2006 PLP 354 (CLC)

MAULVI ANWARUL HAQ, J.

On 20-6-1989 the respondents filed a suit against the petitioner. In the plaint it was stated that on 25-9-1984 the petitioner mortgaged the suit-land, measuring 4 Kanals, mentioned in the plaint, with the respondent for a period of one month with possession against the sum of Rs.1,

500. The condition was that in case the mortgaged amount is not repaid within the said period of time, the land shall stand sold to the respondent. The mortgaged money has not been paid within the said stipulated period of time. He claimed to be in possession of the land under the said agreement. With these averments, he sought a decree for declaration to the effect that he is owner of the said suit-land on the basis of said mortgage agreement which stands converted into an agreement to sell. He also sought a permanent injunction restraining the petitioner from interfering with his possession. He also prayed for a decree for specific performance of the said agreement dated 25-9-1984. The petitioner in his written statement denied having entered into any such agreement and regarding possession it was stated that respondent is in possession as his tenant. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on 18-7-1990. A first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Vehari on 1-3-1994.

2. Learned counsel for the petitioner contends that the agreement by all means constituted a mortgage with possession and the said condition constituted a clog on the equity of redemption, the same could not be enforced. He relies on the case of Abdul Sattar v. Mst. Sardar Begum and 12 others 1992 SCMR 417.

3. Learned counsel for the respondent on the other hand, argues that it was an out and out sale as held in the case of Ganu Mia v. Abdul Jammar and others PLD 1959 Dacca 293 and the suit has been correctly decreed.

4. I have gone through the copies of available records. It will be seen that the learned counsel for the petitioner has not questioned the findings recorded by the learned Courts below that the execution of the said agreement dated 25-9-1983 (Exh.P.1) by the petitioner stands proved. Now, I have already reproduced above the contents of the plaint. The said agreement (Exh.P.1) narrated that the petitioner is the owner of four acres of land in the revenue estate. He is urgently in need of money and has accordingly mortgaged one Begha (four Kanals) of land with the respondent and has delivered the possession of the same. He can cultivate the same in any manner he likes. The petitioner will repay the said amount within one month and obtain the possession failing which he will be bound to transfer four Kanals of land to the petitioner. The bare reading of the plaint and then the statement of Muhammad Sadiq, the attorney of respondent, leave no manner of doubt that primarily the land was mortgaged. Of course, the said term is there in the said document. Now, a document containing precisely the same term except that the repayment was to be made within one year came to be interpreted by their Lordships of the Honourable Supreme Court of Pakistan in the said case of Abdul Sattar. The document was interpreted with reference to the definition of a mortgage by conditional sale in section 58(c) of Transfer of Property Act, 1882 and it was held that it was not a mortgage by conditional sale as defined in the said provisions of law and in fact said condition constitute a clog on the equity of redemption and, as such, was not enforceable.

5. Now, so far as the said contention of the learned counsel for the respondent is concerned, I have already noted above that there is nothing in the plaint or in the evidence that the primary intention was to sell the land.

6. Both the learned Courts below have wrongly held the document as an agreement to sell or a sale. The civil revision is accordingly allowed. Both the impugned judgments and decrees passed by the learned Courts below are set aside. The suit filed by the respondent/plaintiff is accordingly dismissed. The petitioner may get the land redeem in accordance with law. No order as to costs. H.B.T./D-37/L???????????????????????????????????????????????????????????????????????????????????? Revision allowed.