2002 PLP 1533 (CLC)
MUHAMMAD IQBAL and 17 others‑‑‑Petitioners Versus GHAUNSULLAH KHAN and 17 others‑‑‑Respondents
| Citation | 2002 PLP 1533 (CLC) |
| Forum / Court | Peshawar |
| Bench Members | Abdur Rauf Khan Lughmani |
| Parties | MUHAMMAD IQBAL and 17 others‑‑‑Petitioners Versus GHAUNSULLAH KHAN and 17 others‑‑‑Respondents |
Q1: What are the key laws and sections cited in 2002 PLP 1533 (CLC)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2002 PLP 1533 (CLC)?
The case was heard and decided by the Peshawar bench comprising: Abdur Rauf Khan Lughmani.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2002 PLP 1533 (CLC) (MUHAMMAD IQBAL and 17 others‑‑‑Petitioners Versus GHAUNSULLAH KHAN and 17 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Gohar Zaman Khan Kundi for Petitioners
- Rustam Khan Kundi and Karim Khan Marwat for Respondents
- Date of hearing: 7th February, 2002.
Headnotes / Summary
(a) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Arts. 203‑D & 264‑‑‑General Clauses Act (X of 1897), S.6‑‑Expressions "cease to have effect" as envisaged in Art.203‑D of the constitution and "effect of repeal of law"‑‑Distinction‑‑Declaration of a law repugnant to Injunctions of Islam‑‑Effect‑ Expression "ceased to have effect" cannot be said to be synonymous with repeal as is envisaged by Art.264 of the Constitution and S.6 of the General Clauses Act, 1897; in the former eventuality even pending cases cannot be dealt with in accordance with the law which has been held repugnant to the Injunctions of Islam and ceased to have effect after the date mentioned in the decision of Supreme Court while in the latter eventuality a proceeding pending in a Court or any such right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed are fully protected unless a different intention appears from repealing enactment. (b) Limitation Act (IX of 1908)‑‑‑ ‑‑‑‑S. 28‑‑‑Extinguishment of right to property‑‑‑Dictum laid down in case Maqbool Ahmad v. Government of Pakistan, reported as 1991 SCMR 2063‑‑ Applicability‑ Provision of S.28 of the Limitation Act, 1908, ceased to have effect after 31‑8‑1991 as laid down in 1991 SCMR 2063‑‑‑Where a suit instituted under S.28, Limitation Act, 1908 was decreed before the target date the same was considered a transaction past and closed but if not then it could not have been decreed thereafter. Maqbool Ahmad v. Government. of Pakistan 1991 SCMR 2063 ref. (c) Transfer of Property Act (IV of 1882)‑‑‑ ‑‑‑‑S. 58(d)‑‑‑Limitation Act (IX of 1908), 5.20(2) & Art.148‑‑ Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑ Usufructuary mortgage‑‑‑Receipt of produce of mortgaged property‑‑ Redemption of mortgaged property‑‑‑Limitation‑‑‑Mortgaged property was in possession of the mortgagee and the mortgagor applied to the Revenue Authorities after sixty years for redemption of the property‑‑ Authorities decided the matter in favour of the mortgagor and redeemed the property‑‑‑Contention of mortgagee was that the orders passed by Revenue hierarchy were against' the provisions of Art.148 of the Limitation Act, 1908, as the application for redemption of the property was filed beyond sixty years‑‑‑Validity‑‑‑Where mortgagee was in possession of the mortgaged property and was in receipt of the usufructs, such receipt would be considered as an acknowledgement of mortgage and would be counted towards the payment of mortgage money within the terms of S.20(2) of the Limitation Act, 1908‑‑‑Every such receipt would give rise to a fresh period of limitation‑‑‑When the mortgage was usufructory in nature, the, question of extinguishments of title of the mortgagors and perfection of the title of the mortgagee through prescription would not arise‑‑‑Mortgagee, in the present case, did not challenge the judgment passed against him in the higher forum, thus the same had attained finality‑‑‑High Court declined to interfere with the judgment passed against the mortgagee‑‑‑Constitutional petition was dismissed in circumstances. Abdul Haq v. Ali Akbar 1999 SCMR 2531 ref.
Judgment & Decree
EJAZ AFZAL KHAN, J.‑
The respondents Ghaunsullah and others instituted an application for redemption of the property comprised in Khasra Nos. 1877 and 1878 measuring 158 Kanals, 4 Marlas situate in Tank against the predecessors‑in‑interest of the petitioners herein in the Court of Collector, Tank which was accepted vide order, dated 11‑12‑1998 while the appeal against the said order was dismissed and so was the revision petition vide orders, dated 11‑5‑1999 and 30‑5‑2000 respectively.
2. The petitioners have filed the instant Constitutional petition impugning the aforesaid orders as being without jurisdiction and lawful authority.
3. The learned counsel for the petitioners contended that the property forming subject‑matter of this litigation was mortgaged on 12‑6‑1900 and after the expiration of sixty years the mortgagees became owners and the title of the mortgagors stood extinguished, therefore, the mortgagors had no right whatsoever to institute an application for the redemption of the property and that all the Courts of Revenue hierarcy have acted without jurisdiction and lawful authority by accepting the application of the respondents for the redemption of the property especially when it is against the express provisions of Article 148 of the Limitation Act.
4. On the other hand, the learned counsel for the respondents contended that the application of the respondents was rightly accepted as that time when the application for the redemption of the property was instituted section 28 of the Limitation Act ceased to have effect, therefore, the orders passed by the Courts of revenue hierarchy are perfectly in accordance with law. The learned counsel next contended that the mortgagees were in possession of the mortgaged land and in receipt of the usufructs, therefore, such receipt would not only be an acknowledgement of the mortgage but would also be counted towards the payment of the mortgage money for the purpose of limitation. The learned counsel in this behalf placed reliance on Abdul Haq v. Ali Akbar 1999 SCMR 2531.
5. The argument that expiration of sixty years ever since the creation of mortgage per se will perfect the title of the mortgagees through prescription and that the right of the mortgagors to redeem the property would stand extinguished is not correct unless a declaratory decree in this behalf is obtained from the competent Court of law.
6. The question whether after the deletion of section 28 of the Limitation Act a suit purported to have been instituted under section 60 of the Transfer of Property Act, 1882 can be decreed and whether a law declared by the Supreme Court of Pakistan to be repugnant to the Injunctions of Islam and ceasing to have effect after the date fixed in the decision can be hold synonymous with the repeal of a law would also quire a thorough consideration by this Court. Before these questions are answered it will not be out of place to make .reference to the relevant Provisions of the Constitution of Islamic Republic of Pakistan and the General Clauses Act. These are as under:
203‑D. Powers Jurisdiction and functions of the Court.
(1) Court.‑‑‑ (3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam,‑‑ (a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and (b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.
264. Effect of repeal of laws.
Where law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the constitution. (1) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of the law or anything duly done or, suffered under the law; (c) affect any right,, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty,