2005 PLP 142 (YLR)

(1) Whether the suit is not maintainable under preliminary objection No.3 of the written statement? OPD (2) Whether the valuation of the suit for the purpose of court-fee and jurisdiction is incorrect, if so, what is the correct valuation? OPD (3) Whether the plaintiffs have no cause of action to file the suit? OPD. (4) Whether the suit is within time? OPP. (5) Whether the plaintiffs are entitled to get the decree for redemption? OPP. (6) Relief. Evidence of the parties was recorded. The learned trial Court came to the conclusion that the period of 60 years having expired, the equity of redemption stands extinguished and accordingly dismissed the suit. The petitioners filed a first appeal. It was heard by a learned A.D.J., Dera Ghazi Khan. Now the learned A.D.J. reversed the said findings of the learned trial Court and found the suit to be within time. However, he proceeded to hold that since the mortgagee rights were first transferred in favour of the Central Government and then in favour of one Ibrahim from whom the respondents purchased the property and since Ibrahim and the Central Government C had not been impleaded, the suit is liable to be dismissed. Accordingly, he dismissed the appeal on 28-4-1992.

2. Learned counsel for the petitioners contends that in view of the pleadings of the parties and no objection at all as to the non-impleadment of any necessary or proper parties, the petitioners could not have been non-suited by the learned A.D.J. The learned counsel for the respondents, on the other hand, supports the impugned judgments and decrees.

3. I have gone through the copies of the records. Now it stands admitted on record that the land was owned by the predecessor-in-interest of the petitioners who mortgaged the same in favour of the non-Muslim evacuee vide Mutation No.176 (Exh.P.1) in the year 1898. The non Muslim left Pakistan in the wake of independence of the country. The learned A.D.J. has, therefore, rightly held the suit to be within time and his findings are fully supported by the judgments of the Honourable Supreme Court of Pakistan as also of this Court in the cases of Samar Gull v. Central Government and others PLD 1986 SC 35, Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and .2 others PLD 1971 Lahore 77 and Muhammad Shafi v. Ghulam Qadir and others PLD 1978 Lahore 71.

4. Now coming to the reasoning of the learned A.D.J. in dismissing the appeal and consequently the suit, there is no denial that the ultimate purchasers were the respondents. It were the respondents who claimed to have become the owners because of the extinguishment of equity of redemption by efflux of prescribed time of 60 years. To my mind, neither the Central E Government nor the said allottee who had long gotten rid of the land which was being held by the respondents were either necessary or proper parties. Once it is held that the equity of redemption is alive then by virtue of section 59-A of the Transfer of Property Act, 1882, the petitioners were the mortgagors and the respondents were the mortgagees and there was no bar at all in ordering redemption of the land.

5. For what has been discussed above, this civil revision is allowed as both the learned Courts below have acted without jurisdiction while dismissing the suit filed by the petitioners. Both the impugned judgments and decrees are set aside and the suit of the petitioners is decreed as prayed for without any orders as to cost.

6. I may note here that according to the mortgage mutation, the land was mortgaged for a sum of Rs.74-Annas

12. Admittedly, the mortgage was with possession and the respondents are in possession. Admittedly, half of the land was got redeemed by Ali Muhammad and Imam Bakhsh sons of Usman. This leaves half share of the petitioners. They are directed to deposit a sum of Rs.38 into the trial Court within two months. Upon the said deposit being made, the respondents shall deliver possession of the land to the petitioner failing which the decree for possession will be executed. M.I./J-42/L Revision accepted.