P L D 1968 Lahore 258 (PLP)

(i) The petitioner is guilty of suppression of material facts. He filed a civil suit for substantially the same relief as claimed in this writ petition. In that suit, the trial Court after issuing an order of injunction ad interim preserving the petitioner's possession of land re‑called that order and the order of re‑call was confirmed by the learned District Judge, Lyallpur in appeal. (ii) As long ago as December 1963, the Deputy Settlement Commissioner, Toba Tex Singh forwarded the petitioner's case vide diary No. 721 dated 12‑12‑1963, to the Chief Accounts Officer for the issuance of cheque for the mortgaged sum to the petitioner but that the petitioner has contumaciously taken no steps to collect the cheque, to furnish him with an excuse to continue in the possession of the land.

3. Learned counsel for the petitioner did not dispute the facts set out in the first preliminary objection. He, however, tried to explain the petitioner's omission to recite these facts in the writ petition on the ground that since that the civil suit is not maintainable and the petitioner having chosen a wrong forum was not bound to recite these facts in the writ petition. This explanation is scarcely convincing, for it is not denied that the suit is still pending in the Civil Court. This writ petition was filed in September 1965, only after order dated the 1st July 1965, of the learned District Judge, whereby he confirmed on an appeal the lower Court's order refusing temporary injunction to the petitioner. I have no doubt, whatever, that the petitioner deliberately suppressed this fact in order to obtain from this Court an order for the maintenance of status qua, which otherwise might not have been granted to him. Indeed, by suppressing this fact, he was able to persuade this Court to grant him an order for interim stay, and it does no credit to his counsel in this Court, who either connived at the suppression of these facts or did not care to sift the same, which enabled the petitioner, to gain an undue advantage in these proceedings.

4. There is also substance in the second preliminary objection. The petitioner himself has placed on record an application dated 22‑4‑1965 addressed to the S. D. O. (D. S. C.), T. T. Singh, in which the prayer made is that until he is paid a sum of Rs. 3,000 his possession of the land may not be disturbed, and that his mortgagee rights be preserved. This application appears to have been returned to the petitioner with the endorsement, inter alia, that his case had been forwarded to the Chief Accounts Officer vide entry No. 721 dated 12‑12‑1953, in the Dak Behi, for the issue of cheque to him. It is pertinent to observe that in this application the prayer made is not for the payment of the mortgage sum but that the petitioner's possession of the land may not be disturbed till Rs. 3,000 are not paid to him. It was not suggested that the petitioner has made any effort to collect the cheque from the Chief Accounts Officer. The reasons for such in action is not for to seek for it eminently suits the petitioner's interest to remain in possession of the land as long a time as possible and to continue to enjoy its usufruct. In the circumstances, it is not possible to explain the petitioner's failure to collect the cheque from the Chief Accounts Officer, since December 1963, upon any hypothesis other than that, that he wants to hang on to the possession of the land and thereby to frustrate its transfer to respondent No. 2, or transferees from him.

5. Since the petitioner seeks to invoke, what after all is equitable jurisdiction of this Court and is guilty of suppression 4 of material facts, I regard it to be a fit case in which to refuse him any relief regardless of the merits of his case.

6. On the merits of the case too, owing to the recent amendment in law, the petitioner is not entitled to any relief. Learned counsel for the petitioner relied upon the judgment of their Lordships of the Supreme Court in Muhammad Khan v. The Chief Settlement and Rehabilitation Commissioner (P L D 1962 S C 284) and a subsequent Full Bench decision of this Court in Muhammad Yousaf v. The Chief Settlement and Rehabilitation Commis sioner (P L D 1963 Lah.590) in support of his argument that the petitioner's possession as mortgagee of the land cannot be disturbed until the mortgage is fully redeemed notwithstanding the transfer of the land in favour of respondent No.

2. But the argument completely overlooks the subsequent amendment brought about in the relevant law by the insertion of section 14‑A (1) of the Displaced Persons (Land Settlement (Second Amendment) Ordinance, 1962 (Ordinance LXIV of 1962) which was further amended by the Displaced Persons (Laws Amendment) Ordinance, 1961 (Ordinance XIII of 1964), which inter alia, omitted provisos (a) and (b) to subsection and substituted them by a new proviso. The second Ordinance came into force on the 28th December 1964, after the two precedent cases relied upon by learned counsel for the petitioner. Therefore, they are rendered obsolete by the latest amendment in the law in so far as they operate to preserve the possession of non‑evacuee mortgagees as against the claimant displaced person to whom such lands stand transferred. Section 14‑A as finally amended for the material purposes reads:‑-- "14‑A. Allotment of certain lands under mortgage, etc.‑(1) Notwithstanding anything contained in any law for the time being in force or in any judgment of any Court, where a person has been allotted, under any scheme prepared under section 14, any land which was at any time before the com mencement of this Act subject to a mortgage created by an evacuee, the allotment shall be deemed to be valid: Provided that the mortgage‑money due to the mortgagee shall be a charge on such land. The effect of the proviso plainly is to efface the petitioner's mortgagee rights in the land and in their stead to create a mere charge on the land to the extent of the mortgage sum It is a well established proposition that a mere charge does not create any right in the property but creates a right of payment out of the property specified: it is more than a mere personal obligation, for it is a jus ad rem and closely resembles a simple mortgage which gives the mortgagee a mere right of sale in the case of default by the mortgagor but not a right of possession. A mortgage on the other hand is jus in rem and in essence is a transfer of an interest in specific immovable property depending upon its terms which might include right of possession by the mortgagee. Therefore, in my humble judgment after the coming into force of Ordinance X111 of 1964, the petitioner's right of possession of the land has become extinct. Learned counsel for the petitioner also relied upon two unreported Single Bench judgments of this Court in Muhammad Yousaf and another v. The Chief Settlement and Rehabilitation Commissioner Writ Petition No. 1070/R of 1961 and Muhammad Ilyas v. The Chief Settlement and Rehabilitation Commissioner Writ Petition No. 575/R of 1961. The judgment in the first case is dated 30‑10‑1963 and therefore was rendered prior to Ordinance X111 of 1964 and therefore must be deemed to have become obsolete like two precedents referred to earlier in this judgment. The second judgment, however, is dated 26‑10‑1965, in which the newly‑substituted proviso to section 14‑A (1) by Ordinance XIII of 1964 has been noticed; and the learned Judge observed as follows as to its effect on the right of possession by the non‑evacuee mortgagees who as from the 28th December 1964 are mere charge‑holders: "A further question as to whether these charge‑holders can retain possession of land till such time the charge is satisfied, has also been debated before me. Much can be sail for the contentions of either side but as I feel bound by . . . Full Bench decision (Muhammad Yousaf's case), I hold that the allotment made in favour of the various allottees of lands under mortgage are valid and the mortgagees in posses sion can be dispossessed only after the satisfaction of the charge . . . ." If I may say with the greatest respect to the learned Judge, the above observations do not give full effect to the change in the law introduced by substituting new proviso to section 14‑A (1) of the Act by Ordinance XIII of 1964. The Full Bench's judgment in so far as it preserved the possessory rights of the non‑evacuee mortgagees, proceeded mainly on the interpretation of repealed proviso (b) to the section which read as follows:‑-- "(b) where the period of mortgage has expired the mortgage money shall be paid to the mortgage within a period of eighteen months from the commencement of the Displaced Persons (Land Settlement) (Second Amendment) Ordinance, 1962." Considering the effect of this proviso upon the entire provision of the section, the learned Judges of the Full Bench observed: "The main provision only declares the allotment to be valid without saying anything on the question of possession. In the second proviso to the first subsection it is enact that where the `period of mortgage' has expired, the mortgage money shall be paid to the mortgagee within a period of eighteen months from the 7th of June 1962. (The date on which Ordinance LXIV of 1962 came in force). The reference to the `period of mortgage' indicates that this provision is intended to apply to mortgages which by express stipulation could not have been redeemed before a certain period had expired. This is a fairly common type of mortgage. The object in such a mortgage is to guarantee to the mortgagees the enjoyment of the usufruct of the land for a specified period. By making the provision that where the period of mortgage has expired, the mortgage money is to be paid on or before the 6th of December 1963, an anomalous situation has arisen. There is no provision in regard to those cases where the period of mortgage had not expired on the day on which the new provision was made. There may be cases in which there may be several years before that period is due to expire. What did the law‑maker intend with reference to these cases? Did the law‑maker intend to put the mortgagee whose period of mortgage had expired in a position of greater advantage than the mortgagees in whose case the period of mortgage had not yet expired. On the provision as it stands, it does not seem possible to answer these questions." The learned Single Judge also relied upon the above passage for a contrary conclusion, though not without some hesitation. The anomaly created by proviso (b) referred to in the above passage has been removed by means of its omission and now the matter falls to be governed by the provisions of the section as amended by Ordinance XIII of 1964, set forth above. The Legislature must be presumed to be fully aware of the law enunciated by the Full Bench and therefore amended the law to remove the anomaly and to convert the mortgagee rights in all relevant cases to those of mere charge‑holders which as explained above do not include right of possession, or else the amendment of the provision will be entirely in vain which could not possibly have been the legislative intent. On this view of the matter, therefore, the petitioner's only remedy is to apply to the Collector for the payment of the, mortgage amount, under the Settlement of Charges (Land Settlement) Rules, 1962. Indeed as pointed out above, the Chief Accounts Officer has already been advised by Deputy Settlement Commissioner to issue the cheque in favour of the petitioner for Rs. 3,

000. Therefore, all that he needs to do is to collect the cheque.

7. For the foregoing reason there is no force in this writ petition, which is dismissed with costs. A.H. Petition dismissed.