2003 PLP 589 (SCMR)

Date of hearing: 17th October, 2002. IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑These appeals bye leave of the Court are directed against judgment dated 9th June, 1996 of Peshawar High Court, Peshawar. Concluding para. from leave granting order is reproduced herein-below:‑‑ "It was contended by the learned counsel for the petitioners that the learned Courts below erred in holding that Mutation No.20247 attested on 7‑3‑1926 whereby additional mortgage amount was secured from the mortgagees is a novation of the mortgage agreement and as such fresh period of 60 years would be counted from such date. According to learned counsel there were two Mutations Nos.20246 and 20247 attested on 7‑3‑1926. Through the first mutation which is mutation of "ﻞﻴﻤﻛﺗ ﻖﻓ"and Mutation No.20247 is regarding "ﻥﻫﺮ ﺭﺰ ﻯﺪﺍﺯﻴﺍ" therefore, such redemption and attestation of fresh mutations would not amount to novation of contract in view of the judgment of this Court in Nazeef v. Abdul, Ghaffar and others (PLD 1966 Supreme Court 267). "

2. Precisely stating the facts of the case are that the appellants (plaintiffs) filed a suit for declaration to the effect that they have become owners of the suit land, details whereof were given in the plaint by prescription. Simultaneously the respondents also filed a suit for possession on 18th March, 1979 inter alia contending that the land in‑dispute was mortgaged as back as in 1903/1904 and the original mortgagee sold his rights to one Faulad vide Mutation No.15681 attested on 25th November, 1920. He is turn sold his mortgagee rights through Mutation No.24962 attested on 25th August, 1935 to their predecessor‑in‑interest. Later on vide Mutation No.27347 attested on 11‑1‑1937 the mortgage has been novated, therefore, as per their claim they are entitled for the redemption of the land.

3. The appellants resisted the suit filed, by the respondents for redemption of the property.

4. Learned trial Court consolidated both the suits and framed issues arising out of the pleadings of the parties including the following two issues which are reproduced herein-below being necessary for disposal of the case:‑‑ "(1) Whether the plaintiffs have become owners of the suit land on account of time‑barred mortgage for more than sixty years? (2) Whether the defendants are entitled to the decree for possession by redemption as prayed for?

5. Learned trial Court by means of a consolidated judgment dated 5th September, 1992 dismissed the suit of the appellants for declaration whereas the suit filed by the respondents for possession by redemption was decreed. The District Judge, Karak dismissed appeals filed by the appellants on 17th February 1993. Similarly revision petitions filed by the appellant were also dismissed vide impugned judgment dated 9th June, 1996.

6. Learned counsel for appellants relying upon the judgment of this Court in the case of Nazeef v. Abdul Ghaffar and others (PLD 1966 Supreme Court 267) argued that mutation entries being Nos.20246 and 20247 attested on 7th March, 1926 have not novated the previous mortgage except further creating monetary charge on the property in the sum of Rs.150 and as far as Mutation No.20246 is concerned it is a "Fakki‑e‑Takmeel" whereas Mutation No.20247 is in respect of "Azadi Zar Rehan". According to him, had the parties novated the previous mortgage it was incumbent upon the predecessor‑in‑interest of the respondents to have taken back the possession from the appellants and when the possession remains with them just to complete a formality in one of the mutation it was mentioned as "Fakki‑e- Takmeel" whereas in second mutation entry i.e. 20247 expression "Azadi Zar Rehan" indicates that additional amount was taken without making payment of previous one, therefore, the respondents' suit for possession through redemption was hopelessly barred by time because limitation of 60 years shall run against them from 1903/1904 thus, during this period the appellants by prescription have become the owners of the property. 7 On the other hand learned counsel for the respondents contended that both the mutation entries i.e. 20246 and 20247 dated 7th March, 1926 have created a new contract of mortgage because besides making payment of Rs.150 the appellants predecessor‑in-interest have also agreed to reduce the period of limitation to three years therefore, on account of their such conduct it would be deemed that a new mortgage in respect of the same property had taken place, as such from 1926 to onward the respondents had a right to redeem the property within the period of 60 years in terms of Article 148 of the Limitation Act. As such the suit filed by respondents in 1979 was quite in time and for such reasons learned High Court did not grant relief to appellants.

8. We have heard learned counsel for parties and gone through the impugned judgments carefully. The fate of instant appeals solely depends upon interpretation of contents of mutation entries Nos.20246 and 20247 attested on 7th March, 1926. In the column of the ownership the name of predecessor‑in‑interest of the respondents namely Sarbuland finds mention without any indication that allegedly before novating mortgage agreement possession of the land was taken over by the predecessor‑in‑interest of the respondents from the predecessor‑in‑interest of the appellants in order to complete the process of redemption. Inasmuch as in the column meant for remarks the word "Fakki‑e‑Takmeel" has been mentioned which according to our opinion, is an entry to complete a formality. In the judgment in the case of Nazeef (ibid) which has been relied upon by the learned counsel for the appellants somehow in identical situation this Court observed that on account of such entry the status of the previous mortgage could not be changed. As far as the Mutation Entry No.20247 is concerned it contains a most important expression i.e. "Azadi‑Zar‑Rehan" which means that the additional charge was created on the mortgaged property because the mortgagors had accepted an amount of Rs.150 in addition to the amount which was already payable. The contention of the learned counsel for the respondents that conduct of the parties is relevant to adjudge whether there is a novation of agreement or otherwise. To substantiate his plea he has referred to the column meant for remar in Mutation No.20247 and submitted that the parties had agreed to reduce the period of three years for redemption, therefore, it may be treated that new mortgage was created. We are afraid the contention raised by the learned counsel is not acceptable firstly for the reason that the time was not essence of the contract and secondly the parties cannot be allowed to reduce the period of limitation at their convenience qua the period, which has been prescribed by law. Besides it if this contention of the learned counsel for respondents is accepted then a suit for redemption should have been filed within the period of three years but they did not do so, therefore, it would be presumed that the respondents by their conduct themselves did not adhere to the condition of the period of three years for filing suit for redemption. He also contended that in Mutation Entry No.20247 in the column of remarks an entry of mortgagor has been made but in the column meant for entry which is to stay after the attestation of mutation the word 'mortgagor' was omitted, therefore, it may be presumed that new mortgage contract was executed. This argument is not available to him because this document has to be read, as a whole with reference to the context and merely for the reason that a particular expression or word is omitted it does not mean that the status of the document has been changed. Therefore, we are of the considered opinion that attestation of Mutation No.20247 dated 7th March, 1926 would not amount to novation of contract in view of the judgment in the case of Nazeef (ibid).

9. Learned counsel for the appellants then contended that as the respondents did not file a suit for redemption of the property within the period of sixty years as per the provisions of Article 148 of the Limitation Act, therefore, respondents had lost their proprietary rights over the land in dispute and by prescription appellants have become the owners of the land. To substantiate his plea he has placed reliance on Ismail and 22 others v. Rehmat Ali and 15 others (1993 SCMR 92).

10. Learned counsel for the respondents could controvert this argument of learned counsel for appellants successfully. It may be noted that this Court in the judgment of Maqbool Ahmad v. Hakoomat‑e‑Pakistan (1991 SCMR 2063) declared the provisions of section 28 of the Limitation Act as repugnant to the Injunction of Islam to the extent as it deals with extinguishments of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said property. However, in this case the provisions of Article 148 of the Limitation Act relating to the filing of the suit for possession through redemption was not discussed that is why for such reasons this Court In the case of Ismail (ibid) has held that if a mortgagor has not fled a suit for redemption within time he would lose his proprietary rights over the property and the mortgagee who is in possession of the mortgaged land by prescription would be deemed to be the owner of the property. Thus for the above reasons we are of the opinion that impugned judgment is not sustainable in the eye of law, therefore, on accepting, both the appeals the suit filed by the appellants for declaration that they have become owners of the suit land by prescription is decreed whereas the suit of the respondents for possession through redemption of the property is dismissed leaving the parties to bear their own costs. M.B.A./K‑76/S Appeal accepted.