Prescription

2019 PLD 171 PESHAWAR-HIGH-COURT Judicial Precedent

S. 60Limitation Act (IX of 1908), Ss. 20 (2) & 28 & Arts. 144, 147 & 148Civil Procedure Code (V of 1908), O. I, R. 9Suit for redemption of mortgaged propertyLimitationPrescriptionNon-impleadment of co-sharers of suit propertyUsufructuary mortgageEffectContention of plaintiff was that he was owner in possession of suit propertySuit was dismissed for being time barred and on account of non-joinder of co-sharers of suit propertyValidityDefendants had never instituted any suit for purchase of suit property within the prescribed period of limitation

If any mortgagee failed to get decree in his favour before the target date then no decree for prescription could be passed in his favour and no suit could be filed after the target date

Defendants had not succeeded in getting decree on the basis of prescription before the target date

Defendants could not be allowed to claim ownership of the suit property on the ground that plaintiff had not redeemed the suit property within the prescribed period of sixty years

Receipt of rent or usufruct of mortgage land by mortgagee in possession was to be deemed to be acknowledgement of payment of debt

Receipt of produce on every harvest would be deemed as an acknowledgement giving fresh start to period of limitation

Limitation for filing a suit for redemption of mortgage property would start from the date of such acknowledgement

Provisions contained in S.28 of Limitation Act, 1908 had been declared to be repugnant to the Injunction of Islam

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

No suit could be defeated due to non-impleadment of other co-sharers of suit property

Mortgagee would step into shoes of his mortgagor

Defendants were usufructuary mortgagee

Plaintiff on redemption of suit property would relegate to his previous position as his ancestral were in the said property

No other co-sharers would be affected by redemption of suit property

Co-sharers of suit property could not be treated either necessary or proper party in the present case

Impugned judgments and decrees passed by the Courts below were set aside

Suit was decreed subject to payment of mortgage amount

Revision was allowed, in circumstances.

2016 CLC 928 PESHAWAR-HIGH-COURT Judicial Precedent

S. 20(2) & Art. 148Transfer of Property Act (IV of 1882), S.60Suit for redemption of mortgageLimitationPrescriptionReceiving usufruct from the mortgage propertyEffectSuit for redemption of mortgage was dismissed on the ground of limitationValidity

Right of plaintiffs-mortgagors to redeem suit property after expiry of 60 years would not extinguish unless court of law had passed decree in favour of defendants-mortgagees

Suit for redemption of mortgage could be decreed after expiry of prescribed period of limitation as provided in Art. 148 of Limitation Act, 1908

Receipt of usufruct would give a fresh period of limitation to the mortgagor

Suit filed by the plaintiffs-mortgagors was within time

Impugned judgments and decrees passed by both the courts below were set aside

Suit filed by the plaintiffs was decreed preliminary

Plaintiffs should deposit mortgage money within specified period in the Trial Court

Revision was allowed accordingly.

2014 MLD 212 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 60 & 61Limitation Act (IX of 1908), Arts. 148 & 114, Ss. 20 & 28Suit for possession through redemptionLimitationPrescriptionScopeContention of defendants was that they were owners in the suit land to the extent of their sharesSuit was dismissed concurrentlyValiditySuit land was under the possession of various owners and mortgageesPeriod of limitation with regard to redemption of suit property would be reckoned from the first deed of mortgageSuit of plaintiffs was within timeDefendants were usufructuary mortgagees of disputed land and they could not be accepted as owners of the sameDefendants never succeeded in decree for foreclosure or sale before the target date i.e. 31-8-1991

No decree could be passed after 31-08-1991 in favour of any person who claimed to have acquired the right of ownership through prescription or implication of law

When mortgagee was in possession of mortgage property and he received the usufruct then same should be deemed to be a payment of the mortgage money

Fresh period of limitation to be computed from the time when such payment was made

Period of limitation should be reckoned from the last transfer of right of mortgagee and not from the first creation of the usufructuary mortgage

New acquisition of right in the mortgaged property was an acknowledgement of liability with regard to the mortgaged property

Defendants had purchased rights of previous mortgagee and plaintiffs could not claim more than what had come in the possession of defendants

Impugned judgments of both the courts below were set aside and suit of plaintiffs was decreed.