Zulfiqar Khan & others Vs Fazal Ghafoor & others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department) C.R No. 678-P of 2017.

Zulfiqar Khan & others Vs. Fazal Ghafoor & others Mr. Adnan Aman, Advocate, for petitioners.

Present: Mr. Mukhtar Ahmad Maneri, Advocate, for respondents.

Date of hearing: 20.04.2026

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.- This judgment shall also govern the disposal of Civil Revision No. 08-P of 2018 titled “Fazal Ghafoor and others versus Zulfiqar and others”, as both the revisions arise out of the same lis, i.e., Civil Suit No. 253/1 of 2009, decided by the learned Civil Judge-I, Swabi, on 30.11.2010, and involve common questions of fact and law.

2.The petitioners, being legal heirs of late Shamsher Khan, instituted a suit for declaration, possession, in alternate redemption of mortgage and permanent injunction in respect of Khasra No. 2944 measuring 04 Kanals and 01 Marla situated in Revenue Estate Kalu Khan, Tehsil and District Swabi. It was alleged that the suit property stood redeemed and restored through Mutation No. 10731 dated 25.02.1970 and that the entries in the revenue record depicting the respondents as mortgagees were erroneous, illegal and liable to correction. The case set up by the petitioners was that the mortgage had already been redeemed and restitution thereof had been recognized during consolidation proceedings. They asserted that defendants No.13 to 16 were merely tenants under the petitioners but, taking advantage of incorrect revenue entries, had refused to acknowledge the petitioners' ownership. Upon notice, the respondents entered appearance and contested the suit. They raised various legal and factual objections, principally contending that they and their predecessors had remained in possession of the land for over a century; that the mortgage had become time-

barred; that by efflux of time they had acquired ownership rights; and that Mutation No. 10731 was collusive and had already been annulled through a civil decree, pursuant thereto Correction Mutation No. 11656 had been sanctioned. They further maintained that they had continuously cultivated the land without rendering any produce or rent to the petitioners and, therefore, the suit was frivolous and not maintainable.

3.The parties led evidence in support of their respective claims. Upon conclusion of the trial, the learned Civil Judge-I, Swabi, vide judgment and decree dated 30.11.2010, dismissed the suit. Feeling aggrieved, the petitioners preferred an appeal, which was partly allowed by the learned appellate Court. The appellate Court granted redemption and restitution in respect of a portion of the mortgaged property but declined relief regarding the land covered by Correction Mutation No. 11656. Dissatisfied with the partial refusal of relief, the petitioners instituted the present revision petition, whereas the respondents, aggrieved by the decree passed against them, filed the connected revision petition.

4.I have heard the learned counsel for the parties at considerable length and have meticulously examined the entire record.

5.The foundational facts are largely undisputed. Originally, the property belonged to one Gul Sher son of Litaaf. It is also admitted that Gul Sher and the mother of Shamsher Khan were brother and sister. Shamsher Khan was the predecessor-in-interest of the present petitioners. The record further reveals that Mutation No. 6385 dated 06.08.1954 was sanctioned in favour of the predecessors of the respondents. Significantly, the said transfer was affected as Bai-b-Hifz-e- Rahn (( )بيع بحفظ رهنsale with preservation of mortgage rights). Subsequently, the transaction was pre-empted by Shamsher Khan through Civil Suit No. 323/1, culminating in a decree in his favour. Consequently, Mutation No. 7287 dated 13.09.1955

(Ex.PW-4/1) was sanctioned on the strength of the pre-emption decree. Even thereafter, the right of mortgage remained protected and preserved. The Jamabandi for the year 1959-60 records Shamsher Khan as owner and mortgagor, while the respondents continued to be reflected as mortgagees in possession. Thus, the documentary evidence unmistakably establishes the proprietary title of the petitioners' predecessor and the status of the respondents as mortgagees.

6.The controversy essentially revolves around two questions:

(i)Whether the suit for redemption and recovery of possession was barred by limitation?

(ii)Whether the respondents, by virtue of long possession, had acquired ownership rights in the suit property?

Insofar as the plea of limitation, the respondents vehemently argued that they had remained in possession for several decades and, therefore, the right of redemption stood extinguished. The contention is misconceived. The respondents themselves consistently asserted that they were in possession as mortgagees. Their status in the revenue record, as well as their own pleadings, unequivocally establish that they entered into possession by virtue of mortgage and continued to enjoy the usufruct of the land. A mortgage whereby possession of the property is delivered to the mortgagee and the latter appropriates the produce and profits thereof in lieu of interest or towards satisfaction of the mortgage debt is, in essence, a usufructuary mortgage. In such a mortgage, the mortgagee remains in possession and continuously receives usufruct from the mortgaged property. The august Supreme Court of Pakistan in Abdul Haq v. Ali Akbar and others (1999 SCMR 2531) authoritatively held that receipt of usufruct, rent or produce from mortgaged land constitutes an acknowledgment of liability within the contemplation of Section 20(2) of the Limitation Act, 1908, thereby furnishing a recurring cause of action and continuously

extending the right of redemption. The legal position is, therefore, firmly settled that so long as the mortgagee remains in possession and enjoys the usufruct of the property, the mortgagor's right of redemption subsists and limitation does not operate to extinguish such right. Even otherwise, Article 148 of the Limitation Act, 1908, prescribing sixty years for redemption of a mortgage, was never intended to defeat the equitable right of redemption in cases of usufructuary mortgages. The jurisprudence developed by the superior Courts consistently recognizes that in such mortgages the right to redeem remains alive until redemption is actually affected. Accordingly, the plea that the suit was barred by limitation is devoid of legal substance and is hereby repelled.

7.Equally untenable is the respondents' claim of ownership on the basis of long possession. Prior to the authoritative pronouncement of the august Supreme Court in Maqbool Ahmad v. Government of Pakistan (1991 SCMR 2063), Section 28 of the Limitation Act was often invoked to contend that the owner's title stood extinguished upon expiry of the prescribed period for recovery of possession. However, Section 28 was declared repugnant to the Injunctions of Islam and ceased to hold the field. The inevitable consequence of the said declaration is that mere lapse of time cannot extinguish a lawful owner's title, nor can possession alone mature into ownership against the true owner in the absence of a valid legal transfer. This Court in Bilawar Khan v. Amir Sabar Rahman (PLD 2013 Peshawar 38) aptly observed that a mortgagee who has already enjoyed the usufruct of the property for decades cannot be rewarded twice—first by appropriating the produce of the land and thereafter by being conferred ownership thereof. Such an interpretation would amount to reintroducing, through judicial construction, the very consequences that stood eliminated after the declaration of repugnancy of Section 28 of the Limitation Act.

8.Moreover, the same principle was reiterated by this Court in Sher Nawaz Khan and others v. Muhammad Zaman and others (Civil Revision No. 16-P of 2011), wherein it was held that no limitation runs against redemption of a usufructuary mortgage and a mortgagee cannot acquire ownership merely on account of prolonged possession. The principle enunciated by this court reads as under:

“The only contention of the respondents was the provision of Article 148 of Limitation Act which was in field at the time of decision of the suit and now article 148 of Limitation Act 1908 has been deleted through amendment in The Khyber Pakhtunkhwa Limitation (Amendment) Act, 2016. (Khyber Pakhtunkhwa Act No. xv of 2016) with effect from 19.08.2016 however, in view of the referred to above cases, the courts have consistently held that in case of a usufructuary mortgage, no such limitation would run. The plaintiffs are the owners, and their status of ownership could not be denied by learned counsel for respondents. The status of the defendants/ respondents is that of mortgagee in the property, thus, the time from which they have alleged themselves to be the owners is in conflict with the interest of the plaintiffs, as such suit under section 42 of Specific Relief Act was competent in all respect and in view of the provision of Article 147 of Limitation Act r/w section 20(2) of Limitation Act, 1908 suit of the plaintiffs could not be held to be barred by law.”.

Consequently, the respondents' plea of ownership is legally unsustainable and cannot be accepted.

9.The evidence on record unequivocally establishes that the ownership of the petitioners and their predecessor-in-interest was never effectively disputed. The respondents derived their possession solely through the mortgage transaction and continued to remain in possession in that capacity. Although Mutation No. 10731 was subsequently cancelled and ()صحت انتقال Correction Mutation No. 11656 was sanctioned, the learned appellate Court failed to appreciate that the correction mutation did not obliterate the foundational character of the transaction as

a mortgage. The Jamabandi of 1936-37, the sale mutation bearing No. 6385, the pre-emption decree resulting in Mutation No. 7287, and the subsequent revenue entries collectively demonstrate that throughout the chain of title the mortgage rights were preserved and recognized. The respondents remained mortgagees in possession and never acquired an independent source of title. Therefore, once the relationship of mortgagor and mortgagee stood established, redemption necessarily had to operate in respect of the entire mortgaged property measuring 04 Kanals and 01 Marla and not merely a fragmented portion thereof.

10.The learned Courts below, while addressing the effect of the correction mutation and the plea of limitation, failed to evaluate the evidence in its true legal perspective. Material documentary evidence was either overlooked or not accorded its due evidentiary value. The conclusions reached by the Courts below are thus the result of misreading and non-reading of evidence coupled with erroneous application of settled principles of law. It is by now well settled that although concurrent findings of fact ordinarily deserve respect, such findings do not enjoy immunity from interference where they are shown to be the product of misreading of evidence, non-reading of material record, arbitrariness, or misapplication of law. Reference in this regard may profitably be made to Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24) and Noor Muhammad Khan and others v. Mst. Azmat Bibi (2012 SCMR 1373), wherein the august Supreme Court held that revisional jurisdiction can validly be exercised to correct findings suffering from patent legal infirmity or jurisdictional error.

11.For the foregoing reasons, this revision petition merits acceptance. Consequently, the judgments and decrees passed by the learned Courts below, to the extent of dismissal of the plaintiffs’ suit for redemption and restitution of the entire mortgaged property, is hereby set aside. The suit instituted by

the petitioners is decreed in its entirety. The petitioners are declared entitled to redemption of the whole mortgaged property measuring 04 Kanals and 01 Marla and to recovery of possession thereof from the respondents. The respondents are restrained from asserting any ownership rights adverse to the petitioners in respect of the suit property. As a necessary corollary, Civil Revision No. 08-P of 2018 filed by the respondents is found devoid of merit and is accordingly dismissed. No order as to costs.

Announced on 20.04.2026.

Released on 17.06.2026.

JUDGE

Asif Jan Sr.S.S. (SB) Hon’ble Mr. Justice Muhammad Naeem Anwar.