1999 PLP 100 (SCMR)

IRSHAD HASAN KHAN, J.

Leave to appeal is sought against the judgment dated 10-3-1996 passed by a learned Single Judge of the Peshawar High Court, Circuit Bench Abbottabad, in Civil Revision No.95 of 1992.

2. The brief facts are that Muhammad Akrarn respondent No. I herein instituted a suit against Khair Ali, the predecessor- in-interest of the petitioners for a declaration to the effect that he being mortgagee or successor-in-interest of the original mortgagee of the land measuring 8 Kanals and 8 Marlas for the last more than 60 years has prescribed title to the suit . land and that the petitioners/defendants have lost their right to redeem the same. The learned trial Court, in view of the pleadings of the parties, issues framed thereunder and evidence led by them, decreed the suit of the plaintiffs vide judgment dated 9-4-1986. The appeal filed by the petitioners herein, was dismissed by the learned Additional District Judge, Abbottabad through judgment dated 7-3-1992. Being dissatisfied, the petitioners filed revision petition, which was also dismissed vide impugned judgment dated 10,-3-1996.

3. Leave to appeal is sought on the ground that the Shariat Appellate Bench of the Supreme Court in the case of Maqool Ahmed v. Government of Pakistan (1991 SCMR 2063), declared the provisions of section 28 of the Limitation Act, 1908 (Act No.IX of 1908) (hereinafter called the Limitation Act) as repugnant to the Injunctions of Islam, therefore, the declaratory decree in favour of the plaintiffs could not have been passed. The presise submission is that section 28 of the Limitation Act having been declared as repugnant to the Injunctions of Islam, there was no reason why a limitation regarding law of mort age should be kept intact notwithstanding the fact that the same was also 1 9 against the Injunctions of Islam as laid down in the said decision of this Court.

4. There is no cavil with the proposition that the Shariat Appellate Court has unanimously held in the said decision that section 28 of the Limitation Act is repugnant to the Injunctions of Islam in so far as it provides for extinguishments of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said property.

5. Be that as it may, learned counsel for the petitioner has overlooked the fact that the decision rendered by the Shariat Appellate Bench in the precedent case, had to take effect from 31st August, 1991 and on that date section 28 had ceased to have effect whereas the instant suit was instituted on 27th April, 1976 and decree was passed on 9-4-1986, therefore, the law laid down in the aforesaid judgments is not applicable to the facts of the present case.

6. Learned counsel for the petitioner next contended that the Courts below should have refused to grant declaratory decree under section 42 of the Specific Relief Act, inasmuch as, the case of the plaintiff was based on immoral claim in view of the observations laid down in the case of Maqbool Ahmed (supra). The plea is misconceived as stated above, the case of Maqbool Ahmed (supra) became operative with effect from 31st August, 1991, therefore, any observations made therein in respect of transactions prior to that date have no relevance-to the facts of the present case. The trial Court has exercised its discretion justly and fairly in granting the declaratory decree in favour of the plaintiff.

7. It was next contended that the findings of the Courts below that the right to redeem has been extinguished is the result of misreading of the evidence on record. Apart from this bald statement, learned counsel for the petitioner was unable to pin-point any piece of evidence which was misread or disregarded while appreciating the same by the Courts below.

8. As to the plea that the mortgage never extinguished because the mortgagees, from time to time, had remained in possession and the receipt of rent/produce of such land of the mortgagees would be taken to be the payment, therefore, acknowledgement of debt within contemplation of section 20 of the Limitation Act, is of no substance. The High Court was right in holding that this plea was never taken in the written statement, therefore, no presumption could be made with respect to this mixed question of law and fact in terms of section 20 of the Limitation Act. Clearly, the High Court was justified in not exercising its revisional jurisdiction under section 115, C.P.C., in favour of the petitioners as the concurrent findings recorded by the subordinate Courts did not suffer from any jurisdictional error.

9. Resultantly, the petition is dismissed and leave refused. A.A./A.93/S Leave refused.