P L D 2019 Peshawar 171 (PLP)

IKRAMULLAH KHAN, J.

Through the instant Civil Revision petition, petitioner has challenged the impugned Judgment dated 08.11.2007, rendered by the learned Additional District Judge, Swabi, whereby, appeal, filed by the petitioner against the Judgment dated 30.07.2004 of the learned Civil Judge, Swabi, was dismissed.

2. Briefly stated facts of the case as per petition in hand are that petitioner filed a suit regarding declaration to the effect that he is owner in possession of property measuring 114- Kanal 01-Marla, situated at Batakera, Tehsil and District, Swabi, which was contested by the respondents by filing their written statement. The learned Trial Court after conclusion of trial, dismissed the suit of the petitioner vide Judgment dated 30.07.2004. Feeling aggrieved by the said Judgment dated 30.07.2004, two appeals were separately preferred, one by Farid Khan and the other by Mst. Shaista Naz etc, before the Appellate Court but the learned Appellate Court below vide its consolidated Judgment dated 08.11.2007 dismissed both the appeals. Hence, the instant Civil Revision petition.

3. Learned counsel for petitioners contended that the impugned judgment is against law and evidence on record; that the learned Courts below have fallen in error of misreading and non-reading of evidence as well as the law which has occasioned gross miscarriage of justice.

4. On the other hand, learned counsel for respondents argued that on account of time barred, mortgage and plaint, in term of Article 147 of the Limitation Act, 1908 the title of respondents had matured and have become owners, therefore, the findings of learned Courts below which are based on proper appreciation of law, cannot be interfered with by this Court in exercise of its revisional jurisdiction.

5. I have heard learned counsel for the parties and have gone through the record.

6. Although petitioners had instituted a suit for declaration to the effect that the entries in record of rights to the extent of mortgage of the property in hand of respondents were illegal, as the petitioner had already redeemed the suit property but in alternative petitioner had prayed for decree of redemption of the suit property on payment of Rs.1000/-.

7. As the first claim, that the suit property had been redeemed by the petitioners at some occasion before the institution of the suit is not proved, however, in light of statement of Revenue officials and perusal of the Revenue papers, placed on record, this fact could not be denied that the suit property had been mortgaged by predecessor-in-interest of petitioner in the year 1870 at the hand of predecessor-in-interest of respondents. Respondents had not claimed to be owner by purchase of the property, therefrom the predecessor-in-interest of petitioner, however, had claimed to be co-sharer in the joint khata, on account of purchase of shares of other co-sharers but had not put forwarded any claim of ownership over the suit property on basis of any sale deed except that, they are in continuous possession of the land on account of mortgage of the property, for more than 100 years.

8. The learned Appellate Court has dismissed the suit of petitioner on the grounds of limitation, non -joinder and on account of res judicata.

9. According to the learned Appellate Court, prior to the institution of the present suit, petitioner had institution another suit on the same title against the same respondents in regard to the same suit property bearing No.360/1 which had been dismissed by learned Trial Court on 26.02.1992.

10. The appeal against the said impugned Judgment had also been dismissed by learned Appellate Court on 01.11.2000 and the Civil Revision by this Court had also been dismissed.

11. But astonishingly, the learned Trial Court had neither framed any issue in regard to question of res judicata nor such plea had alleged by respondents in their pleadings.

12. No any copy of the suit filed by the petitioner prior to the one in hand, had ever exhibited by learned Trial Court nor by the learned Appellate Court, while I failed to locate such documents on the original record of the case.

13. Therefore, the findings of learned Appellate Court in this regard could not sustain being beyond the pleadings of parties and evidence on record.

14. Insofar as the question of limitation for redemption of mortgaged property is concerned, no doubt, in term of Article 148 of the Limitation Act, 1908, 60 years has been prescribed for the purpose, but at the same time the provisions contained in Article 147 of the Act ibid could not be ignored, which reads as:- By a mortgagee for foreclosure or sale Sixty year When the money secured by mortgage becomes due

15. The record reveals that respondents had never instituted any suit for purchase or sale of the suit property within the prescribed period of limitation as well as by the petitioner to redeem the suit mortgage property, while in the meanwhile, the Federal Shariat Court and Appellate Shariat Court of the Supreme Court of Pakistan rendered the landmark Judgment in case titled "Maqbool Ahmad v. Government of Pakistan" (1991 SCMR 2063), whereby it is held that no decree can be passed on the ground of adverse possession after 31.08.1991 and as a result of section 28 of the Limitation Act as well as Article 144 of the same Act both were declared to be repugnant to injunction of Islam and both the above provisions of law, are no more part and parcel of the statute book of Limitation Act, 1908

16. If any mortgagee failed to get decree in his favour before the target date no decree of prescription can be passed in his favour and no suit can be filed after the said target date. Reliance be placed on the Judgment of the apex Court, rendered in case titled "Durranai and 35 others v. Hamidullah Khan and 15 others" (2007 SCMR 480).

17. However, respondents as stated hereinabove, had not succeeded in getting decree on basis of prescription before the target date, so they could not be allowed to claim ownership of the suit property on the ground that as petitioner had not redeemed the suit property within the prescribed period of 60 years as such they had automatically or by dent of Section 28 of the Limitation Act had become full owners.

18. The other legal aspect of this case is that the mortgage in question is admittedly usufructuary mortgage, so the provisions of section 20 (2) of the Limitation Act is fully applicable to the case in hand. According to section 20(2) of the Limitation Act, receipt of rent or usufruct of mortgage land by mortgagee in possession would be deemed to be acknowledgment of payment of debt. Thus, time would be deemed to be from date of such acknowledgment. Receipt of produce on every harvest would be deemed as an acknowledgment giving fresh start to period of limitation.

19. The provisions contained in section 28 of the Limitation Act, 1908 had been declared to be repugnant to injunction of Islam, while the logic behind such declaration was that no lawful owner could be deprived of his right merely by efflux of time nor a person enjoying possession for a long time could be awarded with premium of ownership. The provisions contained in section 20 of the Limitation Act, 1908 reads as:- "

20. Effect of payment on account of debt or of interest on Legacy.-- (1) Where payment on account of debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, or by his duly authorized agent, a fresh period of limitation shall be computed from the time when the payment was made. Effect of receipt of produce of mortgaged land. (2) Where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of subsection (1)".

20. Reliance in this regard shall be placed on judgment of this court rendered in case titled "Gul Badan and 19 others v. Rasheed-ur-Rehman and others" (2016 MLD 1319) and case titled "Bilawar Khan v. Amir Sabar Rahman and others" (PLD 2013 Peshawar 38).

21. Insofar as non-impleadment of others co-sharers were concerned, no suit could be defeated on this score alone in view of the provisions, contained in Order I, Rule 9, C.P.C. while the instant case is not for partition of Village Shamilat or possession therefrom other co-sharers. It is settled principle of law that mortgagee steps into shoes of his mortgager. As respondents were usufructuary mortgagee, therefore, on to redeem the suit property, petitioner would relegate to his previous position as their ancestral were in the suit property and no other co-sharer would be effected by to redeem the suit property, therefore, other co-sharers could not be treated in the present facts and circumstances of the case to be either necessary or proper party.

22. In view of the above mentioned reasons, I safely hold that the findings of learned Courts below are not sustainable, who had not only misread and non-read the law but also the evidence.

23. Therefore, this Civil Revision petition is accepted and allowed. The impugned Judgments of the learned Courts below are set aside and the plaint of the petitioner is decreed to the extent of alternative relief they asked for subject to payment of Rs.1000/- which shall be deposited with the learned Executing Court, prior to filing of the execution petition but not later than three months of getting attested copy of this Judgment. AG/148/P Revision allowed.