1980 PLP 593 (CLC)

S. 60 read with Limitation Act (IX of 1908), Art. 147--Redemption of mortgage-Limitation--Period or 60 years not elapsing on day when evacuee property vested in Custodian but elapsing only sub sequently-Limitation, held, did not continue, to run against Custodian even after 1st day of March 1947, when property vested in Custodian-Pakistan (Administrat n of Evacuee Property) Act (XII of 1957), S. 5. (c) Limitation Act (IX of 1908)- -- S. 13-Redemption of mortgage-Limitation-Non-Muslim evacuees having migrated to India, beyond territorial limits of Azad Kashmir-Time for redemption of mortgage, held, ceased to run against theta and Custodian. P L D 1978 Lah. 71 ref. Abdul Ghafoor for Petitioner. Shah Wali for Respondent No. 1. Agha Ashiq Hussabr for Respondents Nos. 2 to 14. SARDAR SAID MUHAMMAD KHAN, J.--The brief facts resulting in the present writ petitions are that land measuring 39 kanals and 3 marlas comprising Survey Numbers 185 and 185-min situate in village Jarai tebsil Kotlt was mortgaged by Ghulam Ali to one Dm son of Boota Dittoo son of Wahab Din and Jiwan son of Sher Khan before 1961 13k. Din son of Boota and Jiwan.son of Sher Khan mortgagees had died and the petitioners are in possession of the disputed land as heirs of mortgages. Ghulam Ali transferred the proprietary rights of the suit land to Khaim Davi and other non-Muslim evacuees sometimes in 1959 k. The petitioner brought a suit for declaration in the Court of Deputy Custodian Koth on the 2nd of April, 1971 praying that as the statutory period of 60 years for redemption of mortgage had expired, the mortgage may be declared to be irredeemable and the Custodian had ceased to have any right or interest in the said property. The clam of the petitioner was accepted by the learned Deputy Custodian but on appeal to the learned Custodian, the order of the Deputy Custodian was set aside. The petitioners challenge the order of. the learned Custodian on the ground that it has been made in flagrant is regard to Article 148 read with section 28 of the Indian Limitation Act. The learned counsel for the petitioner has argued that view of the lea-rued Custodian there by virtue of section 5 of Pakistan Administration of evacuee Property Act of 1957 record with section 7(I) of the same act, property vests in Custodian from the Ist day of March, 19,47 and shall be deemed always to have been so vested in Custodian from that date. The main point which needs determination is whether in view of the provisions of Pakistan Administration of evacuee Property Act of 1957, the period prescribed for redemption of mortgage would continue to run against the Custodian even after the 1st day of March, 1947. The perusal of section 5 of the aforesaid Act, clearly lays down that provision of the Act and rule or order made thereunder we have effect, notwithstanding, anything inconsistent therewith contained in any other law for the time being in force, or in any instrument Having, effect by there of any such law. This clearly freezes the rights of the parties with regard to the evacuee property as they stood at the time of the vesting of the property in Custodian, J on the 1st day of March, 1947. The operation of statutory provision contrary to section 5 of Pakistan Administration of Evacuee Property Act is put at standstill and subsisting right on the aforesaid date shall vest in Custodian and shall be deemed to have always been so vested subsequently. It is true that Custodian steps into shoes of evacuees and in the instant case, the Custodian has only equity of redemption. But limitation fo re deeming the property shall cease to run against the Custodian by virtue of saving provision contained in section 5 of the Pakistan Administration of Evacuee Property Act. We find support in our view in a case reported as P L D 1971 Lah. 77. It has been held in this case that obvious intention of the sweeping provision of section 5 of the Pakistan Administration of Evacuees Property Act of 1957 is that once the property Act of 1957 is that once the property has vested in the Custodian. It shall not be taken away from him by any order or by operation of any other law. It was held in this case that mortgagee could not take benefit of section 28 of the Indian Limitation Act or Article 148 of the said Act which deals with the period prescribed for redemption of mortgage. It is admitted in the present case that period of 60 years had not elapsed on the 1st day of March, 1947 when the property vested in the Custodian. It was only subsequent to this date 6 that period of 60 years had expired. Under these: circumstances, it cannot be said that limitation continued to run against the Custodian even after the 1st day of March, 1947 when the property stood vested in the Custodian. There is yet another ground on which we are inclined to dismiss this writ petition. Under section 13 of the Limitation Act, while computing the period prescribed for any suit, the time during which a defendant has been absent front' the territory of Azad Kashmir shall be excluded. In the present case, the non--Muslim evacuees having migrated to Indian side, beyond the territorial limits of Azad Kashmir, the tune shall cease to run against theirs. It cannot be said that although tune shall cease to run against the evacuees, yet it shall run against the Custodian. The property only vests in Custodian. He cannot be reg4rded as successor-in-interest of evacuees but simply a Custodian. In a case reported as P L D 1978 Lah. 71, the property was mortgaged by evacuee to Muslim non-evacuees. The learned Custodian allowed the redemption of the mortgage by the owner of the land as the period of` 60 years had not expired on the 1st day of March, 1947. The allottee preferred a writ petition challenging the order of the Custodian allowing the redemption of mortgage. While dealing with the question, Mr. Justice Khalilur Rehman opined that period of limitation had stopped running in favour of Custodian by virtue of section 13 of the Limitation Act and on the aforesaid view of the matter, the writ petition was dismissed. In the light of 'what has been stated above, finding no force in this writ petition, it is hereby dismissed with costs. S. A. H. Petition dismissed.