2010 PLP 1605 (MLD)

ATTAULLAH KHAN, J.

A suit was filed by Najibullah son of Habibullah, plaintiff/petitioner, in the trial Court against the respondents/defendants for declaration to the effect that he has become owner of the suit property through prescription against the mortgagors for redeeming the land for more than sixty years. Another suit was filed by respondent No.1 in the trial Court against the petitioner and others for a declaration that he is owner of the suit property as the same had been redeemed and the provision has been declared as un-Islamic.

2. Both the suits are contested by the contesting defendants and the trial Court framed necessary issues emerged from the pleadings of the parties. After recording evidence and hearing arguments, the suit filed by Najibullah, petitioner/plaintiff bearing No.382 of 2001 was decreed on 4-3-2008.

3. The other suit filed by Badshah Khan, respondent No.1 after completing necessary formalities was dismissed vide judgment and decree dated 23-9-2006.

4. Both the judgments were challenged in appeal before the District Court. The learned Additional District Judge Lakki Marwat vide his judgment dated 4-3-2008 accepted the appeal and set aside the judgment and decree dated 23-9-2006 in Suit No. 382 of 2001. Similarly, the same Court vide its judgment and decree dated 4-3-2008 accepted the appeal and decreed the Suit No.443 of 2001.

5. Both the above mentioned judgments and decrees passed by the learned Additional District Judge Lakki Marwat have been impugned in these two Revision Petitions Nos. 58 and 59 of 2008.

6. Since same question is involved, therefore, I propose to decide both these revision petitions through this common judgment.

7. Counsel for the parties heard and record of the cases perused in the light whereof my discussion is as under:--

8. In these cases, the main issue is as to whether the right of redemption of the mortgagors has been extinguished and the mortgagee is entitled to ownership through prescription in the light of apex judgment reported in 1991 SCMR 2063.

9. The main argument of the learned counsel for the petitioners is that since the honourable Supreme Court of Pakistan vide above judgment has declared section 28 of the Limitation Act as un-Islamic, therefore, he be declared as owner as the redemption right of the contesting defendants have been extinguished. He further argued that the respondent is not entitled to the decree because his right of redemption is no more available.

10. On the other hand, the stand taken by the opposite counsel is that in this case the mortgagor has instituted suit in the year, 1997 and the decree was not obtained on or before 31-8-1991 which is the target date fixed in 1991 SCMR 2062, therefore, he is not entitled to decree.

11. Through the above judgment, the honourable Supreme Court has declared section 28 the Limitation Act as repugnant to the injunctions of Islam. The findings are, for reasons recorded therein, the Court is unanimous in holding that section 28 of the Limitation Act 1908 (Act IX of 1908) is repugnant to the injunctions of Islam and so far it provides for extinguishment of right and the property and determining the period prescribed for institution of a suit for possession of the suit property. It has been further held that this decision was to take effect from 31-8-1991 and on this date section 28 aforesaid was also seized to have effect.

12. It is very much clear from the above observations that after the target date, the provisions of section 28 of the Limitation Act are not in existence, therefore, in case the decree is not obtained on or before that date, the right would stand extinguished. It is now well-settled principle that no decree could be passed on the ground of adverse possession after the target date of 1991 because of declaration of section 28 of the Limitation Act as un-Islamic and similarly no plea of adverse possession could be raised in defence. 'The institution of suit for a declaration in case a mortgagee has become the owner through prescription, is a pre-condition because a mortgagee cannot become an owner automatically and he has to prove his right in the Court. Therefore, it is incumbent upon him to bring a suit and seek declaration and it is only then that he would be vested with a title after such declaration is issued by the Court.

13. In this case admittedly the mortgagee petitioner has filed the suit after the target date, i.e. 31-8-1991, therefore, he will not be entitled to any decree. Reliance may be placed on the case of Durrani and others v. Hameedullah reported in 2007 SCMR 480, wherein it has been held as follows: "That the suit for declaration of title could be filed only if the mortgagor is fortunate to obtain decree before 31-8-1991, because after the aforesaid target date, the right or title of the mortgagor shall not be deemed extinguished. We, therefore, hold that if a mortgagee makes an option to bring a suit for declaration of title, it must be brought as to obtain a decree before 31-8-1991. A similar view has been taken by the said Court in the case of Muhammad Hussain (2004 SCMR 1137).

14. In view of my above discussion, and the judgment of the apex Court, I am of the opinion that there is no force in both the revision petitions which are accordingly dismissed leaving the parties to bear their own costs. H.B.T./189/P Petitions dismissed.