1975 PLP 253 (SCMR)

‑ Riwaj‑e‑Am of Malakand Agency‑Places complete bat on mortgage of land for more than four years‑Mortgage for more than 20 years, held, rightly adjudged to be redeemable on payment of certain amount of money, adjudged by jirga. M. Qasim Imam, Advocate‑on‑Record for Petitioner Nemo for Respondents. Date of hearing : 27th January 1975. MUHAMMAD AFZAL CHEEMA, J.‑The petitioner feels aggrieved by the order of a D. B. of the Peshawar High Court, dated 7‑2‑1974, whereby Writ Petition No. 195 of 1973 filed by him against the order of the Commis sioner, F. C. R., Malaekand Division, dated 13‑8‑1913 was dismissed in limine.

2. Muhammad respondent No. 2 mortgaged a piece of land in village Gandi Gar, Dir District with Sultan Yousaf petitioner herein for a period of 20 years. A few years later, the wife of Muhammad brought a suit for the redemption of the land in the Court of the A. D. M., Malakand. The matter was referred to a Jirga but the parties compromised, the petitioner paid an additional amount of Rs. 1,500 to respondent Muhammad and the period of 20 years was further extended till 13‑2‑1987. The suit was disposed of in terms of the compromise by the A. D. M., Malakand. Subsequently, however, Muhammad respondent No. 2 sold the same land to Haji Sher Afzal Khan respondent No, 1 who moved the Court of the A. D. M. for redemption of the same. With the consent of the parties, the matter was again referred to a Jirga which recommended that the land may be redeemed by respondent No. 1 on payment of Rs. 3,500 to the petitioner in addition to the cost of the building raised by him. The suit was decreed by the A. D. M., Malakandr who accepted the recommendation of the Council‑of Elders, Having unsuccessfully failed in revision before the Commissioner, F. C. R., Malakand and in writ ,jurisdiction before the High Court, the petitioner has moved the present petition for leave to appeal.

3. Learned counsel could not satisfy us that the fresh arrangement between tie petitioner and respondent No. 2 imposed a complete prohibition on the redemption of the land before 13‑2‑1987. In fact he could not even challenge on the legal plane the view taken by the High Court on the base of the Riwaj‑e‑Aaw obtaining in the locality that there was complete prohibition on the mortgage of a piece of land for more than four years. The mortgage in question being for more than 20 years was obviously hit by the Riwaj. In the circumstances, therefore, no fault can be found with the High Court's order which rightly held that the orders passed by the A. D. M., Malakand, were passed in proper exercise of the jurisdiction vesting in him. The petition is, therefore, dismissed. Petition dismissed.