2011 MLD 902 (PLP)

MUHAMMAD KHALID MEHMOOD KHAN, J.

The petition filed a suit for declaration against respondents claiming that they are legal heirs of Fateh Muhammad deceased and are in possession of 1/6th share of land comprising of Khewat No.73 measuring 12 kanals as per copy of register record of rights for the year 1985-86 in village Jabi Tehsil Khushab. They became the owner of said land as the respondents have failed to get it redeemed from Mortgage charge within the statutory period of sixty years and as such the respondents' right of redemption came to an end. The petitioners averred in the plaint that on 23-8-1924 Mutation of Mortgage No.3099 was attested in favour of Wasawa son of Gulmir. After that Mutations Nos.2308 and 7490 of mortgage were attested on 1-3-1937 and 30-10-1937 respectively. The right of respondents to get the property redeemed exhausted on 23-8-1984. The respondents have filed a suit for declaration against the predecessor-in-interest of petitioners to the effect that they have paid the mortgage money and their property stand redeemed. The said suit was dismissed on 18-11-1995, the appeal against judgment dated 18-11-1995 was also failed on 12-9-2000.

2. The respondents filed their written statement and contested the suit by raising preliminary objections as to cause of action, estoppels, maintainability and that repeal of section 28 of the Limitation Act, 1908; claiming that limitation for redemption of mortgage is no more in existence. It was specifically alleged that they are possession of the suit-land and their right of redemption is alive.

3. Out of the divergent pleadings of the parties, the learned trial Court framed the following issues:-- ISSUES (1)? Whether the plaintiffs are owners in possession of the suit-land? OPP (2)? Whether the plaintiffs have no cause of action? OPD (3)? Whether the plaintiffs have no locus standi? OPD (4)? Whether the plaintiffs are estoppel by their own words and conduct to file the suit? OPD (5)? Whether the suit is not maintainable in its present form? OPD (6)? Whether the suit is time-barred? OPD (7)? Relief?

4. Both the parties adduced their respective evidence learned trial court dismissed the suit vide judgment and decree dated 5-6-2003. The petitioners assailed the said judgment and decree through an appeal which too was dismissed, vide judgment and decree dated 5-1-2004. Hence, the present petition.

5. Learned counsel for the petitioners submits that both the learned courts below have failed to appreciate the evidence adduced by the petitioners and as such the judgment and decree of both the courts below suffers from misreading and non-reading of record. Learned courts below have wrongly relied upon the judgment Maqbool Ahmad v. Government of Pakistan (1991 SCMR 2063). He further submits that Article 28 of Limitation Act, 1908 was meant for adverse possession whereas the petitioners; suit was for foreclosure of mortgagee rights. He further submits that judgments of both the courts below are based on surmises and conjectures.

6. Learned counsel for the respondents supported the judgments of two courts below and mainly stress on the point that after repeal of Article 28 of Limitation Act, 1908 in terms of judgment Maqbool Ahmad v. Government of Pakistan (1991 SCMR 2063), there is no limitation provided for redemption of mortgage. He submits that provisions of Article 148 of Limitation Act, 1908 are not attracted in the present case.

7. Heard. Record perused.

8. It is an admitted fact between the parties that property subject-matter of the suit was mortgaged by the predecessor-in-interest of petitioners in favour of predecessor-in-interest of respondents. Their predecessor-in-interest filed a suit for declaration to the effect that they had paid the mortgage money Rs.100 and mortgagers have restored the possession to them and as such the mortgage stand redeemed but their suit was dismissed by the learned Civil Court on 8-12-1995 holding that payment of mortgage money has not been proved, the appeal thereagainst was also dismissed on 12-9-2000, these documents are available on record as Exh.P6, Exh.P8 and Exh.P

9. The learned trial Court as well as learned appellate Court while dismissing the petitioners suit has relied on Article 28 of the Limitation Act, 1908 in terms of the judgment of Hon'ble Supreme Court of Pakistan titled Maqbool Ahmad v. Government of Pakistan (1991 SCMR 2063) and has not considered the Article 148 of Limitation Act. It is an admitted fact that Article 28 of Limitation Act, 1908 before its repeal was for setting the issue of adverse possession, the said article was removed from the statuary book in terms of judgment ibid vide Limitation Amendment Act, 1908 published in official Gazette dated 1840-1995. The right of redemption of the mortgage charge is available to mortgagor under section 60 of the Transfer of Property Act. The limitation provided for redemption of mortgaged property is covered under Article 148 of the Limitation Act, 1908 which is read as under:--

148. Against a mortgagee to redeem or to recover possession of immovable property mortgaged. Sixty years When the right to redeem or to recover possession accrues:? Provided that all claims to redeem arising under, instruments of mortgage of immovable property suitable in Lower Burma which had been executed before the first day of May, 1863, shall be governed by the rules of limitation in force in that Province immediately before the same day.

9. The petitioners claim in suit is that they are in possession of mortgaged property; the respondents have failed to get the property_ redeemed within the statutory period of sixty years as provided under Article 148 of the Limitation Act, 1908. One of the petitioners when appeared in witness box, he categorically admitted as under:--

10. From the deposition of one of the petitioners, it is an admitted fact that petitioners are in possession of suit land. Now the question arose how the petitioners/plaintiffs were dispossessed and how the respondents came into possession of suit land. Both the parties tried to establish their respective physical possession of the suit land for establishing their right against the mortgaged property. It is an admitted fact that earlier suit filed by the respondents for redemption of mortgage was dismissed. The perusal of earlier litigation between the parties shows that the respondents claim was that they had paid the sum of Rs.100, the mortgage money but were unable to establish the factum of payment of Rs.100 to the mortgagee and on that sole ground the suit was dismissed. The appellate court has not discussed the evidence in the said suit and just affirmed the judgment passed by the learned trial Court and after dismissal of respondents' suit the property remained under mortgage charge of petitioners. One of the petitioners in his deposition on oath admitted that the possession of suit land is with the respondents, the said witness also admitted that an ex parte decree was passed in favour of respondents but it was not made clear what was that decree. The said ex parte decree was admitted by P.W. but the same was placed on record. Both the learned courts below have not examined the documents available in record and only considered the contention of the parties with reference to Articles 148 and 28 of the Limitation Act, 1908. Both the parties have also not assisted the Court properly. Learned counsel for the petitioners continued to argue the case on the legal preposition of law that if the mortgagee has not filed a suit for redemption within time, he will lose his proprietary rights over the property and the mortgagee who is in possession of land by prescription would be deemed to be owner of property. Thus the argument of learned counsel for petitioners was that a suit for declaration was maintainable. The learned counsel relied on a judgment of Hon'ble Supreme Court of Pakistan Ismail and 22 others v. Rehmat Ali and 15 others (1993 SCMR 92). In the said judgment the Hon'ble Supreme Court of Pakistan by relying on judgments Lala Hem Chand v. Lala Pearey Lal and others (AIR 1942 PC 64), Ram Brich Singh and others v. Mt. Sonjhari Koer (AIR 1920 Pat. 538) and Nado Khahar and another v. Sri Bhup Narain Singh (AIR 1935 Pat. 164) it held as under: "Property in question, having not been redeemed within period of limitation, mortgagors had lost their right to redeem the same and their title to hold it had come to an end. Mortgagees were thus, entitled to grant of relief for a declaration that they having remained in possession for more than sixty years had become owners of property in question, and as a consequential relief were entitled to decree for possession"

11. There is no cavil in the above said preposition of law but in the present case a document is available on record as Exh.D

1. It pertains to Mutation No.892. The said document shows that decree for redemption of mortgage was passed by a competent court of law in the year 1989 against the payment of Rs.100 mortgage money. The title Of said decree and other particulars are available in the said document are shown as number of suit as 386, date of decision is 24-9-1989, name of Court, Ch. Muhammad Anait Civil Judge, name of parties Muhammad Akram and others v. Mian Muhammad and others decree in favour of Muhammad Akram etc. On the basis of said decree, the Revenue Authorities on 22-12-1981 attested Mutation No.892 as under:-- AC-II?????????????? 22-12-1991

12. It seems that this document was not pointed out by any of the parties to the learned courts below or the learned courts below have failed to examine the said document. The petitioners are in possession as admitted by P.W. the decree dated 24-9-1989 is also admitted by P.W. but he denies the attestation of document on the basis of such decree. The Mutation No.892 (Exh.D1) shows that suit land was redeemed through a decree of court and mutation was attested on 22-12-1991 i.e. the reason, the respondents as per admission of petitioners are in possession of suit land.

13. The other aspect of the case is even if we accept that suit property was not redeemed within the statuary period even the suit for simple declaration was not maintainable specially when petitioners are admitting that possession of suit land is with the respondents; the petitioners suit on this count also fails.

14. As the suit land was redeemed and as such the suit in hand for declaration was not maintainable. Both the courts below have failed to consider the said material aspect of case and fallen in error while deciding the suit on the basis of Article 28 of Limitation Act, 1908 which was definitely not relevant in the circumstances of the case. The suit of petitioners however fails but on the above said grounds.

15. The upshot of the above discussion is, the petition fails and is dismissed. A.R.K./M-70/L??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.