1995 PLP 1618 (CLC)

Hasnat Ahmad Khan for Respondents. This case came up for hearing after the order of remand by the Honourable High Court passed in Writ Petition No.292/71 which was accepted vide order dated 16‑6‑1987.

2. Brief facts of the case are that the petitioners are successors-in- interest of the deceased Szrdar Khan, who was the owner of the land measuring 24 Kanals & 13 Marlas situated in village Ali Sher, Tehsil Wazirabad, district Gujranwala, Sardar Khan mortgaged this land with Niaz Din and Fateh Din Sons of Muhammad Khan and the entries of the said mortgage duly incorporated in the Jamabandi of the year 1916‑17 of Chak Ali Sher were attached with the application of the redemption submitted by the petitioner. The petitioners are the successor‑in‑interest of Sardar Khan deceased and the respondents are the legal heirs of the mortgagees Nizam Din and Fateh Din: The application of restitution was filed on 4‑5‑1967. The petitioners asked for redemption of only half of the mortgaged land i.e. 12 Kanals. The respondents contested the application mainly on the grounds that the mortgage was of more than sixty years and the same could not be redeemed and also that the petitioners had asked for part redemption of the land which was not permissible under the law and that the respondents were also descendant in interest of the deceased owner as he had died, issueless. The petition for redemption was however dismissed by the Collector, Wazirabad vide order dated 10‑2‑1969. The petitioners filed an appeal in the Court of Commissioner, but the same was also rejected vide order dated 4‑6‑1969 on the following grounds:‑‑ "application for restitution was only for half of this land which had fallen to the share of the present appellants from the inheritance of Sardar who is said to have died issueless. The owners of the other half did not join the application for the restitution of the land. Part of the originally mortgaged land could not be restituted."

3. The petitioners then filed their revision petition under section 15 of the Redemption and Restitution of Mortgaged Lands Act 1964 in the Court of Member (Revenue) Board of Revenue, Punjab but the same was also dismissed vide order dated 19‑8‑1970. This order of Member (Revenue) Board of Revenue, Punjab was assailed by the petitioners before the Honourable High Court vide Writ Petition No. 292/1971 which was accepted vide order dated 16‑6‑1987 mainly on the ground that while dismissing the revision petition the learned ‑Member (Revenue), Board of Revenue, Punjab had not called for the record. According to the said Judgment the submission of the petitioners was that had the record been before the revisional authority the petitioners might have succeeded in pursuading the Court that their application was not barred by time and if they would have succeeded on the question of limitation they could have moved the fresh application alongwith co‑mortgagors praying for the redemption of entire land.

4. In compliance with the order of Honourable,'High Court the relevant record was called for and a Fard Intikhab was got prepared by the Patwari. The old record was vigilantly scrutinized. Whereas it was however reported that the record for the period of 1896 to 1908 was not available. From the perusal of the record it was found that the record of rights pertaining to the year 1908‑1909 clearly incorporated in the record of rights but the petitioners while filing the petition for redemption instead of submitting the record of rights of 1908‑1909 based their claim on the record of right pertaining to the year 1916‑

17. It is also a fact that the record of rights is prepared after four years. An entry which had been incorporated in the record of rights of 1908‑09 must have been existing in the column of remarks (KHANA KAIFIAT ) of the record of rights of the previous four years ( CHAHAR SALA ). Hence it can safely be derived that the mortgage, which was incorporated in Khana Malkiat of record of rights of 1908;1909 should have been actually effected earlier to 1908 and thus it can safely be presumed as 1907 (at the latest). Now the petition was filed in 1967 i.e. after the expiry of sixty years.

5. Though in the Court of the Collector some verbal evidence was also produced alleging that the ownership changed hands even during the period of 1891 to 1901 as it was even earlier mortgaged with some other person yet it shall not be required to derive any inference from the said verbal evidence as the witnesses were themselves might have not taken birth and their. .knowledge was not first hand knowledge and especially when other circumstances of .the case proved that the petition of restitution was given after sixty years and the petitioners themselves by suppressing the record of rights of 1908‑1909 produced a copy of the record of rights of 1916‑

17. Thus suppression of the record again goes against the veracity of the petitioners.

6. It is also admitted that the petitioners had asked only for the part restitution which was not permissible and the request of the petitioners after the remand order of the Honourable High Court for filing an amended petition was not maintainable.

7. As Sardar Khan the original owner of land died issueless and the respondents became co‑sharers of the land through mutation No.47, therefore, I do not find sufficient reason to interfere in the concurrent finding of both the Lower Courts. The petition is accordingly dismissed. A.A./23/Rev. Revision dismissed.