1982 PLP 777 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑Leave to appeal has been sought from the judgment dated 5‑10‑81 of the Lahore High Court whereby a regular second appeal arising out of a suit for declaration and permanent injunction in connection with an immovable property filed by the petitioners/plaintiffs, was dismissed. The petitioners/plaintiffs are the successors‑in‑interest of the original mortgagee to whom the predecessors‑in‑interest of the defendants had mortgaged the suit land in 1914. Sixty years having passed, they filed a suit for declaration that the right of redemption having been lost by efflux of time, they had become the owners of the property. They also sought a per manent injunction that the defendants should not interfere with their posses sion. The suit was dismissed and so was the first appeal filed by the petitioners. Their second appeal in the High Court having met the same fate, they have now sought leave to appeal. The learned counsel for the petitioners has advanced arguments in support of the various questions raised in the petition. His main contention, which is supported by other arguments is that the question of limitation has wrongly been decided. The learned Single Judge in the High Court, while dismissing the peti tioners' second appeal, noted the argument raised in the High Court and dealt with the same as follows: ‑‑ " ...It is urged that the mortagage having been made on 18‑12‑1914, the respondent's suit for redemption, after the expiry of 60 years, under Article 148 of the Limitation Act, had become barred by time and that, therefore, under section 28 of the Act, his right in the suit land stood extinguished. It is correct that on the expiry of period of limitation, the respondent's right to file a suit for possession, in contemplation of section 28 would be extinguished. There is also no gain saying that Article 148 prescribes a period of 60 years for a suit against a mortgagee, for redemption and recovery of possession. It is, however, to be noticed that under Article 148 the limitation starts when the right to redeem accrues to the mortgagor. In order to ascertain as to when such a right accrued to the respondent or for that matter his predecessor‑in‑interest, the terms of the mortgage shall have to be examined. The appellants, however, have not produced the mortgage deed in evidence. It, there fore, cannot be found out as to what were the terms of the mortgage and when the right to redeem accrued to the respondent. The learned counsel could not lay hand on any other document to establish the terms and conditions of the mortgage and that the respondent's right to redeem the mortgage hail become barred by time ." It is admitted that there was a mortgage deed but the learned counsel argued that there was also a mutation, therefore, the terms and conditions of the mortgage should have been discovered from the mutation. It cannot be said that the mutation alone was sufficient to find the terms and condi tions of the mortgage the deed having been withheld by the petitioners all reasonable and lawful presumptions could be raised against them, one being that if the same would have been produced, they might have suffered. The learned counsel also pointed out that the defendant had not served a notice on the petitioners for the production of the mortgage deed, therefore, the defendant was to be blamed in this behalf. Be that as it may, it was the duty of the petitioners to have established the pleas raised by them. In other words it was necessary for the plaintiffs themselves to have produced the mortgage deed. The learned counsel also raised general argument regarding misreading and ignoring the evidence but was unable to sub‑stantiate it. The plea that the defendant had not raised the question on the terms and conditions of deed in their written statements does not need any serious consideration. As pointed out above, it was in the petitioners' interest to have supported their case with the best available evidence and the same having been withheld, the decision taken by the learned Courts below on merits of the case is found to be unexceptionable. The learned counsel also raised the point that although the petitioners had sought a decree for declaration against the respondents, instead the learned trial Court while dismissing the suit granted some relief to the defen dants is that they were allowed to deposit the mortgage amount (Rs. 75) "to get the land in dispute released for the mortgage". This decision was ren dered on Issue No. 7, which reads as follows: ‑ "

7. Whether the defendants are entitled to the release of mortgage after depositing Rs. 75?" It has not been urged nor does it appear from the impugned Judgment that any objection was taken to this Issue. It also appears from the pleadings of the parties that the petitioners had also sought the relief of permanent injunction against the defendants who had repelled the plea in this behalf, in their written statements. That being so, no useful purpose would be served by the grant of leave to appeal on this question alone. The decision of the learned Courts below, in any case being fair, we do not consider it a fit case for grant of leave to appeal. This petition is accordingly dismissed. Petition dismissed.