1992 PLP 2188 (SCMR)

WALI MUHAMMAD KHAN, J.‑‑‑Faqir Muhammad and others, petitioners herein, seek leave‑to appeal against the judgment, of the Peshawar High Court dated 4‑2‑1992, whereby the Writ Petition No.31/89 filed' by Muhammad Akram Khan and others, respondents herein, was accepted and by setting aside intervening orders of the Senior Member, Board of Revenue, Additional Commissioner, Hazara and that of the Collector, the initial order passed by the Collector, Mansehra dated 28‑3‑1978, was restored. The undisputed facts of the case are that Muhammad Akram Khan and others, respondents herein, filed an application for restitution of mortgaged land measuring 25 Kanals comprised in Khasras Nos.1089‑1090 situated in the estate of Behali, Tehsil and District Mansehra, without payment or mortgage charge against Faqir Muhammad and others, petitioners herein, and also for the recovery of possession of the mortgaged land. The same was accepted by the Collector vide order dated 28‑3‑1978, but on appeal before the Additional Commissioner the case was remanded back to the Collector. He maintained‑his earlier order of redemption vide order dated 7‑10‑1982 but declined delivery of physical possession on the grounds that the mortgagee was in possession as tenant‑at‑will at the time of the mortgage and that only symbolical possession was to be delivered. The respondents being dissatisfied challenged the same, before the Additional Commissioner who, strangely enough, rejected the appeal but, at the same time, remitted the case back to the Collector for assessment of compensation for improvements allegedly made by the petitioners vide his order dated 2‑10‑1984. Both the parties filed revision petitions before the Senior Member, Board of Revenue which were accepted, the order of the Additional Commissioner dated 2‑10‑1984 was set aside and that of the Collector dated 7‑10‑1982 restored. There being no other remedy available the respondents invoked the Constitutional jurisdiction of the High Court seeking physical possession of the mortgaged land on redemption and for the annulment of the orders of the special forums ordering only symbolic possession. The writ petition found favour with the learned High Court vide the impugned order dated 4‑2‑1992 whereby the original order of the Collector dated 28‑3‑1978, granting redemption with delivery of physical possession was restored and all the subsequent orders of hierarchy of special forums set aside. We have heard Mr. Abdul Hamid Qureshi, Advocate, for the petitioners, and have perused the record of the case. The only question for determination herein is whether the respondents were within their rights to claim physical delivery of possession on redemption or not. The plea of the petitioners is that their predecessor was holding the suit land as tenant‑at‑will prior to mortgage and as such they shall retain possession in spite of redemption till they are regularly evicted under the tenancy laws in vogue at the moment. This aspect of the case has been fairly dealt with by the High Court in its impugned judgment. Copies of the record‑of‑rights have been placed on the paper book. No doubt, according to the entries of Jamabandi 1915‑16 (page 45 of the paper book) Sher father of Rehmatullah in whose favour the suit land was mortgaged vide Mutation No.1415 attested on 13‑1‑1920, is recorded in possession as tenant‑at‑will but in the Jamabandi 1919‑20 (same page) the land stood in possession of the mortgagees. There is no evidence on the file to show when Sher, father of Rehmatullah mortgagee‑predecessor of the petitioners, died. When questioned about this fact, the learned counsel candidly conceded that Sher was alive at the time of mortgage in favour of his son Rehmatullah vide Mutation No. 1415 attested on 13‑1‑1920. This concession is borne out by the record as well because in the cultivation column of Jamabandi 1919‑20 the mortgagee viz., Rehmatullah is shown in possession and not the heirs of Sher Khan. It is thus manifest that Rehmatullah, predecessor7in‑interest of the petitioners, was inducted into possession in his capacity as mortgagee under the mortgage and after his death his heirs are in possession as mortgagees and are legally bound to deliver physical possession to the mortgagors/respondents on redemption. There is thus no legal infirmity in the impugned judgment of the High Court. Even if it is assumed for the sake of argument, without conceding, that the mortgagee was in possession of the suit land as' tenant‑at‑will prior to the creation of mortgage charge, even then he could not retain both the status, one that of tenant‑at‑will and the other as mortgagee at the same time. Tenant as defined in section 2, subsection (v) of the N.‑W.F.P. Tenancy Act, 1950, means a person who holds land under another person and is or but for a special contract would be, liable to pay rent for that land to that other person, but it does not include (a) an inferior land owner, or (b) a mortgagee of the right of a land owner, (c) *********** "Rent" under section 2, subsection (iii) of the Act ibid means whatever is payable to a landlord in money or kind by a tenant on account of the use or occupation of land held by him. "Mortgage," on the other hand, is defined in section 58 of the Transfer of Property Act as the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. There are several types of mortgages and in the case. in hand we are ‑concerned with usufructuary mortgage where the mortgagor delivers possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage money, and to receive the rents and profits accruing from the property in lieu of interest. It is thus apparent that both the status are inconsistent with each other, in the former the person in possession is liable to pay rent to the owner and in the latter the person in possession enjoys the usufruct in lieu of interest of the mortgage security which remains intact and so long as the same is not repaid the mortgagee is entitled to retain possession: It is thus clear that the moment the tenant obtains the property under his tenancy on mortgage from the landlord his status is converted into that of mortgagee and the status of landlord into that of mortgagor and thenceforth the relationship of tenant and landlord ceases to exist. Consequently, no question of reverting to the original status of tenant after the redemption arises. The finding of the Additional Commissioner and the Board of Revenue disallowing the delivery of possession in spite of redemption of the suit property in favour, of the mortgagor suffered from legal infirmity and was rightly annulled by the learned High Court. Resultantly the instant petition is dismissed and leave to appeal is refused. AA./F‑247/S Petition dismissed.