2004 PLP 132 (CLC)

(12) Whether the plaintiffs are entitled to the injunction as prayed? OPP (13) Relief.

4. In support of the suit the petitioners produced Muhammad Nazir Special Attorney of the plaintiffs/respondents Nos. 1 to 10 as P.W.1 and produced Exh.P.1 copy of Jamabandi for the year 1975‑76; Exh.P.2 copy of Register Haqdaran Zamin for the year 1972‑73, Exh.P.3 copy of Mutation No.849; Exh.P.4 copy of Register Haqdaran Zamin for the year 1972‑73; copy of Khasra Girdawari Exh.P.5, Exh.P.6 copy of Misl‑e -Haqiyat; EXh.P.7 copy of Misl‑e‑Haqiyat for the year 1956‑57 and copy of Mutation No.42, dated 27‑1‑1887 as Mark "A".

5. On the other hand, the defendants produced one Inayat‑ur -Rehman as D.W.1. In documentary evidence they produced power of attorney as Exh.D.1, a copy of R.L.II No.21 as Exh.D.2; copy of judgment, dated 26‑6‑1982 as Exh.D.3; copy of judgment dated 21‑2‑1983 as Exh.D.4, copy of the judgment, dated 30‑8‑1983 as Exh.D.5; copy of judgment, dated 1‑2-1973 as Exh.D.6 and copy of application dated 30‑6‑1971 as Exh.D.7.

6. After appraising oral and documentary evidence on the record, the trial Court decreed the suit in favour of the petitioners vide judgment, and decree, dated 19‑1‑1988. It was found that Mst. Fazal Nishan was not competent to alienate the suit property through mortgage in respect of the property allegedly belonging to Feroze Khan and Gohar Khan. The respondents preferred an appeal which was accepted on 22‑1‑1992. As a result, the suit was dismissed inter alia on the ground that it was time barred; the Civil Court had no jurisdiction and also upon its findings on Issue No. 11.

7. Sardar Asmat Ullah Khan, Advocate for the petitioners submitted that the mortgage created by Mst. Fazal Nishan on behalf of her minor sons Gohar Khan and Feroze Khan on 27‑1‑1887 was ab initio, void as far as the mortgage related to the rights of the said minors. The learned counsel relied upon section .11 of the Contract Act for this proposition. Reliance was also placed on the rule laid down in The Chairman District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi PLD 1976 SC 258, Karim Bakhsh v. Gul Rehman 1990 CLC 1200, Yadakattu Suryaprakasam v. Ake Gangaraju and others AIR 1956 Andhra Pradesh 33, Rambilas Singh and others v. Lokenath Chaudhuri and others AIR 1949 Pat. 405, Sardar Prasad Das v. Binaykrishna Datta AIR 1931 Cal. 393 and Firm. Bhola Ram Harbans Lal and another v. Bhagat Ram and others AIR 1927 Lah.

21. In the afore‑cited it has been consistently held that a contract effecting the rights of a minor is void and unenforceable. It is next contended that Mst. Fazal Nishan was only a limited owner and was thus incompetent to mortgage the land in. question. It was further submitted that mortgage without legal necessity by a limited owner was violative of custom and thus invalid Reliance is placed upon the case of Suba through his 7 L.Rs. v. Mst. Fatima Bibi through her L.Rs. and others 1992 SCMR 1721, Khuda Bakhsh through Legal Heirs and 8 others v. Muhammad Din through Legal Heirs and 10 others 1994 SCMR 402 and Mst. Umri v. Muhammad Boota and others 1993 MLD 1620.

8. The learned counsel for the petitioners further urged that through Exh.P.7 (Jamabandi for the year 1956‑57) the suit‑land was still treated to be under mortgage. According to the learned counsel the Muslim owners were shown as the mortgagors while the evacuee were described as mortgages. He placed reliance on Samar Gul v. Central Government and others PLD 1986 SC 35 to contend that what was acquired by the Central Government were merely mortgagee rights and that neither full ownership rights were acquired nor the same could be transferred in favour of the respondents. He further refers to Allah Yar v. Custodian of Evacuee Properties, Punjab, Lahore and others 2000 YLR 728 to urge .the same legal proposition. The learned counsel for the petitioners further argued that the property in question was never treated as evacuee property before 1‑1‑1957 and, therefore, it cannot be treated as such thereafter. According to him the transfer through R.L.II in favour of the respondents was void and ineffective upon the rights of the petitioners.

9. Challenging the findings of the learned Appellate Court upon the question of limitation, the learned counsel for the petitioners relied on the case of Mst. Izzat v. Allah Ditta PLD 1981 SC 165 and Ramzan v. Sohrab Khan and another PLD 1990 Lah. 314 for the proposition that limitation would not run against the petitioners as they were in possession and the deed of mortgage and the subsequent transfer of the land in favour of respondents was ab initio and void. It was lastly contended that mere fact that the petitioners had themselves approached the Revenue Courts for redemption of mortgage without success would not exclude the jurisdiction of the Civil Court. On the other hand the learned counsel for the respondents contended that admittedly the mortgage was made on 27‑1‑1887 by Mst. Fazal Nishan widow and Gohar Khan and Feroze Khan sons of Shah Wali in favour of non‑Muslim evacuee. No action to redeem the aforesaid‑mortgage within the stipulated period of 60 years as provided by Article 148 of the Limitation Act was taken. Resultantly, after the expiry of the aforesaid period, the right if any of the mortgagors to redeem the suit property stood extinguished.

10. In reply to the submissions made by the learned counsel for the petitioners that mortgage itself was a void transaction as the same was made by Mst. Fazal Nishan in respect of share of Gohar Khan and Feroze Khan as they were minors at the time of mortgage, the learned counsel for the respondents made reference to section 6 of the Limitation Act, 1908 to contend that the minors even if they were suffering from legal disability could have challenged the mortgage within the period of limitation when the disability had ceased. As neither Gohar Khan nor Feroze Khan from whom the petitioners are claiming right in the suit property challenged the mortgage either within, the period of limitation after obtaining majority or at any period subsequent thereto, the petitioners shall be precluded from taking any such objection. Reliance has been placed upon the cases Mahmood Khan v. Muhammad Hasan and 7 others 1991 SCMR 1566, Mst. Mushtri and 5 others v. Lajbar and 10 others 1984 CLC 1240, Ghulam Hassan v. Soharu and 131 others PLD 1984 Pesh. 278, Mst. Hanifa Begum v. Muhammad Afzal Khan and 46 others 1981 CLC 1156, Kasem Molla v. Fajel Shek and others PLD 1952 Dacca 347 and Buland Khan and 6 others v. Muhammad Rafique and 6 others PLD 1979 Lah. 237.

11. Referring to section 11 of the Contract Act, it was submitted that the mortgage, in question was made by Mst. Fazal Nishan who was the real mother of Gohar Khan and Feroze Khan and in the absence of any challenge to the said mortgage by the minors as submitted before the provisions of section 11 of the Contract Act would not be attracted.

12. It was next contended that after the migration of mortgagees to the territories now comprising India, the Central Government stepped into the shoes of the mortgagees. The period of 60 years had expired on 27th of January, 1947 and thereafter, the suit property was rightly treated as evacuee property and dealt with as such. Reference was made to sections 2; 3 and 7 of the Pakistan Administration of Evacuee Property Act (XII of 1957) to submit that the evacuee rights stood vested without any encumbrance in the Central Government which were lawfully dealt with under the provisions of the Displaced Persons (Land Settlement) Act, 1958.

13. The learned counsel referred to Exh.D.2 which is the copy of RL‑II whereby the suit‑land was permanently settled upon Salamat Ali Khan as far back as. 22‑4‑1960. It was urged that after the issuance of RL‑II, the evacuee property went out of the compensation pool and vested exclusively in the transferee. Reference was made to section 25 of the. Displaced Persons (Land Settlement) Act, 1958 to submit that jurisdiction of‑ the Civil Court stood barred under the said provisions of law the learned counsel relied upon the cases of Faiz‑ud‑Din Ahmad v. Muhammad Yousaf and another 1988 SCMR 1289, Sardar and others v. Shaukat Ali and others 1990 SCMR 951 and Said Akbar and others v. Ali Muhammad 1992 CLC 1195.

14. The learned counsel for the respondents further referred to the copy of judgment, dated 29‑6‑1982 (Exh.D.3) passed by Tehsildar/ Assistant Collector Grade‑I, Rawalpindi whereby it was held that the petitioners were in possession of the suit‑land as tenants under the transferees from the Settlement Department: The said order was challenged by Allah Dad (predecessor‑in‑interest of petitioners Nos.1 to 8) through petitioner No.1 Muhammad Nazir as special attorney. Vide judgment, dated 21‑2‑1983 passed by the A.C./Collector, Saddar Sub Division, Rawalpindi (Exh.D.4), the said appeal was dismissed. The learned Appellate Court on the review side concurred with the findings of the fact ,arrived at by Tehsildar/A.C. Grade‑I. A further revision filed under 'section 84 of the Punjab Tenancy Act, 1887 by the said Allah Dad was dismissed for non‑prosecution on 30‑8‑1983 vide Exh.D.5.

15. It is submitted that the cumulative effect of Exhs.D.3, D.4 and D.5 is that the petitioners have been lawfully held to be in occupation of the suit‑land as tenants and a decree for recovery of arrears of share produce was passed against the petitioners and in favour of the respondents. It is further contended that Iqbal, Allah Dad sons of Feroze and Mst. Ajab Jan daughter of Gohar Khan filed an application for redemption on 28‑7‑1971 before the Collector, Rawalpindi Division. `As the said petitioners failed to produce any evidence, the said application was dismissed vide order, dated 1‑2-1972 (Exh.D.6).

16. Referring to the application aforesaid, it is urged that the predecessor‑in‑interest of the present petitioners never challenged the mortgage to be illegal or void on the ground of minority of Feroze Khan or Gohar Khan. It is contended that Exh.D.7 is a simple application for redemption of the mortgage in question, the pre‑condition of which is the acknowledgement .of the legality of the same. Reliance was placed upon the cases of A.M. Kamal through Legal Heirs and others v. Lahore Improvement Trust 1997 CLC 121 and Ch. Haq Nawaz Chohan v: Ch. Tariq Azam and 43 others 1994 CLC 1530 to submit that the petitioners who have acknowledged the mortgage all along and it also filed proceedings for redemption could not be allowed to turn around and challenge the mortgage itself upon the grounds mentioned in the civil revision. It is contended that the petitioners are precluded from challenging the mortgage on the basis of principle of approbation and reprobation.

17. It was concluded that the petitioners have not indicated any infirmity in the impugned judgment of the learned Appellate Court.

18. We have heard the learned counsel for the parties and examined the record.

19. The first contention raised by the petitioners that the mortgage on behalf of the minors was ipso facto void is not sustainable. The mortgage was made on 27-1‑1887. According to section 6 of the Limitation Act. 1908, assuming that Gohar Khan and Feroze Khan were minors at the time of mortgage, the said mortgage could be challenged within the period of limitation when the disability of minority had ceased to exist. There is nothing on the record to show that Feroze Khan and Gohar Khan (predecessors‑in‑interest of the petitioners) ever challenged the mortgage after they had attained majority. In fact, the said mortgagors did not challenge the mortgage during their life time:

20. It is also on the record that Iqbal and Allah Dad sons of Feroze and Mst. Ajab Jan daughter of Gohar Khan themselves filed an application for redemption of the mortgage on 28‑7‑1971 before the Collector; Rawalpindi Division. The said application was dismissed vide order, dated 1‑2‑1973 (Exh.D.6). From a perusal of the application trade for redemption of the mortgage by the predecessors‑in‑interest of the petitioners it transpires that the legality of the mortgage had never been challenged on any ground whatsoever and what was sought was redemption of the same. The petitioners could not be allowed to approbate and reprobate, in respect of the same transaction.

21. After having consciously admitted the mortgage as valid, the petitioners and/or their predecessor‑in‑interest were precluded from challenging the same on the ground that the mortgage suffered from some presumed illegality. 21‑A. The submission of the petitioners based upon the contention that Mst. Fazal Nishan was only a limited owner and that she could not mortgage the suit‑land without legal necessity is devoid of force. The petitioners have failed to prove, through any cogent evidence that the last male holder was governed by custom and if so what that custom was. There is also nothing on the record to suggest that the mortgage was a result of fraud or even without legal necessity. As noticed hereinbefore, the predecessor‑in‑interest of the petitioners themselves had accepted the mortgage as valid and had sought its redemption. Having failed in that endeavour, the challenge to the mortgage itself is an afterthought which cannot be permitted.

22. The reliance placed by the learned counsel for the petitioners upon Exh.P.7 does not advance the case of the petitioners. Ext.P.7 is a copy of Misl‑e‑Haqqiyat which merely narrates that Mst. Ajab Jan etc. were denoted the mortgagors while the evacuees were mentioned as mortgagees. This narration alone would not be sufficient to imply that the mortgage stood extended through acknowledgment. The reliance placed I upon the case of Samar Gul and the case of Allah Yar (supra) is not relevant in the present circumstances of the case. In the case of Samar Gul (supra) the mortgage was created in 1916. The Central Government had acknowledged the right of redemption of the mortgagor through a specific notification and the mortgagor had failed to redeem the property l even, after issue of notice. The entry in the Revenue Record in that case was made through Mutation No.1764, dated 11‑1‑1969 till which date 601 years from the date of mortgage had not expired.

23. In the present case admittedly the mortgage was created on 27‑1‑1887 and the entry in the Revenue Record made in 1956‑57 (much beyond the period of 60 years) would not have the effect of acknowledgment of the mortgage.

24. It is also noticed that there is no notification of the Central Government acknowledging the right of redemption of the mortgagor.

25. Similarly, the case of Allah Yar (supra) is distinguishable on facts as in that case also. the period of 60 years had not expired in the year 1947 when evacuees left the country. It was held in that case that as the period of 60 years had not expired the limitation stopped to run and froze on 14‑6‑1947 by virtue of section 13 of the Limitation Act.

26. As already noticed the period of 60 years had elapsed in the present case on 27‑1‑1947 and as such the afore‑cited judgment shall have: no application to the instant case.

27. The submission made by the learned counsel for the petitioners that the suit property was not treated as evacuee property before 1‑1‑1957 and that it could not be treated as such thereafter is also not applicable to the facts of the present case. Admittedly the mortgage was created on 27‑1‑1887. The legality of mortgage was not challenged by any person including the petitioners or their predecessors‑in‑interest at any point of time. The right of redemption of mortgage stood terminated on the expiry of 60 years by 'operation of law and the mortgagors ceased to have any right of redeeming the mortgage after 26‑1‑1947. As the period of limitation' for redemption of mortgage had already expired, the same could not be frozen at the time when evacuee mortgagees migrated to India. For all practical purposes, the property had assumed full evacuee' interest. The Central Government stepped into the shoes of the non‑Muslim evacuees and the right in the suit property vested in the Central Government free from all encumbrances. This property was later I transferred to the respondents under the provisions of Displaced Persons (Land Settlement) Act, 1958 through R.L.II No.21 Exh.D.2. The Civil' Court had no jurisdiction in the matter as its jurisdiction stood barred under section 25 of the Act of 1958. The last submission that the suit) filed on 22‑7‑1980 was within time is also devoid of force. The copy of the plaint has been examined. It has not even been averred as to when if at all the alleged fraud in executing the mortgage dated 27‑1‑1887 was brought to the notice of the petitioners/plaintiffs. It is also on the record that the petitioners had themselves applied for redemption of the mortgage through Exh. P.7 uptil which point the, petitioners had relied upon the mortgage as a lawful transaction. Para.9 of the plaint is reproduced as under:‑‑ "That the cause of action has arisen from the last transferee defendants efforts made within last six months and finally from their final denial a week ago."

28. The petitioners have also not produced any effective evidence to suggest the starting point of limitation from a particular date of knowledge. In this view of the matter reliance placed upon the case of Mst. Izzat (supra) and the case of Ramzan v. Sohrab Khan (supra) are inapplicable to the instant case. On .the contrary, the petitioners have failed to specify any starting point of limitation based upon knowledge. Placing reliance on the dicta given in. Fatahuddin v. Sarshad and another 1973 SCMR 248 and Said Rasool v. Muhammad Tufail 1989 MLD 165, which fully applies to the facts of the present case. The suit was barred by time and was rightly held as such by the learned Appellate Court.

29. The upshot of the above discussion is that the petitioners have not been able to point out any illegality or infirmity in the judgment of the first Appellate Court. The civil revision has no merit and is hereby dismissed. Parties to bear their own costs. S.A.K./M‑2038/L Petition dismissed