1999 PLP 346 (CLC)

Wali Khan Afridi for Respondents. Date of hearing: 30th June, 1997. Through this revision petition, the defendant‑petitioners have challenged the judgment and decree of the learned Additional District Judge, Kohat, dated 6‑12‑1995 whereby he accepted the appeal of the plaintiff /respondents, set aside the judgment and decree; dated 30‑5‑1992 of the learned Civil Judge, 1st Class, Kohat and directed the plaintiffs to deposit the mortgage amount of Rs.66 within a month failing which their suit would stand dismissed.

2. As per plaint the plaintiff‑respondents are occupancy tenants of the suit property under section 5 of Punjab Tenancy Act, 1887; that the suit land was mortgaged by their predecessor‑in‑interest to the predecessor‑in‑interest of defendants 2 to 7 on payment of Rs.66; that the suit land is still mortgaged and that the defendants Nos.2 to 7 were repeatedly asked to redeem the suit property in favour of the plaintiffs and deliver the possession of the suit land to them but they refused. It was further alleged in the plaint that as the suit property is the ownership of the Provincial Government, therefore, the Provincial Government through Collector was made party in the suit.

3. The defendants‑petitioners contested the suit and the pleadings of the parties gave rise to as many as seven issues including relief.

4. After recording the evidence pro and contra and hearing the learned counsel for the parties, the learned trial Judge dismissed the suit of the plaintiff/ respondents vide his judgment and decree, dated 30‑5‑1992. Dissatisfied with the same the plaintiffs‑respondents preferred an appeal before the learned Additional District Judge, Kohat who vide his judgment and decree, dated 6‑12‑1995 accepted the appeal, set aside the impugned judgment and decree of the trial Court and passed a decree for possession through redemption of the suit land on payment of Rs.66 in favour of the plaintiffs‑respondents who were directed to deposit the mortgage money within one month from the date of the judgment, failing which their suit would stand dismissed. Hence the instant revision petition by the defendants‑petitioners.

5. I have heard the learned counsel for the parties and have gone through the record of the case with their assistance.

6. Admittedly the lease/occupancy rights were originally mortgaged by Malook in favour of Jabbar Khan vide Mutation No.90 attested on 23‑5‑1908. In the year 1914 inheritance Mutation No. 164 and partition Mutation No. 169 were attested in favour of Ulas Khan, predecessor‑in‑interest of the respondents. Vide Mutation No.492 attested on 27‑9‑1934 mortgagee rights were transferred by Khushdil Khan in favour of Mehboob. According to the statement of Mirza Ali ADK Kohat (P.W.2) and the entries in the Revenue Record as stated above, the mortgagees' rights were transferred vide Mutation No.492 attested on 27‑9‑1934, thus, mortgagees changed hands acknowledging the mortgage and accepting the liability and right of redemption of the mortgagor to redeem the mortgage in fresh period of limitation after acknowledgment. When mortgagee describes himself as mortgagee, he impliedly acknowledges the mortgagors right to redeem, and, thus, it constituted sufficient acknowledgment and fresh period of limitation accrues in favour of the mortgagor as held in PLD 1986 SC

35. The relevant para. of the ruling is reproduced below:‑‑

"The only question, therefore, that falls for determination is whether the view taken by the Courts below was correct that suit of the appellant for redemption of the mortgage was out of time and properly dismissed as time‑barred. The mortgage was created on 31st March, 1916 and the sixty years limitation computed from this date would ordinarily expire, as observed by the learned Judge in the High Court, on 31st March, 1976. On the admitted facts the appellant seems to have moved the relevant authorities for redemption of mortgage in pursuance of instructions issued by the Chief Settlement and Rehabilitation Commissioner on 1st August, 1977, and as in terms of the aforesaid instructions the period of limitation of sixty years had already expired, his request was not entertained. It has, however, beet urged with considerable force that the aforesaid memorandum of the Chief Settlement and Rehabilitation Commissioner, dated 8th December, 1959 wherein the Government acknowledged the right of redemption of the appellant and more particularly the entry in the Revenue Record showing the appellant as owner/mortgagor and the Central Government as mortgagee, dated 11th January, 1969, constituted acknowledgments in writing before the expiration of the period of limitation, under section 19 of the Limitation Act, with the result that a fresh period of limitation accrued in favour of the appellant." In another case of Mst. Zarmewa and others v. Khial Bat Khan reported in 1992 SCMR 1804, the august Supreme Court about acknowledgment observed as under:‑‑ "However, it is further commented that it is not correct to assume that in all cases of the period of 60 years having matured the mortgagees would automatically become owners. Besides this being an unequitable and unjust approach to the entire controversy to say the least, the owner in this line of argument is not even conceded a right of hearing. Therefore, on the one hand it would be just and proper that some certification of maturity of title is obtained by the mortgagees, it is also necessary to visualise that many cases which the mortgagors themselves filed, would succeed. In this behalf learned counsel for the respondents cited more than couple of instances in which notwithstanding maturity of time and so‑called assumptive title the mortgagor would definitely succeeded in getting back the property by formal redemption on basis of acknowledgments or on other technical grounds. One obvious is the example of ex parte decree not being set aside till the end on account of some serious folly of the defendant/mortgagee." In case of Maqbool Ahmad v. Hakoomat‑e‑Pakistan reported in 1991 SCMR 2063, Shariat Appellate Bench of Supreme Court of Pakistan has declared section 28 of the Limitation Act to be repugnant to the injunction of Islam. The relevant portion of the judgment is reproduced as under:‑‑

"For reasons recorded in two separate judgments, the Court is unanimous in holding that section 28 of the Limitation Act, 1908 (Act No.IX of 1908) is repugnant to the Injunctions of Islam in so far as it provides for extinguishment of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said property. It is further held that this decision shall take effect from 31st of August, 1991 and on this date section 28 aforesaid shall also cease to have effect." In case reported in PLD 1991 SC 225, leave to appeal was granted by the August Supreme Court of Pakistan to consider the contentions "that burden of proof remaining always on the plaintiffs in such a case, the expiry of period of 60 years from the time of repayment had not been established; that having now been held that section 28, Limitation Act, 1908, was repugnant to the Injunction of Islam there was no reason why the limitation regarding the law of mortgagees should be kept intact notwithstanding the fact that the same was also against the Injunction of Islam and that if the law which was repugnant to the Injunction of Islam could not be considered as ineffective unless so declared and held by the competent forum, and would continue to operate till the needful was done in that behalf, case having been launched by the side who under the Islamic principles were in the wrong and were making immoral claim, they should have been denied the relief claimed under section 42 of the Specific Relief Act, 1877 as in the said provision the discretion allowed to the Court had not only been visualised in the use of word "may" but in addition in order to emphasize the element of discretion and its importance in section 42 of the Specific Relief Act, 1877 the expression "in its discretion" has also been used and if in any case like the present one when the grant of relief to the plaintiffs side would be clearly in the negation of the Injunction of Islam, on account of repugnancy, there would be no other case better qualified for denial of the relief in the discretion of the, Court under section 42, Specific Relief Act, 1877". Since section 28 of the Limitation Act has been declared to be un‑Islamic and according to the ruling 1991 SCMR 2063, said section stand ceased to have effect from 31st August, 1991, hence, the contention of the petitioner regarding limitation has no weight. In view of the law laid down in the aforesaid judgments, the Appellate Court in the impugned judgment has rightly held that period of limitation would be reckoned from 27‑9‑1934 and not from the date of the original mortgage. Since the impugned judgment and decree is based on the correct appreciation of evidence on the record and the law on the subject, therefore, no exception thereto is taken. Consequently this revision petition is dismissed, with no order as to costs. Q.M.H./M.A.K.//197/P Revision petition dismissed.