2016 PLP 2584 (YLR)
GUL ALAM ZAR KHAN and 27 others — Petitioners Versus HAIDER ALI and 29 others — Respondents
| Citation | 2016 PLP 2584 (YLR) |
| Forum / Court | Peshawar (Bannu Bench) |
| Bench Members | Muhammad Younis Thaheem, J |
| Parties | GUL ALAM ZAR KHAN and 27 others — Petitioners Versus HAIDER ALI and 29 others — Respondents |
| Primary Law | Transfer of Property Act (IV of 1882) |
Q1: What are the key laws and sections cited in 2016 PLP 2584 (YLR)?
This judgment primarily cites: Transfer of Property Act (IV of 1882) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2016 PLP 2584 (YLR)?
The case was heard and decided by the Peshawar (Bannu Bench) bench comprising: Muhammad Younis Thaheem, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2016 PLP 2584 (YLR) (GUL ALAM ZAR KHAN and 27 others — Petitioners Versus HAIDER ALI and 29 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Zahir Shah and Masood Iqbal for Petitioners.
- Ahmed Jan and Khosh Ameer Khattak for Respondents.
- 6. The learned counsel for petitioner submitted that the impugned judgments and decrees passed by both the learned courts below are against facts and law. He vehemently argued that according to revenue record, the suit land was mortgaged much before in the year 1886 and the entries of the same were made in first-ever modern settlement of revenue record in the year 1887-88. It was mortgaged by the predecessor of present respondents Nos.1 to 15, namely Balkhey or Malkey son of Cutt to a non-Muslim namely Ram Chand son of Jewan Das for the first time and thereafter the L.Rs. of Ram Chand namely Gogal Chand transferred his mortgagee rights to Faqir Shah son of Awzar Gul, the predecessor of present petitioners and other proforma respondents Nos.16 to 30 vide mutation No.2872 attested on 14.8.1946. He argued that original mortgage has not been redeemed by the owners, therefore, in view of Article 148 of the Limitation Act, 1908 thus suit of the plaintiffs/respondents is badly time barred and was liable to dismissal, but learned appellate court below had overlooked this legal aspect of the case. He placed reliance on the case law of the apex Court reported in PLD 2003 SC 412, 2003 MLD 1537, 2003 SCMR 299 and on an unreported judgment of this Court in Writ Petition No.1-B of 2000 titled "Hayat Mir and others v. SMBR" decided on 11.12.2014. The learned counsel for petitioner further argued that due to prescription and after the expiry of 60 years i.e. the prescribed period from their predecessors since 1886-87, the petitioners had become owners of the suit land and this legal aspect escaped the notice of the learned two courts below. Reliance in this respect was placed on the dicta handed down by the Hon'ble Supreme Court of Pakistan in the case titled "Muhammad Maqbool v. Federal Govt." (1991 SCMR 2063). The learned counsel further added that by the transfer of mortgagee rights by one mortgagee to the subsequent mortgagee, it could not be termed as novation. In the instant case, both the learned courts below have wrongly taken the date of mutation No. 2872 as 14.8.1946 i.e. the point of start of period of limitation and had not taken and reckoned the period of limitation from 1886-87 and thus have erred in law and facts, so the judgment and decree of both the learned courts below deserve to be set at naught and suit of the plaintiffs/ petitioners (Mortgagees) is liable to be decreed.
- 7. Conversely, the learned counsel for respondents (Mortgagors) argued that from the record it has been abundantly proved that the respondents are owners as legal heirs of original mortgagors, whereas the present petitioners are mortgagees since 14.08.1946; that section 28 of the Limitation Act has been declared against the injunction of Islam by the Hon'ble Supreme Court of Pakistan. In this respect the learned counsel also relied upon the judgment of Hon'ble Supreme Court in the case of Muhammad Maqbool supra. The learned counsel thus argued that the question of attaining the title by mortgagees upon the expiry of 60 years does not arise. He argued that according to Section 148 of the Limitation Act, prescribed period for redemption is 60 years, which has not been expired and does not attract the facts and circumstances of this case as novation has been made time and again; that it was usufructory mortgage and mortgagees are in possession of mortgaged property and are receiving its usufructs, hence, they are entitled for its redemption and both the courts below have properly appreciated the evidence and law on the subject, which needs no interference by this court in exercise of its revisional jurisdiction. In this regard the learned counsel for respondents relied on "Nawaz Ali Khan v. Nawab Zada (PLD 2003 SC 425); 2009 SCMR 191; PLD 1989 SC 688; 2007 SCMR 805 and 2002 CLC 1533.
- 18. So, both the learned courts below while adverting to the question of novation, prescription, question of usufructory mortgage and limitation had correctly appreciated facts and the law on the subject. The case law referred by the learned counsel for petitioners is not attracted to the facts and circumstances of this case hence could not be pressed into service.
Headnotes / Summary
S. 60
Limitation Act (IX of 1908), S. 20 (2)
Suit for possession through redemption
Effect
Usufructuary mortgage
Scope
Suit land was mortgaged for 60 years but before the expiry of limitation subsequent mutation was attested showing novation of contract
Mortgagee rights were further transferred prior to expiry of period fixed in the mortgage deed and fresh period for next 60 years would start from the date of subsequent mutation of mortgage
Defendant acquired mortgagee rights with the knowledge that previous mortgagees were not owner of the property which would amount the acknowledgment of facts that a fresh contract had been executed
Time for filing suit for redemption of mortgage would start from the date of attestation of subsequent mutation
Time for initiating proceedings for redemption would be deemed to have extended automatically for onward next 60 years
No question of attaining title by mortgagees on prescription on expiry of 60 years would arise
Mortgagee in question was usufructuary in nature who had been enjoying and receiving the usufructs ever since creation of mortgage
Where mortgagee were in possession and were receiving the usufructs of suit land then such receiving of usufructs would be considered as an "acknowledgment" of mortgage
Every receipt of usufruct would give rise to a fresh period of limitation
Question of novation, usufructuary mortgage and limitation had correctly been appreciated by the courts below
Findings recorded by the courts below were based on proper appreciation of evidence
Revision was dismissed in circumstances. Nawaz Ali Khan v. Nawab Zada PLD 2003 SC 425; 2009 SCMR 191; PLD 1989 SC 688 and 2007 SCMR 805 ref. PLD 2003 SC 412; 2003 MLD 1537 and 2003 SCMR 299 distinguished. Muhammad Maqbool v. Federal Government 1991 SCMR 2063; and Muhammad Iqbal v. Ghousuallah Khan and others 2002 CLC 1533 and Abdul Haq v. Ali Akbar and others 1999 SCMR 2531 rel.
Judgment & Decree
MUHAMMAD YOUNIS THAHEEM, J.
Through the instant revision petition, the petitioners have challenged the concurrent judgments and decrees dated 29.01.2014 passed by the learned Additional District Judge Karak, and judgment and decree dated 28.11.2012 of the learned Civil Judge-II, Karak, whereby suit of the respondents for possession through redemption was decreed against the petitioners, while their suit for prescription was dismissed.
2. Brief facts of the case are that respondents Haidar Ali etc., filed a suit for redemption of suit property fully detailed in the plaint to the effect that the suit property was mortgaged in the year 1886-87 with possession (Bila Miyad) by the forefather of present respondents namely Malkhy/ Mulkay son of Katt, to one Ram Chand son of Jewan Das, resident of Metu Khel, in lieu of Rs.90/- Kabli currency, and afterwards the same mortgagee rights were time and again transferred to others and lastly the same mortgagee rights were transferred by the legal heirs of said Ram Chand, namely, Gokal Chand etc in favour of Faqir Shah son of Awazar with possession, hence, the respondents Haider Ali and others, who are the legal heirs of Malkhey instituted suit for decree of redemption of mortgaged property.
3. On the other hand, the petitioners i.e. the descendents of Faqir Shah also filed a suit for declaration to the effect that the suit property was mortgaged to them vide Mutation No. 2872 dated 14.08.1946 by the son of original mortgagee Gokal Chand and by the efflux of time, they became owners of mortgaged land on the basis of principle of prescription being coming in possession since long from their predecessor Faqir Shah, who got mortgagee rights from said Gokal Chand and respondents /legal heirs of original Mortgagor have no right to redeem it.
4. Both the suits were consolidated by the learned trial Court and consolidated issues were framed. After recording pro and contra evidence and hearing arguments, the learned trial Court decreed the suit of the respondents for redemption of the suit property, whereas suit of the petitioners for seeking declaration of title on the basis of prescription was dismissed.
5. Aggrieved from the judgment and decree of the learned trial court, the petitioners filed Regular Civil Appeal before the learned District Judge Karak, which was entrusted to the Court of learned Additional District Judge-I Karak, for disposal, who after hearing dismissed it vide judgment and decree dated 29.01.2014, hence the instant revision petition.
6. The learned counsel for petitioner submitted that the impugned judgments and decrees passed by both the learned courts below are against facts and law. He vehemently argued that according to revenue record, the suit land was mortgaged much before in the year 1886 and the entries of the same were made in first-ever modern settlement of revenue record in the year 1887-88. It was mortgaged by the predecessor of present respondents Nos.1 to 15, namely Balkhey or Malkey son of Cutt to a non-Muslim namely Ram Chand son of Jewan Das for the first time and thereafter the L.Rs. of Ram Chand namely Gogal Chand transferred his mortgagee rights to Faqir Shah son of Awzar Gul, the predecessor of present petitioners and other proforma respondents Nos.16 to 30 vide mutation No.2872 attested on 14.8.1946. He argued that original mortgage has not been redeemed by the owners, therefore, in view of Article 148 of the Limitation Act, 1908 thus suit of the plaintiffs/respondents is badly time barred and was liable to dismissal, but learned appellate court below had overlooked this legal aspect of the case. He placed reliance on the case law of the apex Court reported in PLD 2003 SC 412, 2003 MLD 1537, 2003 SCMR 299 and on an unreported judgment of this Court in Writ Petition No.1-B of 2000 titled "Hayat Mir and others v. SMBR" decided on 11.12.2014. The learned counsel for petitioner further argued that due to prescription and after the expiry of 60 years i.e. the prescribed period from their predecessors since 1886-87, the petitioners had become owners of the suit land and this legal aspect escaped the notice of the learned two courts below. Reliance in this respect was placed on the dicta handed down by the Hon'ble Supreme Court of Pakistan in the case titled "Muhammad Maqbool v. Federal Govt." (1991 SCMR 2063). The learned counsel further added that by the transfer of mortgagee rights by one mortgagee to the subsequent mortgagee, it could not be termed as novation. In the instant case, both the learned courts below have wrongly taken the date of mutation No. 2872 as 14.8.1946 i.e. the point of start of period of limitation and had not taken and reckoned the period of limitation from 1886-87 and thus have erred in law and facts, so the judgment and decree of both the learned courts below deserve to be set at naught and suit of the plaintiffs/ petitioners (Mortgagees) is liable to be decreed.
7. Conversely, the learned counsel for respondents (Mortgagors) argued that from the record it has been abundantly proved that the respondents are owners as legal heirs of original mortgagors, whereas the present petitioners are mortgagees since 14.08.1946; that section 28 of the Limitation Act has been declared against the injunction of Islam by the Hon'ble Supreme Court of Pakistan. In this respect the learned counsel also relied upon the judgment of Hon'ble Supreme Court in the case of Muhammad Maqbool supra. The learned counsel thus argued that the question of attaining the title by mortgagees upon the expiry of 60 years does not arise. He argued that according to Section 148 of the Limitation Act, prescribed period for redemption is 60 years, which has not been expired and does not attract the facts and circumstances of this case as novation has been made time and again; that it was usufructory mortgage and mortgagees are in possession of mortgaged property and are receiving its usufructs, hence, they are entitled for its redemption and both the courts below have properly appreciated the evidence and law on the subject, which needs no interference by this court in exercise of its revisional jurisdiction. In this regard the learned counsel for respondents relied on "Nawaz Ali Khan v. Nawab Zada (PLD 2003 SC 425); 2009 SCMR 191; PLD 1989 SC 688; 2007 SCMR 805 and 2002 CLC 1533.
8. Arguments heard and record perused.
9. From the perusal of record it reveals that initially the suit land was mortgaged in lieu of Rs.90 Kabli currency of that time before British occupation of our mother land by Malkhey/Mulkey son of Kutt to one Ram Chand son of Jevendas resident of Mitha Khel, Karak. The relevant record of Misl-e-Haqiyat placed on record pertaining to first ever settlement for the year 1886-87 is EX.APW2/1 while Jama bandi pertaining to the year 1903-04 is EX.APW1/1 wherein it is shown that Show Rang etc, the L.Rs. of Malakhy Khan had mortgaged the suit land in favour of Gokal Chand etc., who both are the legal heirs of original mortgagor and mortgagees. In such like cases evidence of ADK is important who has brought record pertaining to different transactions of mortgage, sub-mortgages, further sub-mortgages entered in mutations from the year 1886-87 till 14.8.1946. ADK appeared as APW-1 who produced record/Misl-e-Haqiyat pertaining to year 1886-87 as EX.APW1/1, Record pertaining to year 1903-04 as EX.APW1/2, Fard Jamabandi for the year 1943-44 till 1964-65 as EX.APW1/3, copy of mutation No.2514 attested on 19.10.1942 as EX. A PW1/4, copy of mutation No.2689 attested on 20.8.1944 as EX.APW1/5, copy of mutation No.2737 attested on 5.01.1945 as EX.APW1/6, copy of mutation No.2872 attested on 14.8.1946, as EX.APW1/7. This APW-1 further produced record pertaining to mutation No.1948 attested on 15.02.1936 as EX.APW1/8 and Fard Jamabandi since 1908-09 till 1939-40 as EX.APW1/9.
10. According to Fard Jamabandi pertaining to year 1952-53 placed on record as EX.APW1/3, one Badshah Shehzada son of Show Rang, Mst. Gul Jehan Bibi D/o Show Rang, Nowrang son of Gul Khan, Khab Nar Shah, Ali Badhsh sons of Gulan are shown in column of ownership as mortgagors while Faqir Shah son of Awzar Gul is shown as mortgagee. Same entry has been shown in the Jamabandi pertaining to the year 1956-57, 1965-66. According to mutation No.2514 before the expiry of 60 years the contract of mortgage was renewed vide sub-mortgage mutation No.2514 attested on 19.10.1942 and if period is to be reckoned from the year 1887, then the novation or fresh contract was made by Show Rang etc in favour of Gokal Chand vide mutation No. 2514 attested on 19.10.1942, as discussed above, and the same sub-mortgagee rights were further transferred vide mutation No.2689 as EX.APW1/5 by Mir Badshah son of Gul Faraz and it was further sub-mortgaged to Wazir Azam son of Nek Qadam vide mutation No.2737 attested on 05.01.1945 as EX.APW1/6 as fresh contract of
11. So, it is proved from the record that the plaintiffs/respondents Haidar Ali and others are owners as well as mortgagors and the present petitioners/ defendants are the mortgagees with possession.
12. Perusal of the record as well as evidence available on file reveals that originally the suit land was mortgaged by the predecessor of the present respondents in favour of one Ram Chand in the year 1886 and by adding 60 years the time of expiry was the year 1946, but before expiry of limitation subsequent mutation No.2514 was attested on 19.10.1942, showing novation of contract between the original owners as mortgagors and between the mortgagees Gokal Chand etc. Record reveals that lastly the mortgagee rights vested in favour of Gokal Chand etc which were further transferred vide mutation No.2872 attested on 14.8.1946 to the sub-mortgagee much before the expiry of new start of 60 years from 1942 onwards to 1946 in the name of Faqir Shah and the law ordains that fresh period for next 60 years would start from the date of subsequent mutation of mortgagee rights in favour of subsequent mortgagee, as a novation created by new contract.
13. After transfer of the mortgagee rights by Gokal Chand in favour of subsequent mortgagee, Faqir Shah the predecessor of present petitioner acquired mortgagee rights vide above said mutation on 14.8.1946 with possession, with full knowledge that previous mortgagee was not owner of the property and afterward had no relation or liaison with the legal heirs of original mortgagors which amounts the "acknowledgment" of facts that a fresh contract between him and the previous mortgagee had been executed which is a novation about mortgagee rights and the time for filing suit for redemption of mortgage would start from the date of attestation of subsequent mortgagee rights mutation.
14. In the instant case the date of novation vide mutation No. 2872 is 14.8.1946. So on such "acknowledgement" by entering into fresh contract on 14.8.1946, the predecessor of present petitioner Faqir Shah "acknowledged" the rights of the original mortgagors, therefore, on such "acknowledgement "the time for initiating the proceeding for redemption shall be deemed to have extended automatically for onward next 60 years.
15. Acccording to simple calculation the date of mutation is 14.8.1946 which is taken as base time to reckon the time for filing of suit of redemption, while the suit was filed by the respondents on 23.02.2006, before expiry of 60 years, is also well within time.
16. As section 28 of the Limitation Act has been declared against the injunction of Islam by the Hon'ble Supreme Court of Pakistan vide its judgment "Muhammad Maqbool case 1991 SCMR 2063 so, no question of attaining title by mortgagees on prescription on the expiry of 60 years would arise. In this respect wisdom is derived from the case titled "Abdul Haq v. Ali Akbar and others (1999 SCMR 2531).
17. From documentary evidence on record particularly the revenue record it transpires that mortgage in question was usufructory in nature i.e. possession of mortgaged land remained with original mortgagees and later on to other sub- mortgagees who had been enjoying and receiving the usufructs ever since the creation of mortgage. It is now settled legal position that where mortgagees are in possession of the mortgaged property and are receiving the usufructs of suit land such receiving of usufructs would be considered as an "acknowledgement" of mortgage and counted towards the payment of mortgage money within the terms of section 20(2) of the Limitation Act and every receipt of usufruct would give rise to a fresh start of period of limitation. Reliance is placed on the judgment of this Court in case titled "Muhammad Iqbal v. Ghousullah Khan and others 2002 CLC 1533.
18. So, both the learned courts below while adverting to the question of novation, prescription, question of usufructory mortgage and limitation had correctly appreciated facts and the law on the subject. The case law referred by the learned counsel for petitioners is not attracted to the facts and circumstances of this case hence could not be pressed into service.
19. So, in the light of above discussion, it is held that the findings of two courts below are based on proper appreciation of evidence and law and no exception could be taken against them, so the present petition on being bereft of merit is dismissed. ZC/120/P Revision dismissed.