P L D 1954 Lahore 698 (PLP)

M. R. KAYANI, J.‑This is a Letters Patent appeal by the plaintiffs in a declaratory suit in which they have so far been unsuccessful. The history of the case, as given in the plaint and understood by learned counsel on both sides, is that Mukanda and his nephew Arura sold 90 Kanals 11 Marlas of land in village Paktal of Sialkot District by two registered deeds, dated the 28th of June 1897 and 11th of March, 1908, to Pir Bakhsh who already held it under a possessor y mortgage. It was perhaps for this reason that the entries in the land records remained unaltered. Pir Bakhsh had two sons, Shahab Din plaintiff and Imam Din. The other two plaintiffs, Shukar Din and Naza Din, are sons of Imam Din. Some time in 1926, Ali Muhammad, son of Mukanda, one of the original vendors, applied for the partition of his share, whether in this Court or in land which was joint with the land sold, is not clear. Learned counsel for the plaintiffs told us that this application for partition was resisted by the plaintiffs, who were directed to the Civil Court, but we find from the order of partition (Exh. D. 8) that whatever objection the plaintiffs had was brushed aside and a partition ordered on the 19th of June 1926. There was no direction that the plaintiffs should establish title in the Civil Court, but the plaintiffs did go to the Civil Court and obtained a decree on the 4th of January 1927. We have not been addressed on the contents of this decree as the plaintiffs do not rely on it in their present suit. In any case, this also did not result in any change in the revenue records. On the 12th of July 1943, Ali Muhammad, son of Mukanda, mortgaged 43 Kanals 9 Marlas out of the land in suit to the first three defendants and a mutation was sanctioned in their names on the 22nd of February 1944 The plaintiffs appealed against this mutation to the Collector, apparently on the ground that the land in question had been sold to their ancestors in 1897 and 1908, but the appeal was dismissed. On the 16th of June 1945, the mortgagees applied to the Collector under the Redemption of Mortgages Act for the redemption of the mortgage which, according to the revenue records, existed in favour of the plaintiffs. This application was resisted by the plaintiffs but was accepted by the Collector on the 4th of September 1945. On the 19th of June 1945, three days after the application under the Redemption of Mortgages Act had been made, and apparently without knowledge of this application, the plaintiffs filed a suit for a declaration of title, having been defeated by the Collector's order in mutation on the 28th of June 1944. This was dismissed by the trial Court on the 16th of April 1947 on the ground that the sales of 1897 and 1908 had not been acted upon. It was further held that, in any case, the first three defendants were transferees in good faith. (The other defendants, who were impleaded in the suit, were the heirs of the mortgagor, Ali Muhammad). In appeal, the District Judge, without adverting to the merits of the case, dismissed the suit on the ground that it had become infruc tuous. He held that, after the Collector's order of the 4th of September 1945, allowing redemption, the only remedy to which the plaintiffs should have resorted was a suit under section 12 of the Redemption of Mortgages Act and that, since the preset suit which had been already instituted was not under section 12, it would lead to no useful result. He further observed that "although the declaration is sought in respect of 90 Kanals 11 Marlas of land, still the occasion for this declaration is only the mortgage of 43 Kanals 9 Marlas, dated the 12th July 1943, and it was on account of that mortgage that the plaintiffs‑appellants had come to the Court, and sought the declaration". Thus relief in respect of 47 Kanals 2 Marlas in which the first three defendants were not interested was also withheld. In second appeal, the learned judge in Chambers observed that there were two questions for determination: (1) whether it was incumbent on the plaintiffs‑appellants to bring a suit under section 12 even though the declaratory suit to establish their rights in the property was pending and (2) if the pending suit did not avail them, could they avoid the mischief of section 12 by amending their plaint? (The question of amending the plaint so as to alter the suit into one under section 12 was argued for the first time in second appeal.) The learned Judge then held that a plain reading of the section indicated that a suit had to be specially instituted after the orders of the Collector had been passed and that the next question was whether the Collector's order had become final. He referred to certain rulings, according to which the time limit for such a suit, was: under Article 14 of the Limitation Act, a year, but observed that the question of limitation need not be decided in the present appeal which must fail on another ground not taken in the Courts below. As observed above, section 12 of Punjab Act II of 1913 does require a suit to be brought after the Collector's order has been passed. This suit apparently has not been instituted so far and, in my opinion, the already pending suit has become infructuous in view of the imperative provisions of sections

12. Amendment of the plaint in this suit would not satisfy the requirements of the section. On this short ground the present appeal requires dismissal even though the question whether the Collector's order has become conclusive or not is left open." The question, therefore, is whether the present suit could be regarded as one under section

12. That section reads as follows :‑ "Any party aggrieved by an order made under sections 6, 7, 8, 9. 10 or 11 of this Act may institute a suit to establish his, rights in respect of the mortgage, but, subject to the result of such suit, if any, the order shall be conclu sive." It will be recalled that when the mutation of mortgage by Ali Muhammad in favour of the first three defendants was effected in July '943, the plaintiffs appealed to the Collector and that upon their failure they instituted the present suit for a declaration of their title. The first three defendants, on the other hand, filed an application for the liquidation of the plaintiffs' mortgage. When that application was accepted and an order of redemption made against the plaintiffs, the remedy under section 12 was to file a suit "to establish their rights in respect of the mortgage". In respect of that mortgage, however, they had already instituted a suit, but, as at the time of instituting it they were not an "aggrieved" party, the suit naturally did not purport to be under section 7.2. If the "plain reading" of the section is adopted, as the learned Judge in Chambers has done, the plaintiffs should have instituted another suit and either made a request that it should be amalgamated with the present suit or withdrawn the present suit to the extent of 43 Kanals 9 Marlas which were affected by the mortgage. If the policy of law is against the multi plicity of suits this would certainly appear ridiculous, for if a suit almost identical with a suit which could have been filed under section 12 was already pending, an insistence on the language of section. 12 would lead to absurdity, and we have no doubt that section 12, like any other provision of law, should be so interpreted as to make it capable of yielding a sensible meaning in all contexts. We, therefore, do not hesitate in holding that that the present suit should have been regarded, after the Collector's order directing redemption, as alt suit under section 12 "to establish the plaintiff's rights in respect of the mortgage". The reasoning in Gangu v. Mahanraj Chand (A I P 1934 Lah. 384 (F. B.)) may well be adopted in the present case. The plaintiffs the original occupancy tenants, in that case had become owners by purchase from persons in whose favour the proprietors had sold the land. The proprietors had also effected a mortgage and the mortgagee rights had also passed in course of time to the occupancy tenants, who had thus become full owners, The descendants of the proprietors, or the strength of the entries in the revenue records, which had not been changed, as in this case, applied to the Collector under the Redemption of Mortgages Act for the redemption of the mortgage and. although the plaintiffs alleged that the defendants' ancestors had sold the equity of redemption to the predecessors‑in -interest of the plaintiffs, the Collector held the sale to be unproved and ordered redemption. This having been done, the defendants, as landlords, instituted a suit against the plaintiffs as occupancy tenants for the recovery of the rent due to them. This suit was decreed by the Revenue Officer. The plaintiffs thereupon brought a suit asking for a declaration that they were the proprietors in possession of the land, but it was dismissed as time‑barred under Article 14 of the Limitation Act as it had not been brought within a year of the Collector's order of redemption. The question before the Full Bench was whether a suit under section 12 was governed by Article 14 and, if so, whether it makes any difference that the suit is merely a declaratory one and no relief to set aside the order of the Collector has expressly been asked in the plaint. The answer to the first part of the question was in the affirmative, to the second in the negative. In dealing with the second part of the question, which interests us here, it was argued before the Full Bench that the suit having been instituted as a result of the decision of the Revenue Officer in the rent suit, was not one under section 12 of the Act as the plaintiffs had not prayed that the order of the Collector be set aside. "This argument", observed Tek Chand J. who wrote the judgment is entirely fallacious and I have no hesitation in rejecting it. The plaintiffs claim to be owners of the land by virtue of the unregistered sale‑deed of 1905. This sale‑deed was relied upon by them before the Collector and on its strength it was contended that defendants 1 and 2 had lost their right of redemption. The Collector held the deed to be inadmissible in evidence and finding that the relationship of mortgagor and mortgagee was still subsisting between the parties, ordered redemption. In consequence of this order the mortgage was redeemed and mutation effected accordingly. In the present suit the plaintiffs want to be declared owners, and again rely on the same unregistered sale‑deed. The suit is therefore in reality and substance one to set aside the order of the Collector, and in my opinion it makes no difference that a prayer to that effect is not expressly made in the plaint. * * * * * * It is no doubt true that the immediate cause for bringing the suit is stated in the plaint to be that defendants 1 and 2 as landlords obtained a decree for rent against the plaintiffs, but this again makes tic difference, for so long as the Collector's order was not vacated by a decree obtained in a suit brought under section 12, it was conclusive as between the parties on the point that the plaintiffs had not become owners of the land under the unregistered sale‑deed and the proprietary title still vested in defendants 1 and 2, and consequently the revenue authorities were bound to decree the suit for rent. Therefore in this view of the case also, the suit is really one to get rid of the Collector's order." The position is very much similar in the present case. The Collector had passed an order in mutation as a result of which the defendants applied for the redemption of the mortgage in the plaintiff's favour. The Collector again passed an order in favour of the defendants. This second order would not have been passed if the first order had been in favour of the plaintiffs. In other words, the second order of the Collector in redemption proceedings was based on the first order of the Collector in mutation proceedings. As the mutation proceedings terminated first, the plaintiffs brought a suit contesting that finding and if they succeed in upsetting that finding, the basis for the second finding of the Collector disappears. In substance, therefore, this is a suit under section 12 to establish the plaintiff's rights in respect of the mortgage. The fact that it was instituted before the order came into existence makes no difference to the substance. In, fact, it was necessary to institute a suit within a year, since fey the operation of section 12, the Collector's order in mutation would have become final if it had not been contested in a sui: Upon the second order of the Collector, in the redemption proceedings, if a suit had been filed under section 12, it might well have been resisted on the ground that a previous order of the Collector in respect of the same mortgage had become final; for if such order has no finality, it is idle to prescribe limitation under Art. 14 for a suit "to set aside any act or order of an officer of Government in his official capacity." To use the term "infructuous" for such a suit would he to use the term lightly. We accept this appeal with costs in this Court as also in the Court of the District judge and remand the case to the District judge for a decision on merits. A. H. Appeal accepted.