1980 M R 967 (PLP)

NASIM HASAN SHAH, J.‑This petition is directed against the judgment of a learned Single Judge of the Peshawar High, ,Court dated 29‑11‑1979 passed in Civil Revision No. 14 of 1978. The relevant facts briefly stated are that the rights of cultivation of the suit land, which is situated in Village Kotkay, Tehsil and District Mansehra were mortgaged by Karnal Khan, predecessor‑in‑interest of respondents (defendants in the suit) with one Dossa vide Mutation No. 587 (Exh. P. W. 1/2) which was sanctioned on 9‑1‑1975. The said Kamal Khan got the mortgage redeemed from the said Dossa through Mutation No. 794 sanctioned on 27‑11‑1917 (Exh. P. W. 1/3) and created a new mortgage of the same property in favour of one Anur Ullah (father of Abdul Jalil petitioner herein). This mutation (bearing No. 795) was also entered on 27‑11‑1917 but was sanctioned on 2‑5‑1918 (Exh. P. W. 1/4). Amirullah mortgagee subsequently sold his mortgage rights to Abdul Jalil (petitioner plaintiff in the suit) vile Mutation No. 215 dated 10-4‑1962 After many years, the successore‑in‑interest of Kamal Khan mortgagor filed a suit in the Court of Collector, Mansehra for redemption of the mortgage. Aggrieved by this action Abdul Jalil petitioner instituted a suit in the Court of Civil Judge, Mansehra on 6‑2‑1976 for a declaration that he being the mortgagee of the land in dispute for over 60 years had become its, owner by efflux of time and the mortgagors had lost their right to redeem the same and that the mortgage stood extinguished. The suit was resisted by the plaintiff/respondent, both on the legal plane as well as on merits. It was submitted that Mutation No. 587 dated 9‑1‑1915 was not relevant as it did not confer any right on the petitioner and that the relevant mortgage was created in1918 vide Mutation No. 795 whereby the right of cultivation was mortgaged with Amirullah. The suit, therefore, was premature and the plea that he mortgage stood extinguished was not tenable. On the pleadings of the parties, nine issues were framed of which Issues Nos. 1, 2 and 3 are relevant and reproduced below (1) Whether the plaintiff has a cause of action? (2) Whether the suit is immature (sic) as having been instituted before time? (3) Whether the plaintiff is entitled to the decree prayed for? The learned Civil Judge, Mansehra, found the above issues against the plaintiff and dismissed the suit. He further held that from the material placed on the record it stood established that the previous mortgage (created on 9‑1‑1915) had been ended and the mortgagor redeemed it in the year 1917 where after it was again mortgaged in favour of Amirullah on 2‑5‑1318. The new mortgage could not be considered to be in substitution of the old mortgage because there was no deed to this effect and, secondly, there existed no relationship between the new mortgaged (Amir Ullah) and the, previous mortgagee, namely, Dossa nor was Amir Ullah a. privy to the contract created vide Mutation No. 587 dated 9‑1‑1915. Consequently, he could not draw any benefit therefrom. It was held that the suit brought on 6‑2‑1976 was filed before the expiry of 60 years as laid down in Article148 of the Limitation Act reckoning the period from 27‑11‑1917 the earliest date from which the mortgage in favour of Amirullah, could be said to have originated. Hence the suit was premature and the petitioner was not entitled to the decree prayed for by him nor he had any, cause of action to sue. The suit was accordingly, dismissed by him on 30‑114977. The petitioner challenged his judgment in appeal before the District Judge, Mansehra, who concurred with the findings of the trial Court. The plea that tire should be computed from 9‑1‑1915 because Kamal Khan had mortgaged the suit land in favour of Amirullah without obtaining possession of it from Dossa was repelled. It was further observed that the perusal of the certified copy of Mutation No. 795 showed that at the time of creation of mortgage in favour of Amiruliah, the suit land was in self‑cultivating possession by Kamal Khan mortgagor: The contract of mortgage in favour of Dossa created vide Mutation No. 587 became non‑existent after the redemption of mortgage by virtue of Mutation No.

794. Therefore, the new contract of mortgage in favour of a different mortgagee Amir Ullah, could not be dovetailed with that contract. On these findings, the appeal was dismissed‑ Dissatisfied, the petitioner filed a revision petition before the Peshawar High Court. It was contended that the suit land was redeemed on 27‑11‑1917 by Kamal Khan through mortgage bearing No. 794, the same was again mortgaged in favour of Amirullah (father of the plaintiff) vide Mutation No. 795 and this mutation was entered on the same day, although attested on 2‑5‑1918; that Amir Ullah was already in possession of the ;Raid land, therefore, the petitioner was entitled to claim subrogation to Dossa and on that basis seek declaration in terms of section 28 read with the provisions of Article 148 of the Limitation Act, as 60 years had expired since then (i.e. 9‑1‑1915). The learned Judge in the High Court did not accept this argument as sound holding that it was not correct that the possession of the suit land was already in possession of Amirullah when the redemption mortgage (No. 794) was sanctioned and the Mutation No. 795 in favour of Amirullah entered. It was observed that the perusal of Mutation No. 795 showed that the land was in the self‑cultivating possession of Kamal Khan, the original mortgagor. Thus, the suit brought on 6‑2‑1976 was premature. The learned Judge also observed that even in the redemption mutation (No. 794) Dossa had admitted before the Revenue Officer that the property had been redeemed. Thus, Amir Ullah has nothing to do with Dossa. This mutation also showed that the land at the time was in the self‑cultivating possession of Kamal Khan. On these findings, the revision was rejected. Mr. Safdar Hussain, learned Advocate‑on‑Record for the petitioner, reiterated the submissions made before the learned Judge of the High Court that the mortgagee remained in undisturbed possession: since 9‑1‑1915, as such the rights of defendants/respondents to redeem the property and take possession thereof were extinguished on 8‑1‑1975, i.e. after a lapse of 60 years. Consequently, the suit on 6‑2‑1976 was maintainable. We have perused the relevant mutations with the assistance of the learned counsel for the parties and after carefully scrutinising them we do not think that the Courts below have been guilty of misreading the, entries contained in the relevant mutation. We agree with the learned Courts below that correct reading of the relevant mutations indicates that the suit land was in the self‑cultivating possession of Kamal Khan, mortgagor, and. therefore, the period during which the land was mortgaged in favour of Dossa could not be tagged with the mortgage created in favour of Amirullah in 1917. We, therefore, d6 not find any ground for interference. This petition, therefore, fails and is dismissed hereby. Petition dismissed.