P L D 1983 Peshawar 58 (PLP)

5. In the written statement, it was specifically mentioned that the original mortgagees have made acknowledgment of the existence of the mortgage time and again within the period of limitation as is evident from several mutations pertaining to the creation of sub‑mortgages. It was also alleged that the original mortgagees (Plaintiffs) having realized the mortgage money from sub‑mortgagees they are no more interested in the suit property. However, these facts are not properly made the subject‑matter of separate issues as the written statement appears to be evasive. However, both the parties were alive to the real controversy and, therefore, produced their evidence in support of their case as set up in the pleadings.

6. The learned trial Court on the basis of the evidence on the record, mainly consisting of the revenue record, cane to the conclusion that the plaintiffs and defendants Nos. 5 to 8 are the first mortgagees of the suit land and that they have become owners by prescription, being time‑barred mortgagees. Defendants Nos. 1 to 4 even held co be the successor of the original mortgagors. In view of the aforementioned finding, the suit of the plaintiff was decreed. The learned Appellate Court concurred with the finding of the learned trial Court and dismissed the defendants' appeal.

7. Mr. Azizur Rehman Khan, Advocate, the learned counsel for the appellants and Mr. Saadullah Khan Mian Khel, Advocate, the learned counsel for the respondents present and heard.

8. The learned counsel for the appellants referred to mutation No. 1292 attested o;) 27‑12‑1908, copy Exh. P. W. 2/1 pertaining to the suit property and contends that the suit property was jointly owned by Barra Khan, Basit Khan sons of Shah Nawaz. However, when the mortgages mutation was being attested in `Jalsa‑e‑Aam' the presence of Barra Khan alone is shown by the learned Tehsildar in his order as having admitted the factum of mortagage of the suit property by himself and on behalf of his brother. The learned counsel for the appellants through this arguments wants from this Court to hold that half of the property is to be declared as under mortgages with the plaintiffs, and if the decree for some reason or other is maintained, then in that case, the plaintiffs are to be held to be entitled to that half of the suit property. However, his contention of the learned counsel is without any force.

9. From the perusal of the mutation, it is evident that the mortgage was created by both the brothers of their entire share in the suit property. However, at the time of attestation of mutation, one of the brothers had appeared before the Tehsildar and had accepted the factum of mortgage of the suit property by him as well as by his brother. This mortgage was never challenged since then by Baist Khan, or his successor. Whatever may, be the position this was not the case in their written statement or at any stage of the proceedings. This plea does not find place in their written statement nor the evidence produced in the Court, though the property has been shown under mortgage since 1908 on behalf of both the aforementioned brothers. This argument further loses force as the appellants are the purchasers of the equity of redemption of Basit Khan and Barra Khan sons of Shah Nawaz On the basis of mutations Nos. 11955 and 11010 attested on 20‑12‑1936 and 25‑1-1937 of their respective share. They being purchasers of the equity of redemption are estopped to challenge the creation of mortgages by their, vendor.

10. The learned counsel for the appellants next argued that the first mortgagees have sub‑mortgaged the suit property from time tea tune before the expiry of period of limitation for the redemption of the original mortgage. According to the learned counsel the creation of sub‑mortgage amounts to an acknowledgment of the original mortgage within the meaning of section 19 of the Limitation Act which will give fresh start of limitation from the date of such acknowledgment. In this view of the matter if the creation of such sub‑mortgage is held to be an acknowledgment, then the suit of the plaintiff is premature and liable to be dismissed. In order to appreciate this point, reference can be made to the various mutations whereby sub‑mortgages have been created by the original mortgages from time to time. The suit property consists of Khasra Nos. 2541, 2767, 2150, 2149 and 1076 of which the plaintiffs are entered mortgagees as stated earlier. For the purposes of clarification the sub‑mortgages were created as under :‑ (1) Khasra No. 2767 was sub‑mortgaged vide mutation No. 3248 attested on 15‑12‑1913 by predecessor of the plaintiffs who thereafter redeemed it vide mutation No. 4208 attested on 28‑9‑1915 and again created sub mortgage vide mutation No. 4454 attested on 25‑11‑1915. (2) Khasra No. 2451 was sub‑mortgaged vide mutation No. 3484 attested on 27‑3‑1915 which was redeemed vide mutation No. 4255 attested on 28‑9‑1915 and again sub‑mortgaged vide mutation No. 9214 attested on 12‑12‑1928. (3) Khasra Nos. 1249 and 2150 were sub‑mortgaged vide mutation No. 4818 attested on 30‑9‑1916 which were redeemed vide mutation No. 3245 attested on 22‑8‑1929. (4) Khasra No. .1750 was sub‑mortgaged vide mutation No. 7054 attested on 11‑3‑1924. According to the learned counsel, this suit having been instituted on 13‑6‑1969 and keeping in view the acknowledgment referred to above, through creation of sub‑mortgages the period of 60 years had rot yet completed and the plaintiffs are not entitled to be declared as owners by prescription.

11. In order to appreciate the contention raised, it will be with advantage. to reproduce section 19 of the Limitation Act which is as under :‑ S.

19. Effect of acknowledgment in writing.‑--(1) Where, before the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed ; but, subject to the provisions of the Evidence Act, 1872 (I of 1872) oral evidence of its contents shall not be received. Relying on the aforementioned provisions of law, the learned counsel or the, appellants referred to an authority Bachu Lal and others v. Jang Bahadur Rai and others (A I R 1939 Pat. 427), wherein their Lordships of the Patna High Court have held that the sub‑mortgage effected by the original mortgagee on 13th June, 1879 (Exh. 4) clearly recites the mortgagee's rights and liabilities under the original mortgage of 10th April, 1863, and this is an acknowledgment within the meaning of section 19 of the Limitation Act. He further relied on Sidhari Ram v. Dr. Gargi Din (A I R 1924 All. 458) wherein their Lordships on the facts of the case observed that "the very fact of Gaya Prasad selling his mortgagee rights was an express acknowledgment of the existence of a subsisting mortgage and of subsisting rights which he was competent to sell and the very fact of defendant purchasing those rights was an acceptance on his behalf of an existing mortgage, a mortgage which was in force as subsisting mortgage on the date of the sale to him".

12. From the perusal of both these authorities, it is abundantly clear that the same are not applicable to the facts of the present case, and in both the cases, acknowledgment relied upon, were in writing and signed by the person making the acknowledgment. Furthermore, the acknowledgment was proved as fact by leading evidence in proof thereof. Apart from it, in the earlier case, there had been leases simultaneously with the mortgagees and it was in that context that their Lordships have' held that "they are sub‑mortgagees, and are liable to ejectment, with certain rights against their mortgagor defendant of this suit ; but there is no privity of contract between them and the plaintiffs ; and the decree for payment of money cannot properly be made against them : "Similarly, in the latter case also, the factum of mortgage was held to have been not in existence by the Appellate Court though the contesting defendants had claimed that they had become owners by purchase of the mortgagee's rights in the property in question. It was held that in a suit for redemption by the original mortgagors the transferee of the right of mortgagee cannot challenge the existence of mort gage, particularly which was made the basis of title and right of the vendor by the deeds executed in their favour on 28‑3‑1908. The suit for redemption was held within time from the date of the execution of the sale‑deed by the original mortgagees when the existing mortgage had been acknowledged in writing duly signed and proved.

13. The learned counsel next relied on a case 'Government of West Pakistan v. Syed Zainul Ebad Rizvi (P L D 1977 Kar. 297). In the case, there was repeated demands of the dues from the work done by the Contractor and when legal notices were issued on his behalf, he was pursuaded by the appellant (Govern ment of West Pakistan) to settle the matter amicably and not to resort to the legal action. It was a case of acknowledgmeat by correspondence. It was, therefore, that his Lordship of the Karachi High Court held that each one of letters exchanged between officer of contracting Department and contractor- respondent constituting acknowledgment of right to account the respondent/ contractor and each letter written before the expiry of limitation or earlier period of limitation last of such letters written, within three years of filing of the suit.

14. In rebuttal, the learned counsel for the respondents referred to section 58 of the Transfer of Property Act i.e. Act IV of 1882, wherein mortgage, mortgagees and mortgage money has been defined. According to section 58, clause (A), a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of . . . . . . . . . . . . . . . . . . "According to the learned counsel, the 1st mortgagees (Plaintiffs) having an interest in the property have every right to deal with such interest in the property in a manner permissible under the law. According to him, the mortgagees dealing with such interest in the property, by itself, by no stretch of imagination can be held to have acknowledged the original mortgage. Reference was made to an authority Pir Muhammad and others v. Abdullah Jan and another (1974 S C M R 332), wherein according to their Lordships `even the redemption of property by payment of the mortgage amount to the sub‑mortgagee does not put an end to the mortgage'. Reference was also made by the learned counsel to a case Abdur Rehim etc. v. West Pakistan Province etc. (P L D 1982 Pesh. 74) wherein the sub‑mortgagees were holding the property under the 1st mortgagee who was the non‑Muslim and had migrated to India. Therefor, section 4 (3) of the Displaced Persons (Land Settlement) Act, 1958, was pressed into service and in the peculiar circumstances of that case, the plea of the sub‑mortgagees as having prescribed title to the disputed property by lapse of time was disallowed, therefore, the above‑mentioned authority is of no help to the parties in the present case.

15. In this case acknowledgment has been claimed by the mortgagor (purchaser of the equity of redemption) by making reference to certain authori ties referred to above by which the sub‑mortgages were created from time to time with respect to the suit property. These mutations find place in the goshwara of mutation prepared from the revenue record placed and exhibited on the file. However, the original mortgage in favour of the plaintiffs sub sisted throughout and there had been no privity of contract between the sub‑mortgagees and the original mortgagors. In a case Peer Muhammad and two others v. Abdullah Jan and another (1), relationship of the mortgagor and mortgagee and that of sub‑mortgagees came under discussion, wherein it was observed by his Lordship Mr. Justice Shah Zaman Babar as under :‑‑ "The sub‑mortgagee has no privity of estate or privity of contract with the original mortgagor, so far as the sub‑mortgage is concerned, the privity of estate and privity of contract are between the mortagee and the sub‑mortgagee, and as such the sub‑mortgage can be put an end to by redemption or by release, only by the original mortgagee and his representative‑in‑interest. But the mortgagor has no right to directly terminate the sub‑mortgage independent of the mortgage. It cannot also be said that on the mortgagor acquiring the right under the sub‑mortgagor there is a merger of the sub‑mortgage in the owner ship of the property. Such merger is possible between the ownership of the property and the rights under the sub‑mortgage there is mortgage charge subsisting and so long as that intermediate charge the ownership of the property. The mortgagor will be entitled to redeem the original mortgage if the right to do so is even now subsisting. Accordingly, even if the original mortgagees got the mortgage amount by sub‑' mortgaging the property that by itself will not put an end to the original [C mortgage which will still subsist and the original mortgagors have no right to directly terminate the sub‑mortgage independent of the original mortgagees.

16. In the case in hand, in order to prove acknowledgment giving fresh start to the period of limitation, it is incumbent upon the mortgagors to prove the same within the four corners of the law relied upon. On going through the record of the case and the evidence produced by the parties acknowledg ment as a question of fact was never specifically raised nor proved in the trial Court. The important ingredients for attracting the provisions of section 19 of the Limitation Act that the same must be in writing and signed by the person making it is totally missing. All the sub‑mortgages were created from time to time through mutation referred to above which are not required to be signed or thumb‑impressed by the parties to the transaction. Mutations are the effect of the oral transaction entered into between the parties and reported to the relevant authority. Keeping in view that the above‑mentioned mandatory element of acknowledgment is missing in the present case, I have no hesitation in holding that the defendants appellants have utterly failed to prove a valid acknowledgment of the original mortgage giving fresh start of limitation under section 19 of the Act. The creation of sub‑mortgage unless in writing and signed by the mortgagors (original mortgagees) and proved in Court of law as a fact does not amount to acknowledgment within the meaning of section 19 of the Limitation Act.

17. In the circumstances, there is no substance in the points raised by (sic) the learned Courts below need no interference. The appeal is dismissed leaving the parties to bear their own costs.

18. In C. R. No. 174/1973 the facts of the case are that Mst. Zar Khela and others sued Nawaz Khan and 45 others for declaration that they have become owners of the suit land by prescription being mortgagees in possession for more than 60 years. The suit property was mortgaged by the predecessor of some of the defendants in favour of the predecessor of the plaintiffs vide mutation No. 766 dated 16‑3‑1888 (wrongly shown as attested on 16‑3‑1988 in the plaint). This property was subsequently sub‑mortgaged by the pre decessor of the plaintiffs (first mortgagee to the predecessor of some of the respondents) vide mutation No. 266 dated 6‑8‑19J

3. These sub‑mortgagees created further sub‑mortgages from time to time. However, there is no denial of the fact that the original mortgage created in 1888 has not been redeemed so far. Accordingly the plaintiff being the first mortgagee claims to have pres cribed title to the disputed property by prescription. In the written statement in the case, a successor of the sub‑mortgage contested the suit inter alia raising the plea of limitation. They further claimed to have become owners by prescription being time‑barred sub‑mortgagees for more than 60 years in their own rights. Both the Courts below have concurrently held the sub‑mortgagees (respondents) having become owners by prescription on the basis of their possession of the suit property as sub‑mortgagees since 1903.

19. The petitioner in this case, however, contends that after 1903, these sub‑mortgagees have created further sub‑mortgagees from time to time as is evident from the copy of goshawara of mutation Exh. P. W. 1/4. According to them the creation of further sub‑mortgagees the last being of 1923, amounts to an acknowledgment of the rights of the first mortgagees to redeem the same. However, as has been discussed earlier, there being no evidence that the acknowledgment was in writing duly signed by the person making the p alleged acknowledgment and there being no legal evidence the provisions, of section 19 of the Limitation Act will not be attracted to the case. As no other point is involved, therefore, this revision petition for the reasons given in the connected appeal, is dismissed with no order as to costs. S. Q. Petition dismissed.