spent on legal necessity. The learned counsel for the respondents frankly conceded that in such an eventuality a suit for possession would be competent. I consider that the same rule would apply in a case where the reversioners had already obtained a decree for a declaration. After the death of the limited owner or the termination of his limited estate the reversioners could be entitled to file a suit for possession on the basis of the earlier decree and they, cannot be obliged to file a suit for redemption.

3. In view of what has been stated above, I reverse the 'the learned District Judge on issue No. 1 and hold that the 'suit as filed, was in proper form. The finding of the trial Judge on issue No. 1 is restored. 4. 'The learned counsel for the plaintiff‑appellants frankly conceded that the heirs of Mst. Itar Nishan under the Shariat Application Act, 1948 would be entitled to a share in the land in dispute. The learned counsel prays that a decree be passed to the extent of 73/112 shares from field No. 5631/5090 on payment of the proportionate amount out of Rs. 750 which comes to 447‑4‑

0. I accept this appeal and decree the suit of the plaintiff‑appellants in terms indicated above. The plaint if appellants will be entitled to get their costs throughout from the contesting defendant respondents. K. B. A. Appeal accepted.