P L D 1966 Supreme Court 340 (PLP)

(b) that the order of the Revenue Commissioner was void and inoperative so far as it related to the appellant's right to the mortgage in suit and (c) that the North‑West Frontier Province Restitution of Mortgaged Lands Act XXXII of 1950, being unreasonable was ultra vires, void and inoperative. The trial Court raised, inter alia, the following issues in the suit: (1) Whether the mortgage of 24th April 1924, creates a new mortgage? (2) If the issue No. 1 is proved then could the Revenue Courts proceed under Act XXXII of 1950? (3) Is Act XXXII of 1950 ultra vires of the Provincial Legis lature ? (4) Is the order of the Revenue Commissioner, dated 2nd October 1954, regarding the mortgage of 23rd November 1918, void and ultra vices? (5) Has the Civil Court jurisdiction in the matter? It came to findings against the appellant on all the above issues and held that the mortgages of 1917 and 1918 still subsisted and that the Civil Court had no jurisdiction to set aside the order of the Revenue Commissioner by reason of the bar created by section 11 of the Act XXXII of 1950. This section barred the jurisdiction of the Civil Courts either to entertain any claim to enforce any right under a mortgage declared extinguished under that Act or to question the validity of any proceedings thereunder. The suit was, accordingly, dismissed. The appellant then went up in appeal to the High Court of West Pakistan. During the pendency of these proceedings in the Civil Court, however, the respondents Nos. 1 to 9 filed an application for delivery of possession of the redeemed lands before the Revenue Assistant Commissioner, and he issued a warrant for delivery of possession on the 9th of May 1955, on the deposit of the amount directed to be deposited by the Revenue Commissioner. Against this order also there was an appeal before the Revenue Commissioner and a revision to the Board of Revenue, both of which proved unsuccessful, and mutation was finally attested on the 20th of January 1956. The appellant thereupon filed another suit on the 23rd of December 1956, in the Court of the Senior Sub‑Judge, Peshawar, in which he prayed for a declaration that he was still the mortgagee of the lands and that the orders of the Collector of Peshawar, the Commissioner, Peshawar Division, and the Board of Revenue ordering the delivery of possession of the said lands, were illegal, ultra vires and of no effect. The respondents opposed this suit also and filed an applica tion under section 10 of the Code of Civil Procedure for the stay thereof on the ground that the matters in issue in this suit were directly and substantially in issue in the previous suit of 1955, which had already been dismissed and an appeal therefrom was pending in the High Court. The Subordinate Judge took the view that the subject‑matter of both the suits was the same and ordered the stay of the second suit. Against this order the appellant filed a revision in the High Court, which was numbered as Civil Revision No. 79 of 1958. During the pendency of the appeal and the revision in the High Court Martial Law Regulation No. 64 (West Pakistan Land Reforms Regulation) was promulgated on the 7th of February 1959, and the appellant purported to surrender his mortgage rights in the entire area in dispute, measuring 149 acres, 7 kanals and 16 marlas. One of the sons of the late Nawab of Hoti, namely, respondent Muhammad Khalid Khan, however, retained 76 acres thereof for himself. In these circumstances, a prelimi nary objection was raised in the High Court to the effect that the appeal had become infructuous, as the lands had now vested in the Government free from all encumbrances and neither the Civil Courts nor the High Court had any further jurisdiction, by reason of paragraph 27 of the said Regulation, in respect of any matter which the Land Commission or any officer acting under its authority was thereunder empowered to determine. The High Court after considering the various provisions of the Regulation came to the conclusion that it had no jurisdiction to grant the declarations prayed for by the appellant and, there fore, the suit was dismissed as having become infructuous without any order as to costs. As the appeal itself was dismissed, the revision petition was also considered to have become infruc tuous. It is against this judgment and order that the appellant has come before this Court and it is now contended on his behalf that the Revenue Authorities had clearly no jurisdiction to order the redemption of the mortgaged lands, as the mortgage was clearly one to which the Act XXXII of 1950, did not apply. It is also contended that the mortgage could not fall within the mischief of the Redemption of Mortgages (Punjab) Act, 1913, even if it could be deemed to have been extended to the former N.W. F. P., because the latter Act only applied to mortgages of areas not exceeding 50 acres. In this view of the matter there was clearly no jurisdiction in the Revenue Authorities to make any order with regard to the martgage in question: it is also maintained that the mortgage of 1924, was clearly a new mortgage, because the mortgagees were different, the areas were different and the amounts of the mortgage debts were different. In any event, it is contended that the High Court was not right in treating the revision petition as having become infructuous after the dismissal of the appeal, as the questions for decision in the two suits were not the same. As for the bar under the Martial Law Regulation No. 64 it is said that paragraph 16(2) thereof clearly gave a right to the mortgagee to either enforce his security against the lands retained by the mortgagor under Part III of the Regulation or to have his charge enforced against the compensation payable by Government in respect of the lands resumed, or seek his remedy both against the land and against the compensation. paragraph 16 of the Regulation is in the following terms: "

16. Resumption and vesting in Government of excess land. (1) Land in excess of the area permissible for retention under Part III shall vest in and be resumed by Government free from any encumbrance or charge. (2) Any encumbrance or charge which existed on any land resumed under sub‑paragraph (1) shall be deemed to have been transferred to the land retained under Part III, and also to the compensation payable under paragraphs 17 and 18 to the extent necessary." Learned counsel appearing for the appellant has urged that the Martial Law Regulation does not debar the mortgagor from enforcing his mortgage against the lands retained by the mort gagor and since in the present case the mortgagor has admittedly retained 76 acres of land the appellant was entitled even under the said Regulation to proceed against these retained lands. The suit should have been, therefore, held to be maintainable at least with regard to these 76 acres As for his own surrender of the lands to the Martial Law Authorities it is sought to be contended that this was nothing more than a mere notional surrender, for, the respondents had already obtained possession of the mortgaged lands through the Revenue Authorities and the mutations in their favour had been attested finally as long ago as the 20th of January 1956. The surrender by the mortgagee, therefore, was of no consequence and could not deprive him of his right under paragraph 16 of the Regulation to enforce his security against the retained lands. On the other hand, it is contended on behalf of the respon dents that by making a declaration and surrendering the lands to the Land Commission, the mortgagee had made his election under sub‑paragraph (2) of paragraph 16 of the Martial Law Regulation No. 64 to enforce his charge against the compensation and, as such, by his own act brought himself within the jurisdiction of the Martial Law Regulation. It was now exclusively within the jurisdiction of the Martial Law Authorities to determine the extent of the charge or encumbrance which the appellant seeks to enforce. The Civil Court can no longer, in these circumstances, have any jurisdiction to make any order either with respect to t he mortgaged lands or as to the extent of the claim of the appellant. The Revenue Authorities had ordered redemption on the payment only of Rs. 19,767, whereas the appellant is still claiming that the lands are still subject to an encumbrance and could not be redeemed unless Rs. 76,500 were paid. There is, therefore, a serious dispute not only as to the extent of the charge but also as to the subsistence of the encumbrance itself and the question now is as to which is the authority which can determine this? Can the Courts still deter mine as to whether the encumbrance still subsists or the extent to which it subsists and can be enforced against the retained lands? In support of this contention learned counsel for the respon dents has also relied on the decisions of the Land Commission published in the Land Reforms Manual, Volume I at page

360. Clauses (i), (ii) and (iii) of this decision provide as follows:‑ "(i) In cases where the declarant had surrendered the land under mortgage and the mortgagor was not a declarant then the mortgaged land should remain with the Commission until it is redeemed by the mortgagor. When it is redeemed the mortgage money should be given to the mortgagee after deducting 5 % of the mortgage money as administrative charges. In case a mortgagor fails to redeem the land then the Deputy Land Commissioner should give a notice to the mortgagor to get the land redeemed within a reasonable period. If the mort gagor fails to avail of this opportunity then the land should be sold to the tenants in cultivating possession or, if untenanted, to other entitled persons on the basis of Rs. 8 (rupees eight) per produce index unit or the mortgage amount whichever is greater; (ii) if the mortgagor is a declarant and surrenders the area mortgaged by him then it should vest in the Government free of a mortgage. The mortgagee should, in that case, apply to the Deputy Land Commissioner that his encumbrance may be shifted to the retained land or compensation or both. The Deputy Land Commissioner should, after ‑hearing the parties pass a regular order which will be subject to appeal and revision; and (iii) in cases where both, the mortgagors and the mortgagees, are declarants and the land is surrendered by both of them then that land will vest in Government free of mortgage. It should be offered for sale to the tenants in actual cultivating possession of the same. The owner will get the compensation in the ordinary way and the mortgagee will be entitled to get back his mortgage money out of that compensation. The mortgagee should, in such cases, apply to the Deputy Land Commissioner and get his mortgage money determined which may be paid to him out of the compensation due to the mortgagor. The Deputy Land Commissioner should pass a regular order, after hearing the parties, which will be subject to appeal and revision. If the mortgagees are in cultivating possession of the mortgaged area, they will automatically get the benefit of paragraph 19 of the Regulation and the land will be offered for sale to them in accordance with the Sale Scheme." The first clause clearly contemplates a case where the mortgagee alone is the declarant and the person who surrenders the land under mortgage and in that case the mortgagee can only proceed to enforce his charge against the compensation Again, under clause (iii) where both the mortgagors and mortgagees are declarant, as in the present case, and the land is surrendered by both of them, then that land will vest in the Government free from encumbrance. In this event in respect of the surrendered land the mortgagee will only be entitled to get back his mortgage money out of the compensation by applying to the Deputy Land Commissioner and getting his mortgage debt determined. In the present case, admittedly out of 149 acres only 76 acres were retained by the mortgagor and the rest were surrendered and vested in the Government free from encumbrances. So far as the lands which have vested in Government are concerned it is clear that the civil Court can no longer have any jurisdiction to make any order by reason of paragraph 27 of the Martial Law Regulation

64. The question is as to what is the position with regard to the lands retained by the mortgagor? Learned counsel for the appellant has stated that he would be content to give up his claim over the compensation and to proceed to enforce his charge against these retained lands. This present choice of the appellant cannot, however, now determine the question of jurisdiction, for, even with regard to this retained area the appellant has already made his election by surrendering his rights in the land. His debt, if any, can now only be enforced against the compensation after the question of its extent has been determined by the authority competent to determine the same under paragraph 16 of the Martial Law Regulation. We are, furthermore, of the view that the appellant having once made his election and surrendered all lia mortgage rights in the lands cannot now resile from that position. After his surrender he can clearly have no further rights against the lands, because the effect of the surrender is to extinguish his charge subject only to the provisions of paragraph 16 of the Martial Law Regulate ion and by the procedure laid down by the Land Commission in its notified decisions which have been given the same force as the Regulation itself. Learned counsel for the respondent apprehends that he might be in some difficulty before the Land Commission Authorities, as the Land Commission Authorities have decided to treat only those persons as existing owners whose tames are recorded in the revenue records. In the present case, since the respondents had already got their names mutated Din the records by order of the Revenue Authorities, the appellant would, it is said, have no locus stand before the Land Commission Authorities. We are unable to agree that there is any cause for any genuine apprehension, because the authorities under the Martial Law Regulation have already accepted the declaration filed by the appellant wherein he has, is closed that he was the mortgagee in possession of certain lands, and was surrendering is rights therein. In any event, since this mutation was attested during the pendency of litigation in. a civil Court, this mutation cannot be treated as final. We see no reason to think that the Land Commission Authorities will not permit him to enforce his charge in terms of paragraph 16 of Martial Law Regulation No. 64 read with the decisions of the Commission itself which we have quoted earlier and which are in the nature of policy directions issued from time to time by the Land Commission Authorities. For the reasons given above we have come to the conclusion that the High Court rightly held that it had no longer any jurisdiction to grant the declarations prayed for by the appellant. It is also clear that in this view of the matter even the revision petition had become infructuous. These appeals, therefore, must, in our view, fail and are accordingly dismissed, 'but having regard to the special circumstances of this case there will be no order for costs in these appeals. A. H. Appeal dismissed.