1990 PLP 1990 (CLC)

Precisely, the disputed land measuring 128 Kanals and 17 Marlas situated in village Jhujanwali, Tehsil Kot Adu was originally mortgaged by Qabool son of Gamoo predecessor‑in‑interest of the petitioners vide Mutation Nos. 196 (5‑7‑1895), 107 (16‑3‑1894), 185 (18‑2‑1895) and Nazar Muhammad son of Gamoo vide Mutation Nos. 187 (25‑2‑1895), 208 (22‑7‑1895), 185 (18‑2‑1895) in favour of Watto Ram, Hisa Ram and Jawani Mall for Rs.

56. The mortgagees on the eve of Independence in 1947 migrated to India. These rights were allotted in 1966 to Maqsood and Ghulam Mahmood, displaced persons, in lieu of their claims. The said allottees sold their mortgagee rights to respondents No. 3 and

4. Subsequently respondent No. 4 gifted his mortgagee rights to his sons respondents No. 1 and

2. The petitioners/mortgagors filed an application for redemption of the said land on 21‑4‑1986. The Collector on 25‑6‑1988 rejected the application on the ground that it was barred by time. The Additional Commissioner, in appeal, also maintained the said order, hence this revision petition.

2. I have heard the parties. Learned counsel for the petitioners took the plea that:‑‑ (a) On the migration of non‑Muslim mortgagees to India, the limitation for redemption of mortgage stopped running under Evacuee laws. (b) Limitation also stopped running in 1947 under section 13 of Limitation Act. (c) the right of mortgagors to redeem was recognised by Central Government which had stepped into the shoes of evacuee mortgagees vide instructions dated 8‑12‑1959. This constitutes acknowledgment under section 19 of Limitation Act and fresh period of Limitation for 60 years becomes available.

3. Learned counsel for the respondents has supported the impugned orders on the grounds that:‑‑ (i) the land in dispute was mortgaged in the year 1895. The time for its redemption was upto 1955. Evacuee Laws were introduced in 1957 but by that time the prescribed period had already expired in 1955. As such there is no question of acknowledgment. (ii) The case referred to by the learned counsel for the petitioners PLD 1986 SC 35 is distinguishable from the instant case. In the quoted case land was mortgaged, in 1916 and the time for its redemption was upto 1976 but during the currency of the prescribed period the Evacuee Laws of 1957 came into operation whereas in the instant case the position is altogether different as here the land was mortgaged in 1895 and the period of 60 years had expired before the introduction of Act XII of 1957. (iii) The Courts below have rightly given marginal period of 7 years to the petitioners which was upto 1963, while the application was preferred in 1986, thus it was barred by time.

4. I have considered the arguments adduced by the parties and have also examined the record. The only question for determination is whether, the application for redemption of the mortgage was barred by time and properly dismissed on that score by the Courts below.

5. The mortgage was created in 1895 and 60 years stipulated period expired in 1955. Since the Administration of Evacuee Property Ad (XII of 1957) came into operation in 1957, therefore, it seems to be admitted position that acknowledgment was not within the prescribed period of 60 years. The view that time had stopped running in 1947 and as such that concession is available even now, does not seem to be correct, While interpreting Administration of Evacuee Property Act (XII of 1957) it was held in P L D 1971 Lah. 77 that "Legislature through its wisdom chose to freeze the respective rights of the parties as they existed on a certain specified day, namely the 1st day of March, 1947". It was so because provisions of Evacuee laws were available then. But now after their repeal this concession is no more in existence. Previous position was that notwithstanding anything to the contrary in any other law the provisions of section j. 5 of Act XII of 1957 had to prevail. Perhaps it may be convenient to appreciate the proposition if the relevant para. 18 of the above‑said citation is reproduced:‑‑ "The cumulative effect of the provisions mentioned in the preceding paragraph is that from the first day of March, 1947 the interest of the evacuee owner vested in the Custodian by operation of law, and evacuee property so vested became immune from all legal process of any kind. Anyone holding the property or being in its possession was to be deemed to be doing so on behalf of the Custodian of Evacuee property. At this stage we might take note of section 4 of the Ordinance (corresponding to section 5 of the Act) which lays down that "the provisions of this Ordinance, and any rule or order made therunder, shall have` effect notwithstanding anything inconsistent herewith contained in .any other law for the time being in force, or in any instrument having effect by virtue of such law". It will be seen that the obvious intention of this sweeping provision is that once the property has vested in the Custodian of Evacuee Property then it shall not be taken away from him or his control by the operation of any other law for the time being in force. And this would include section 28 of the Limitation‑Act as well which contemplates extinguishment of the right to property at the determination of the period of limitation." But now after the repeal of the Evacuee Laws clock has reverted to the time before 1st of March, 1947 and hence now the ordinary law will apply i.e., the law applicable at the relevant time (if section 5 of Act XII of 1957 was not there). In the instant case, under section 5 of the said Act time had stopped w.e.f. 1st March, 1947 till the introduction of section 5 i.e., 1957, when Custodian had stepped into the shoes of the non‑Muslim evacuees. After the repeal of this provision, position has reverted to 1st March, 1947, and now at this stage ordinary law will apply. In 1947 the mortgage was about 52 years old and at the most remaining period of 7 years could be claimed and that too expired in 1955 i.e. before 1957 the time when acknowledgment was made by the Central l Government.

6. Furthermore, section 13 of Limitation Act provides the scale of computing the period of liggitation only in filing an application or suit in those cases where the defendant has been absent from Pakistan and from the territories beyond Pakistan under the Administration of the Federal Government. So even under this provision of law, the exclusion of the period from 1947 to 1957 i.e., 10 B years could be considered, had the application or suit for redemption been filed within time i.e. by 1965, ten years till after 1955. But here the application was filed in 1986 which was obviously barred by time. So even this relaxation is of no help to the petitioner. As such the Courts below have rightly held the case to be barred by time.

7. Under these circumstances I am not inclined, to interfere with the concurrent findings of the Courts below. The revision petition is, therefore, dismissed. AA./359/R Petition dismissed.