1988 PLP 519 (SCMR)

WAHEEDUDDIN AHMAD, J.--The dispute between the parties is in respect of Khasra No.190, measuring 2 Kanals 3 Marlas, in village Turlandi, Tehsil Swabi, District Mardan. This land was mortgaged by the predecessor-in-interest of the respondents with the predecessor-in-interest of the petitioners in 1870. On 23rd June, 1896, another mortgage deed was executed between the parties for Rs.99/-, On the 27th June, 1898, a Farzi redemption was entered at No.22. The respondents who are the descendants of the original mortgagors applied for extinction of the mortgage under the N.-W.F.P. Restitution of Mortgaged Land Act, 1950. Their application was dismissed by the Collector. They challenged that order in appeal, which was accepted by the Additional Commissioner, Peshawar Division, and an order extinguishing the mortgage was made in their favour on the 4th July, 1957. The petitioners filed suit for declaration to the effect that they had become the owner of mortgaged land because the period of limitation prescribed by Article 148 of the Limitation Act for redeeming the mortgage had expired. They further prayed for declaration that the order of the learned Additional Commissioner, Peshawar Division, by which he extinguished the mortgage was not binding on them. The suit was resisted and the trial Court dismissed the suit on 24th July, 1961. The petitioners then filed an appeal which was accepted by the Additional District Judge, Peshawar, on the 14th January, 1963. The respondents challenged this order in Civil Revision No.211 of 1963, in the High Court of West Pakistan, Peshawar Bench and the appeal of the respondents was accepted by the learned Chief Justice of the High Court by judgment dated the 24th November, 1969, on the ground that the jurisdiction of the Civil Court is barred by virtue of section 11 of the N.-W.F.P. Restitution of Mortgaged Lands Act, 1950 to further question the order of the Additional Commissioner, Peshawar Division. This judgment is being challenged in this petition for special leave to appeal. Mr. Zahoorul Haq, learned counsel for the petitioners, has contended that the Act of 1950 in applicable to subsisting mortgage as mentioned in section 2 of the said Act. The mortgage which was created somewhere prior to the year 1870, was not a subsisting mortgage after 60 years of its non-redemption under Article 148 of the Limitation Act. He, therefore, contended that in the circumstances of the case, the order of the learned Additional Commissioner, Peshawar. Division, for extinguishing the mortgage under the N.-W.F.P. Act XXXII of 1950, was against the law and without jurisdiction and it could be set aside by the Civil Court. According to the learned counsel this aspect of the case had escaped notice of the High Court. The question raised by the learned counsel requires consideration. Leave is, therefore, granted to consider the following two questions:- (i) Whether the Civil Court had jurisdiction to try the suit? (ii) Whether there was novation of contract by virtue of the redemption of the first mortgage and the creation of second mortgage? Security in the sum of Rs.1,000/-. S.Q./H-29/S Leave granted.