1999 PLP 70 (SCMR)

CH. MUHAMMAD ARM, J.

A brief resume of the facts leading to this appeal, by leave of the Court, are that respondent-plaintiffs brought a suit against the appellant-defendant (and another) for redemption of land measuring 3 Kanals, 2 Marlas located in Khasra No. 1491, Khata No. 104/198 in the area of Mauza Tor Dher, Tehsil Swabi on the payment of Rs.400 as the mortgage money. They alleged that, prior to the Settlement of 1927-28, the suit land bore Khasra No.873/2 and the same alongwith other lands, was mortgaged to one Beerbal son of Lal Chand, a non-Muslim, by their predecessor vide Mutation No.5290 dated 20-5-1922 for Rs.1,

400. Being a simple mortgage, the possession of the suit land remained with them and, afterwards, it, alongwith other lands, was sold to one Muhammad Ibrahim through Mutation No. 2251 dated 23-11-1943. The said Muhammad Ibrahim transferred back all the lands, including the disputed land, vide Mutation No.2287 dated 1-3-1944. Subsequently, through a family settlement evidenced by Mutation No.5069, dated 28-5-1959, the disputed land fell to their share. According to the plaintiffs, the disputed land was transferred to the Central Government vide Mutation No.6418 dated 15-2-1966 and, by it, to defendant No.2/Mst. Ghulam Fatima mother of Ghulam Rasool (impleaded as such through Noor Hassan General Attorney, resident of Sham Ganj, Tehsil and District Mardan) through Mutation No.7181 dated 27-1-1971. Mst. Ghularn Fatima transferred the disputed land in favour of appellant-defendants No.1 vide Mutation No.7183 dated 27-1-1971. This suit was dismissed by the learned Civil Judge, Swabi on 16-9-1971 and appeal was filed, against the said judgment and decree, in the Court of District Judge, Mardan. The respondent-plaintiffs filed an application for the withdrawal of the suit on the ground that as there was evacuee interest involved in the disputed property, hence, they would approach the Court of Custodian Evacuee Property because the Civil Courts have no jurisdiction in such matters. A learned Additional District Judge, Mardan allowed the said application, accepted the appeal, set aside the judgment and decree of the trial Court dated 16-9-1971 and the plaintiffs were allowed to withdraw the suit to seek their remedy before the appropriate forum, vide judgment and decree dated 9-12-1972.

2. The respondent-plaintiffs moved an application before the Collector, Swabi under the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 for the restitution of the suit land without payment of mortgage money or, in the alternative, on payment of mortgage amount of Rs.445. This application was rejected by the Collector on the ground that the mortgage was barred by time. This happened on 24-12-1978.

3. The respondent-plaintiffs made the instant suit, bearing Suit No.539/1, on 16-6-1981, title whereof reads thus:

4. The suit was contested by the appellant-defendant No. I (and Mst. Ghulam Fatima) and on the pleadings of the parties, the learned trial Judge framed as many as 18 issues. After recording the evidence of the parties, the suit was dismissed on 21-9-1982 and so was the appeal of the respondent-plaintiffs by the learned Additional District Judge, Mardan vide judgment and decree dated 12-3-1985.

5. Respondent-plaintiffs succeeded in their Civil Revision No.403 of 1985 before the Peshawar High Court, Peshawar, with the observations that the finding on the question of limitation, under issue No.5 by both the Courts below cannot be sustained. The learned Judge in Chambers held: "...the suit was well within time as there had been acknowledgment of the mortgaged from time to time, the last of which is vide Mutation No.2287 attested on 1-3-1944 but even if the date of the original mortgage is taken into account i.e. 20-5-1922 for the institution of the suit for redemption even then under Article 148 of the Limitation Act the suit of the petitioner(s) was within time". The findings of the learned Additional District Judge, on issue No.5, were set aside while those on issues Nos.2 and 3 were maintained and the cause was remanded to the Appellate Court for decision on the remaining issues.

6. Para. 4 of the Leave Grant Order dated 28-3-1995 reads thus "It was contended by the learned counsel for the petitioner that the finding of the learned High Court is erroneous and is based on misreading of evidence and misapplication of law. It was further contended that the respondents/plaintiffs had earlier approached the Civil Court and then withdrew the suit on the ground that the Civil Court had no jurisdiction in the matter and then approached the Collector for restitution and redemption of the land in question under the West Pakistan Restitution and Redemption of Mortgaged Lands Act, 1964 hereinafter to be referred as the Act, which was dismissed as barred by time. That the Collector's order was never challenged in appeal or revision provided for under sections 14 and 15 of the Act. That section 17 of the Act ousts the jurisdiction of Civil Court to entertain any claim or enforce any right under mortgage declared extinguished. It was further contended that the respondents/plaintiffs based their claim on Mutation No.5290 attested on 20-5-1922 and the same was relied upon by the learned High Court in holding the suit within time, though the original mortgage was created through Mutation No. 1579 dated 13-3-1909. That there had been no acknowledgement proved for giving fresh start of limitation. That Mutation No.5290 dated. 20th May, 1922 does not pertain to the suit land rather it is regarding land bearing Khasra No.873/2 measuring 2 Kanals 17 Marlas and Khasra No.3576/3490. We have perused the record and find substance in the contentions raised by the learned counsel for the petitioner. Leave is granted to consider the above contentions.

7. Mr. M. Aman Khan, learned counsel appearing in support of the case of the appellant has simply contended that the conclusion drawn by the learned Judge in Chamber of the Peshawar High Court cannot be sustained. According to him, earlier suit of the respondent/plaintiffs was withdrawn by them before the Appellate Forum which was seized of their appeal against the judgment and decree of the trial Court dated 16-9-1971. The withdrawal of the suit was sought by the respondents/plaintiffs with a view to approaching the Custodian of Evacuee Property. Since, they did not make resort to the said forum and instead proceeded with making an application under sections 3 and 10 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act (No. XIX of 1964), they can be made to suffer for their own failings both before the Civil Courts of plenary jurisdiction as also the competent Authority under Act No.XIX of 1964. The respondents/plaintiffs did not challenge the order of the Collector dated 24-12-1978 either in appeal or revision under sections 14 and 15 of Act No. XIX of 1964 with the result that the same had attained finality. As the jurisdiction of the Civil Courts to entertain any claim or enforce any right under a mortgage, declared extinguished under Chapter III of Act No.XIX of 1964, the second suit, out of which this appeal has arisen, was not maintainable.

8. Mr. H. M. Waris Khan, learned counsel representing the respondents/plaintiffs has relied upon Ayul) Khan v. Haqdad Khan and 9 others (PLD 1979 Peshawar 87) to contend that a mortgagee of land for over 60 years cannot be granted a declaration regarding rights of mortgagors in possession having been extinguished and title passed on to him mortgagee.

9. We have considered the arguments addressed at the Bar on behalf of the parties respectively and have also gone through the available material with their help. As mentioned above, the learned Judge in Chambers has found that the lower Courts had erred in holding that the provision of Act No.XIX of 1964 were applicable to the instant case and that the respondents/plaintiffs having sought the Redemption and Property under section 10 thereof under a wrong notion and the Collector having dismissed the said application for the reason that it related to time-barred mortgage, "..yet it would not adversely affect the rights of the petitioners/(plaintiffs) as the Collector had no jurisdiction whatsoever to entertain the claim of the petitioners. After the expiry of 60 years, mortgagor's suit for redemption becomes time-barred and he cannot redeem the mortgage unless acknowledgment has taken place. Section 10 of the Act deals with the restitution of subsisting usufructuary mortgage not less than twenty years old or of any usufructuary mortgage the period of which has expired. The Collector under section 12 of the 'Act after ascertaining that the mortgaged land remained in possession of the mortgagee for twenty years or the mortgage period has expired had to pass an order that the mortgage stands extinguished and mortgagor be put into possession/restored the possession of the mortgaged land without any payment of mortgage charge. It is manifest on the record that the mortgage in the present case was not usufructuary mortgage but a simple one, therefore, application filed by the petitioners before the Collector under section 10 of the Act was misconceived. It appears that the Collector while deciding the said application was not apprised of the fact that the judgment and decree of the learned Civil Judge, Swabi dated 16-9-1971 in Suit No. 149/1 was set aside in appeal by the learned Additional District Judge, Mardan, vide judgment and decree dated 9-12-1972 and as such its finding that the mortgage was time-barred and has extinguished, is without any foundation. " 10 Para. 7 of the impugned judgment is couched in the following words ,, The Act was intended to provide speedy and rapid redemption and restitution of certain mortgages of land by the Revenue Authorities as specified in sections 3 and 10 of the Act but the Statute has no restraining effect in order to completely keep out the Civil Courts even in the cases falling under sections 3 and 10 of the Act, from entertaining and adjudicating upon the matters relating to redemption. Bare reading of section 17 of the Act would show that the bar on the Civil Courts for entertaining any claim or enforcing any right under mortgage has been made conditional and the jurisdiction of the Civil Courts cannot be invoked where mortgage has been declared extinguished under Chapter III of the Act. It has been held earlier that the order of the Collector was without any lawful authority hence, there is no such declaration as envisaged under Chapter III of the Act, therefore, Civil Court has the jurisdiction to entertain a claim and enforce any right under the mortgage. " We further find that on the question of the jurisdiction of the Civil Courts not being barred, this Court, in Malik Rais Khan v. Abdul Manan and another (1992 SCMR 1822), observed as under: "The above provisions of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 hereinafter to be referred as the Act, make it amply clear that it provides remedies to the mortgagors for ' summary and quick disposal of application for redemption of certain specified types of mortgages on deposit of mortgage amount before the actual order of redemption as per sections 3 to 9 of Chapter Il of the Act. Under section 7 thereof the orders of redemption are final so long as any party aggrieved by the same does not institute a suit to establish his rights in respect of the mortgage. Thus, it is obvious that section 3 of the Act affords an additional remedy to the mortgagor to redeem the type of mortgages mentioned in section 3 through an application and does not exclude the jurisdiction of the Civil Court to try regular suits of redemption if the mortgagor chooses that remedy. Chapter III of the Act deals with the restitution of mortgages which empowers the Collector to restitute subsisting mortgages not less than twenty years old or the usufructuary mortgage the period of which has been expired, with6ut payment of mortgage charge. This is a specific remedy which can only be availed of by mortgagor through a petition before the Collector and as the mortgagors cannot enforce this remedy in the Civil Court, obviously there is no clash of jurisdiction between the Collector and the Civil Court. The orders of the Collector in this Chapter are open to appeal and revision before the hierarchy of forums constituted under the Act but subject to their decision the orders of restitution are final and the jurisdiction of Civil Court is barred to entertain any claim or enforce any right under a mortgage declared extinguished under the said Chapter or to question the validity of any proceedings thereunder, under section 17 of the Act. It follows that a mortgagor, if he wants the restitution without payment of the mortgage charge and the other conditions mentioned in the Chapter III are satisfied, he can seek redress before the Collector but if he is ready to pay the mortgage amount or the conditions prescribed are not fulfilled viz., it is not a usufructuary mortgage or the mortgagee has not remained in possession for a period of twenty years, he can adopt the normal course of redemption under the Transfer of Property Act before the Civil Court. Needless to mention that the order of the Collector can also be questioned before the Civil Court on the ground of want of jurisdiction as orders without jurisdiction are nullity in the eye of law which can be questioned in the Civil Court. Since there is no express provision in the Act barring jurisdiction of the Civil Court to entertain suits for redemption of mortgages, the provision of section 9 of Civil Procedure Code remains unaffected and the Civil Courts have the jurisdiction to entertain and dispose of suits for redemption under the Transfer of Property Act. Consequently, the judgments of the lower forums decreeing the suit of the plaintiff/respondent for redemption of the mortgage land against the defendant/petitioner do not suffer from any legal infirmity or jurisdictional error." It is not the case of the appellant that he had sought any remedy either from the Collector of the District under the provisions of Act No.XIX of 1964 or even from the Civil Courts of plenary jurisdiction.

11. The matter does not end here. The findings recorded by the learned Judge in Chambers of the Peshawar High Court that there had been acknowledgments of mortgage from time to time and the last of which is vide Mutation No.2287 attested on 1-3-1944, are in line with this Court's observations in Samar Gul v. Central Government and others (PLD 1986 SC 35). The following excerpt from the Report of this case is to the point: Under section 4 of the Displaced Persons (Land Settlement) Act, 1958, evacuee lands acquired vested in the Central Government or the Provincial Government -and by virtue of section 5 of the said Act formed part of the compensation pool for the purpose of granting compensation to displaced persons whose claims have been verified. These lands forming part of the compensation pool were to be administered by the Chief Settlement Commissioner and other officers in the Settlement Organization. Accordingly by statutory provisions, the Chief Settlement Commissioner acted as agent for the Government in the management of the properties in the compensation pool. It follows, therefore, that Mutation No.1764 being effected in pursuance of his policy instructions in writing it would sufficiently constitute as an acknowledgment on behalf of the Central Government and would, therefore, bind the respondents. In this view of the matter, we have no difficulty in holding that a fresh period of limitation had commenced with effect from 11th January, 1969, and therefore, the suit of the appellant having been instituted within sixty years from the aforesaid date was well within time. "

12. Moreover, remand of the case to the Appellate Court for recording findings on issues other than Nos.2, 3 and 5, has not been shown to be suffering from any taint whatsoever.

13. We are not inclined to the view that any interference is called for in the impugned judgment muchless when the matter is even now open for arguments by the parties before the Appellate Court on all issues except issues Nos.2 3 and 5. 14 Resultantly, this appeal fails and is hereby dismissed with no order as to costs. A.A./S-80/S Appeal dismissed