2003 PLP 1692 (CLC)

Muhammad Yaqub Malik for Petitioners. Munir Ahmad Kiani for Respondents. Date of hearing: 13th May, 2003. On 19-1-1987 the petitioners filed a suit against the respondents. In the plaint it was stated that Gulzar Khan, the predecessor-in-interest of the original defendants Nos. 1, 3 and 4 had mortgaged land measuring 22 Kanals, 7 Marlas, described in the plaint, in favour of Qaim Khan, Sajawal and Pehalwan Khan, predecessors-in-interest of the petitioners as well as defendants Nos.5 and 6 in the plaint, vide Mutation No.502 attested on 4-3-1919. It was stated in categorical terms that the mortgagees remained in possession of the mortgaged land and thereafter the petitioners are in possession. Then it was stated that the said Gulzar Khan got redeemed 1/3 of the mortgaged land vide Mutation No. 1280 attested on 29-4-1939. The grievance being made out was that the names of the petitioners or their predecessors-in-interest were removed from the entire land as mortgagors. Gulzar then gifted part of the land to his wife Ali Begum (deceased defendant No. 1). There is also a reference to a gift made by the said Ali Begum in favour of Muhammad Rafiq respondent No.4 vide registered gift-deed, dated 7-10-1986. It was then stated that the petitioners became full owner of 2/3 of the land as the prescribed time of 60 years for redemption of land expired on 4-3-1979. They accordingly sought a declaration that they are the owners in possession of the said 2/3 share of the land and the said transactions by the mutation and the gift-deed are void. The suit was contested by the said defendants Nos. 1, 2 and 5 while it was conceded by defendants Nos.3, 4 and

6. Issues were framed. Evidence of the parties was recorded. The learned trial Court partly decreed the suit inasmuch it declared that the petitioners are the mortgagees and should be entered as such. It, however, refused to grant declaration of title as according to it section 28 of Limitation Act, 1908 stood declared repugnant to the Injunctions of Islam vide judgment in the case of Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2063. This was done vide judgment and decree, dated 3-3-1999 which was confirmed by a learned. Additional District Judge, Rawalpindi, while dismissing the first appeal filed by the petitioners on 19-7-1999.

2. Learned counsel for the petitioners contends that the said judgment in the case of Maqbool Ahmad not being retrospective in effect and the title having been vested in the year 1979 the relief of declaration of title could not have been denied by the learned lower Courts. Learned counsel for the respondents on the other hand contends with reference to the case of Samar Gul v. Central Government and others PLD 1986 SC 35 that the said mutation of partial redemption constitutes acknowledgment and as such limitation for redemption had not expired till the filing of the suit. Learned counsel also refers to a judgment of the learned Peshawar High Court in the case of Abdul Haq v. Ali Akbar and 12 others 1998 CLC 129 to urge that the morgagees having remained in possession and receiving the produce, the limitation stood extended on the principle of section 20 of the Limitation Act, 1908.

3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. I find myself in complete agreement with the learned counsel for the petitioners that the said judgment in the case of Maqbool Ahmad being not having retrospective effect, having effect on the date specified by the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan, the suit could not have been dismissed with reference to the same. However, the said contention of the learned counsel for the respondents/mortgagors has force. I find that the said judgment of the learned Peshawar High Court the said case of Abdul Haq was upheld by the Honourable Supreme Court of Pakistan vide judgment reported as 1999 SCMR 2531. Mr. Justice Muhammad Bashir Jehangiri (as his Lordship then was) agreed with the following observation of the Honourable Judge of the Peshawar High Court, in para. 11 and 12 of the judgment at page 2536 of the report: "

11. On the parity of reasoning aforesaid, the learned Single Judge held the view that when the mortgage is in possession of the mortgaged property and in receipt of the usufruct, such receipts are treated as payments to the mortgagee for the purpose of limitation regardless of what the intention of the party receiving the produce may be or might have been subsection (2) of section 20 of the Limitation Act, was held to have not "expressly referred to the intention of such party". Particular insertion of subsection (2) of section 20 and the specific words thereof were construed to render it altogether self-contained and even independent of the proviso preceding it concerning handwriting signature of the persons making acknowledgement. Therefore, the learned Single Judge concluded that simple possession of mortgagee and the receipt of rent or produce by him are sufficient ingredients to constitute absolute acknowledgement.

12. In these circumstances, the mortgage giving rise to this petition was held to have not become time-barred and was, therefore, rightly ordered to be redeemed, and thus, the revision petition was dismissed with costs." As stated by me above, it has been repeatedly averred in the plaint the said mortgagees/petitioners are in possession of the suit-land. This being so, the said dictum upheld by the Honourable Supreme Court of Pakistan becomes fully applicable and the equity of redemption cannot be said to have been extinguished. The civil revision, accordingly is dismissed without any orders as to costs. S.A.K./R-239/L Petition dismissed.