P L D 1995 Peshawar 96 (PLP)

Sardar Faizullah Khan Sadozai for Petitioners. Mir Sarwar Khan son of Ghulam Khan and 9 others (plaintiffs), on the one hand and Amir Sher Bahadur son of Mir Nasrullah Khan and 3 others of Fatima Khel Kalan, Tehsil and District Bannu, on the other, had dispute over properties the initial round of which litigation was settled by the High Court in the year 1962 and 1964. The second round started through a partition suit brought on 28‑3‑1985 by Mir Sarwar Khan etc. against Amir Sher Bahadur Khan etc. in which the former claimed possession through partition of 5/16 share which was decreed by the learned Senior Civil Judge Banml on 25‑6‑1989.

2. Three appeals were filed against such decree which through single judgment dated 4‑12‑1989, were dismissed by the learned Additional District Judge, Bannu and the preliminary decree for partition granted by the trial Court was upheld. Five years and 2‑1/2 months after the judgment of the 1st Appellate Court, Muzaffer Shah etc. have filed this revision on 12‑2‑1995 on the ground that they being mortgagees in possession of portion 114‑Geem‑‑of the disputed house were necessary party to the partition proceedings and hence both the judgments be set aside, the case be remanded to the trial Court. they be impleaded at the trial stage and the proceedings to take place afresh.

3. It is quite meaningful that the petitioners being mortgagees in physical possession of the aforesaid portion never thought of becoming party to a partition proceeding that started in March, 1985. Anyhow if really interested they could have even applied before the 1st Appellate Court for being made a party to and heard in appeal. A waste of five years and 2‑1/2 months is rather suggestive of the fact that their rights, if any, are not at stake.

4. Partition proceedings is a contest among owners/co‑sharers and a mortgagee is not supposed to be a necessary party in such proceedings. Had the mortgagees been present before the Court, it would have been better but their non‑presence does not happen to least affect the merits of the case between the owners/co‑sharers. Once a mortgage with possession is created, a mortgagee is entitled only to keep the possession and should remain interested ' in the amount of mortgage at the time of redemption. The present petitioners A, claim to be in physical possession of portion 114‑Jeem of the suit house and in case it is true, their mortgagee rights are fully protected regardless of the fact as to whether the mortgaged portion goes to their mortgagor in partition or to any other co‑sharer. In the latter eventuality it would be the headache of the owners inter se as to how to adjust the mortgage amount which is ultimately to be paid to the mortgagees. The petitioners should not worry if what is going on between the owners provided they are in physical possession.

5. There are occasions when the properties under mortagee are sold by the real owners subject to mortgage and there are occasions when a sale of right to redeem is affected. In that case too a mortgagee is never consulted because a vendee always secures his rights after seeing someone else to be in physical possession and always withholds the mortgage amount from the total amount of consideration. The present mortgagees, therefore, are not adversely affected by what is going on between the owners/co‑sharers.

6. It is alleged that during the trial a local Commissioner was appointed before whom also the disputed portion was determined to be under mortgage. The report of the local Commissioner is filed as Annexure `H' in which it is no‑where determined so. Anyhow if the petitioners are really in physical possession of the disputed portion, their mortagee rights are least in jeopardy because no owner would be entitled to the possession of that portion unless the mortgage is redeemed. Such objection can be raised, if advised, in the proceedings of final decree execution.

7. The learned counsel for the petitioners placed reliance upon a judgment of the Supreme Court delivered in H. M Saya & Company. v. Wazir Ali Industries, Karachi (PLD 1969 Supreme Court 65) where it was held with reference to sections 96 and 104 of the C.P.C that a stranger to a suit or proceedings is also competent to file appeal if he is adversely affected by order. This is distinguishable because the petitioners were never vigilant in becoming a party in appeals which stands even decided five years and 2‑1/2 months prior to the institution of this revision. Moreover, in case the petitioners are really mortgagees and are in physical possession of the disputed portion, they are never adversely affected by any judgment to which they were not a party and which was a dispute between owners alone. Similar is the view of the Lahore High Court given in Manzoor Qadir. v. Mst. Amtul Hussain PLD 1971 Lahore 537 where the matter was confined to becoming a party in appeal and that too after when the leave was granted and when the person interested in becoming party was likely to be prejudicially affected by the judgment appealed against. This ruling is also distinguishable as above, in that, the instant proceedings are not of appeal and the petitioners are not likely to be prejudicially affected. The instant one is a revision petition filed at an extremely belated stage. The revision petition is hereby dismissed in limine. AA./1779/P Petition dismissed.