1992 PLP 1189 (MLD)

The dispute in this Constitution petition relates to agricultural land measuring 177 kanals 4 marlas in revenue‑estate Sultanpur, Tehsil Alipur, District Muzaffargarh. The petitioners admittedly are the successors‑in‑interest of non‑Muslim evacuee mortgagee while respondents Nos.1 to 13 are successors-in-interest of mortgagor/owner.

2. Fortunately the facts of this case leading to this petition are admitted. The land in dispute alongwith other agricultural land situate in revenue‑estate Sultanpur, Tehsil Alipur, District Muzaffargarh was owned by predecessor‑in- interest of respondents Nos.1 to

13. It was mortgaged in favour of Narain Mal and other non‑Muslims somewhat in year 1888/1889.

3. On 27‑10‑1909, the aforesaid mortgagee made sale of the equity of redemption of land in dispute in favour of Bhawani Das and Tara Chand. Mutation bearing No. 232 in respect of this transaction was attested on 4‑1‑1910. With the advent of Pakistan, the Settlement authorities allotted 103 Kanals 16 Marlas out of this land in favour of one Suleman. The remaining 74 Kanals were allotted to Mst. Bhagi on 16‑2‑1971.

4. It was on 5‑12‑1962 when respondents Nos.1 to 13 lodged an application to the Collector for the restitution of mortgage. The learned Collector directed the applicants to deposit the mortgage‑money which was accordingly paid on 6‑12‑1964. The learned Collector dismissed the application on 5‑9‑1966 by concluding that the application was barred by time. Respondents Nos.1 to 13 submitted another application to the Collector/D.R.C., Muzaffargarh on 14‑10‑1966 for the redemption of mortgage. After holding summary inquiry the Collector, Muzaffargarh, by means of order dated 5‑7‑1969 allowed the application. Against this order the petitioners preferred an appeal before the Settlement Commissioner, who accepted the same and remanded the case back to the Additional Settlement Commissioner, Muzaffargarh for deciding it afresh on merit. Pursuant to this, the learned Additional Settlement Commissioner allowed the application on 31‑12‑1973. The petitioners unsuccessfully invoked the review‑jurisdiction of the Additional Settlement Commissioner. The order of Additional Settlement Commissioner/Collector, Muzaffargarh dated 31‑12‑1973 and the order of the Additional Settlement Commissioner/Collector dated 19‑2‑1974, are the subject‑matter of challenge in this Constitution petition. 4‑A. On behalf of the petitioners, the learned counsel raised the following points:‑‑ (i) That the Collector had dismissed the first application by means of order dated 5‑9‑1966; that the second application dated 14‑10‑1966 was barred under section 8 of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 (shortly stated as `Act'). (ii) That the impugned orders were passed by the Addl. Settlement Commissioner, Muzaffargarh, who in the words of learned counsel, had no authority whatsoever to pass the same. This was within the domain of Collector under section 12 of the Act. On the strength of, this argument, it was canvassed that the order was void ab initio. Reference was made to Khan Aman Khan v. Sr. Member, N: W.F.P. Board of Revenue, etc. PLD 1984 Pesh. 169. (iii) Lastly it was stressed that in fact no application was given by respondents Nos.1 to 13 for redemption within limitation. The applications on which the Addl. Settlement Commissioner started proceedings, were in fact given by imposter on behalf of Ghulam Rasul. According to the learned counsel this assertion was substantiated by the fact that Ghulam Rasul had died on 14‑9‑1963.

5. In reply the learned counsel for respondents Nos. l to 13 supported the impugned order by submitting that admittedly the petitioners were vendees from allottees; that the ownership rights were never vested in the Central Government under Evacuee/Rehabilitation Laws. Any allotment made in favour of predecessor‑in‑interest of the petitioners was wholly invalid to the extent of right of ownership. The petitioners had, thus, no right to challenge the order of restitution. Reference be made to Allah Bakhsh and others v. Muhammad Shafi and another 1989 SCMR 780.

6. Before I proceed to determine the merits of the case, it would be useful to deal with the legal position relating to mortgage; the rights of mortgagor/owner qua the rights of mortgagee, especially under the impact of Evacuee Laws/Rehabilitation Laws/Settlement Laws. Mortgage according to its definition embodied in section 58 of the Transfer of Property Act is a transfer of an interest in specific immovable property to serve as a security for the payment of loan or debt or the performance of an engagement giving rise to pecuniary liability". Dealing with the rights of mortgagor and mortgagee,. Salmond in ht's Jurisprudence (7th Edition 1924), at page 280 says "The rights of the owner of a thing may be all but eaten up by the dominant rights of lessees, mortgagees and other encumbrancers. His ownership may be reduced to a mere name rather than a reality. Yet, he nonetheless remains the owner of the thing, while all others own nothing more than "rights" over it ....He then, is the owner of a material object, who owns a right to the general or residuary uses of it, after the deduction 6f all special and limited rights of use vested by way of encumbrance in other persons." Pollock, in his "First Book of Jurisprudence" (5th Edition, 1923) at pages 179 and 180, says "We must not suppose that all the powers of an owner need be exercisable at once or immediately; he may remain owner though he has parted with some of them for a time. He may for a time even part with his whole powers of use and enjoyment and suspend his powers of disposal, provided that he reserves for himself or his successors the right of ultimately reclaiming the thing and being restored to his power:"

7. From the aforesaid statement of law, it is clear that mortgagor in spite of executing the mortgage remains the owner of property. Only an interest in mortgaged property is transferred in favour of a mortgagee who is bound to redeem the property within 60 years of execution of mortgage to mortgagor on the payment of mortgage money. This right of mortgagor is known as the right/equity of redemption and can only be foreclosed within the framework of section 60 of the Transfer of Property Act. Applying this principle to the fact and circumstances of this case. it is manifestly clear that the right of ownership continued residing in the mortgagor without its infraction in any manner.

8. Having examined the concept of mortgage, I feel it is now proper to determine the contentions of the parties. The first point for consideration is as to what was the legal effect of notification under section 4 of the Displaced Persons (Land Settlement) Act (XLVII of 1958) qua the mortgagors/mortgagees rights. This question came tip for consideration before. Supreme Court in Muhammad Khan and others v. The Chief Settlement Commissioner and another PLD 1962 SC

284. In this case Muhammad Khan and others were mortgagees with possession of certain agricultural land owned by non‑Muslims. The mortgage was created in 1958. Certain khasra numbers out of this land were allotted to 2nd respondent Shamsul Haq. As the allottee made an effort to obtain the share of rent of land from the, tenants, the mortgagees filed Constitution petition before the High Court of West Pakistan. It was claimed that notification of acquisition of mortgagee's interest was not extinguished and allotment by the Rehabilitation Authority was invalid. The learned Single Judge dismissed the petition. The Intra‑Court appeal of Mortgagee also failed. The appellants filed leave to appeal in the Supreme Court of Pakistan which was granted and ultimately the appeal was also accepted and the requested relief was granted to the appellant/petitioner. His Lordship Mr. Justice SA. Rehman while speaking for the Bench surveyed the various provisions of Evacuee (Rehabilitation & Settlement) Laws relating to word "evacuee property" and held:‑‑ "that right/title and interest of appellants were not acquired by notification under section 4 of the Act unless the appellants' mortgage is redeemed either by the Government or by the allottees:

9. This question was again examined in Samar Gul v. Central Government and others PLD 1986 SC

35. In this case the disputed property was owned by one Khawas who mortgaged it to Hira Nand by means of Mutation No.382, attested on 31‑3‑1916. Khawas died somewhere in 1928 leaving behind a son namely Abbas. The said Abbas sold equity of redemption in favour of one Samar Gul by means of Mutation No.1449 attested on 21‑11‑1957. After the creation of Pakistan, the land in dispute was allotted to one Chhuntna. On 27‑9‑1973 Samar Gul filed a suit in the Court of Senior Civil .fudge, Kohat, seeking a declaration that mutation in favour of allottee was. illegal and ineffective on his right. The suit was contested. The learned trial Court by means of decree dated 3‑1‑1980 dismissed the suit holding that the suit was barred by time. On appeal, the learned District Judge came to the same conclusion. Feeling aggrieved Samar Gul filed revision petition which was also dismissed. Unsatisfied Samar Gul filed an appeal before the Supreme Court with success. The suit of the appellant was decreed and he was declared to be owner of equity of redemption in the suit land. The Supreme Court reiterated the principle laid down in Muhammad Khan's case PLD 1962 SC 284 ibid, in following words:‑‑ "Now the admitted position that emerges from the record is that Khawas was the owner of the land and he had only transferred mortgagee rights in favour of the Hindu mortgagee who subsequently became an evacuee. Learned counsel for the respondents was unable to say when the Hindu mortgagee had become an evacuee and whether or not his rights were at any time treated as evacuee property before the 1st of January, 1957. However, the first entry in point of time recorded in the revenue record was on 11th January, 1969 vide Mutation No.1764 in which only the mortgagee rights of the non-Muslim evacuee were transferred in favour of the Central Government. From this it follows very plainly that upto this date the concerned authorities were treating the ownership rights in the property to be non‑evacuee and only mortgagee rights to be evacuee property. This entry was obviously made by virtue of the acquisition of evacuee rights in land under section 4 of the Displaced Persons (Land Settlement) Act, 1958. This Court in Muhammad Khan v. Chief Settlement and Rehabilitation Commissioner PLD 1962 SC ,284 considered the effect of evacuee laws and section 4 of the Displaced Persons (Land Settlement) Act, 1958, on the rights of Muslim Pakistani citizen in respect of property subject to a mortgage and held that a notification under the last mentioned section, in no way, destroyed the rights of non‑evacuees in land in which evacuee had any right under mortgage. It cannot, therefore, be disputed that the successors‑in‑interest of Khawas continued to have a right to the, equity of redemption in the disputed property, notwithstanding the acquisition of evacuee's interest therein by the Central Government. The position, therefore, is that the Central Government merely stepped into the shoes of the evacuee and was vested only with the rights of mortgage and nothing more."

10. From the examination of enunciation of law in aforenoted authorities, it is clear that right of ownership in disputed land neither vested in the Custodian nor in the Central Government under the Evacuee/Settlement/Rehabilitation laws. This land did not go into compensation pool constituted under the provisions of Displaced Persons (Land. Settlement) Act (XLVII of 1958), and so the Settlement Authorities had no authority whatsoever to make the order of allotment in respect of this land. On the basis of this analysis: I have, therefore, no hesitation in coming to the 'conclusion that allotment of disputed land made in favour of the predecessor- in‑interest of the petitioners was wholly without jurisdiction and was totally destitute of legal efficacy. I am in perfect agreement with the learned counsel for the respondents, that the petitioners bad no right to challenge the orders of restitution passed by the Collector/Additional Settlement Commissioner, Muzzaffargarh. The contentions raised by the learned counsel for the petitioners proceed on the basis of mere technicalities which cannot be rewarded in the constitutional jurisdiction.

11. Even otherwise, the contention of the petitioners that the Additional Settlement Commissioner had no jurisdiction to pass the impugned order, is, in my opinion, without merit. It is not denied that the Additional Settlement Commissioner was Collector also. The application for restitution was addressed to the Collector. In the first instance, it was accepted by the Collector. The petitioners preferred appeal before the Settlement Commissioner who accepted the same and remanded the case back to the Additional Settlement Commissioner. Pursuant to this order of remand, the learned Additional Settlement Commissioner allowed the application for redemption. From the aforesaid, it is clear that the powers of the Additional. Settlement Commissioner and that of the Collector were conferred upon the same person. It is a well settled principle of law that false description does not vitiate a document. Reference be made to Piao Gul v. The State PLD 1960 SC

307. Judged from this angle it is quite clear that the orders were passed by the Collector. No exception can be taken to legitimacy and the validity of the impugned orders on the basis of mere circumstance of false description o designation of officer.

12. It is a well-settled principle of law that Constitutional jurisdiction is intended to foster justice between the parties and right a wrong. It is not exercised in the help of injustice or in the aid of the people who come to the Court in order to retain the ill‑gotten claims. Reference be made to Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236, Muhammad Ismail v. Abdul Rashid and 2 others 1983 SCMR 168 and S.K. Masood and 3 others v. Special Committee through Member Board of Revenue (Settlement and Rehabilitation) and Secretary to Punjab Government arid others 1990 CLC 1174.

13. Applying this principle to the facts of the case, it is crystal clear that the petitioners have no right in this land. The respondents Nos.1 to 13 have deposited the mortgage money in compliance of the order of the Court. The disputed property has thus been freed from encumbrance. The petitioners had' no right to dispute the ownership rights of respondents Nos.1 to 13.

14. In the light of foregoing discussion, this petition is found to be wholly without merit and is accordingly dismissed. The petitioners shall bear order the costs of the proceedings. AA./K‑21/L Petition dismissed.