Taj Muhammad etc Vs Lal Khanan etc

Judgment Sheet

PESHAWARHIGII C URT. BAI\IIU BENCII

t (Judicial Department)

CRNo.49-B of 2016

Taj Muhammad etc Vs Lal Khanan etc

IUDGMENT

For Petitioners: Abdul Jabbar Kh an Khattak Advocate For Respondents : lWsHaiiUm erDaraz Khan and Masood Iqbal Khattak Advocates

For Resp ondents: Mr. Gul Nawa b Khan Advocate Date ofhearing: 26.06.2023

Dr. Khurshid labol. J.-

1.Lal Khanan and 33 others (hereinafter referred to as the respondents) instituted a suit for possession through redemption of the suit property against Taj Muhammad and 15 others (hereinafter referred to as the petitioners). Their contention was that the property had been the ownership oftheir predecessor- in-interest. He mortgaged it in favour of the predecessor-in- interest ofthe petitioners in the year 1887. Since then, several mortgage mutations were entered into and attested in respect of the property. In the revenue record, the respondents are still recorded as owners-mortgagors, while the petitioners as owners-mortgagees. The respondents, therefore, sought for the redemption of the property through a decree of the Court'

2.Contrarily, the petitioners contended that the property is their ancestral estate. They are in its possession on the basis of private partition since long. Regarding the status ofthe property to be mortgaged one in view of the revenue record, it was contended that they were previously not in knowledge of this fact. It is worth noting that the defendants No.4 and 9 to 1l submitted cognovits and thereby admitted the claim of the respondents. The remaining defendants failed to appear in response to the summonses. They were placed and proceeded against expa"rte.

3.The divergent pleadings of the parties gave rise to framing of issues. After recording evidence and hearing the rival submissions advanced at the bar, the leamed trial court decreed the suit against the petitioners vide judgment and decree, dated 07.07.2015. They assailed it before the Additional District Judge at Takht-e-Nasrati, District Karak, but stood confirmed pursuant to dismissal of their appeal vide judgment and decree, dated27.0l.20l6. Hence, the revision petition.

4.I have anxiously considered the submissions addressed at the bar and perused the material on record.

5.In order to substantiate their claim, the respondents examined Patwari Halqa as PW-01. He produced the revenue record as Exh.PWl/l to Exh.PWl/6 respectively. He affirmed that in view of Misl-e-Haqiyat for the year 1974-75, Noor Alam

is recorded as mortgagor of the property. The witness further stated that the property being mortgaged in favour of Matol Shah etc is shown as such in the revenue record for the year 1974-75. The Girdawar Circle, Tehsil Takht-e-Nasrati, was examined as PW-02. He produced the revenue record as Exh.PW2/l to Exh.PW2/3 respectively. This witress, too, affirmatively stated that the property is mortgaged one. Its status has been reflected as such in the revenue record since 1886-87. The special attorney of the respondents was examined as PW-03. He stated that their predecessor-in-interest, Noor Alam, had purchased the property, alongwith its rights of mortgage from one Sharyan. To support his contention, he referred to and relied upon mutation No.10004, dated 26.08.1933. Conversely, in order to substantiate that the property is their ancestral estate and not a mortgaged one, the petitioner No.l (defendant No.12) Taj Muhammad appeared as % DW-01. He admitted that the property was the ownership of Sharyan and others. He admitted to be in its possession since long. In reply to a question, he expressed his ability to understand the entries reflected in the revenue record. He was confronted with the record produced by the revenue officials, wherein the property is shown as mortgaged and the respondents as its mortgagors. In the first breath, he admitted the status of the respondents as mortgagors. In the second

breath, he denied it. He further admiued that the respondent Lal Khanan had instituted a civil suit No.2Oll against him in the year 2012. When asked about the outcome of that suit, he failed to reply with exactitude. He firstly stated that the suit referred to above was decreed in favour of the respondents. He, then, showed ignorance in that respect. This is in spite of the fact that he had filed appeal against the decree passed in the above said suit in favour of the respondents, but remained unsuccessful.

6.It transpires that in view of the Misl-e-Haqiyat, the property was initially owned by Shah Darab and others. They mortgaged it in the year 1886-87 on different persons, including the predecessor-in-interest of the petitioners, Matol Shah. The Jamabandi for the year 1907-08 shows Sharyan as the mortgagor and Matol Shah as the mortgagee of the property. It further transpires that the predecessor-in-interest of the respondents, Noor Alam, purchased the share in the property of the mortgagor Sharyan, alongwith its mortgage rights for Rs.l0l/-. It is, thus, overwhelmingly proved that the predecessor of the respondents was owner-mortgagor, while that of the petitioners as owner-mortgagee. The claim of the petitioners that the property was their ancestral estate and has been devolved on the basis of private partition remained unproved. It is a matter of record that the petitioner No.l Taj Muhammad had earlier instituted a suit bearing No.9/l of 1997.

His contention in that suit was that the property was the ownership of Noor Alam who transferred it in the name of defendant No.l vide mutation No.3616, dated 29.03.1991 .It is astonishing to note that he changed his stance in the case in hand. It is worth noting that the said Noor Alam had passed away in the year 1973. His legacy was devolved upon his legal heirs. To this effect, inheritance mutation No.l87 was attested on 12.09.1973. The record further shows that the petitioner No.l (defendant No.12) Taj Muhammad in collusion with the revenue offrcials managed to illegally transfer the suit property from the name of Noor Alam in favour of defendant No.l Syed Rasool vide mutation No.3616, dated,29.09.1997. Later on, he transferred it in his own nzrme vide mutation No.6416. As noted above, the said Noor Alam had already passed away in 1973 when the two mutations were attested in 1997. These were challenged by the respondents in civil suit No.20ll of 2012.

The suit was decreed in their favour on 06.02.2013. The mutations were accordingly cancelled and the property transferred back in the name of Noor Alam vide mutations No.6830 and 6828. The appeal of the petitioners against the above said judgment was also dismissed on 22.08.2013. The petitioners claimed that they were not previously in knowledge of the status of the property being mortgaged. They stated to have reserved all the rights under the law as to challenge the

validity of those entries recorded in the revenue record.

However, the record is silent regarding any action being taken under the law. Although, the respondents had claimed that the property was moftgaged by their predecessor in favour of the predecessor of the petitioners. However, on the record, it came to light that the property was not mortgaged by the former to the latter. Nonetheless, as noted above, the fact remains that the latter had purchased the property, alongwith its mortgage rights from original owner. Its status as such is very much clear from the revenue record referred to above. The respondents being mortgagors have the statutory right of redemption. Relevant in this regard is section 60 ofThe Transfer ofProperty Act, 1882.

It is reproduced hereunder for ready reference:

60.Right of mortgagor to redeem. At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgagee-money, to require the mortgage (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged propefty, to deliver possession thereof to mortgagor, and (c) at the cost of

the mortgagor either to re-transfer the mortgaged propefy to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:

Provided that the right conferred by this section has not been extinguished by the act ofthe parties or by [decree] of a Court.

The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.

Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment oftender ofsuch money.

Redemption of portion of mortgaged property. Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate

part of the amount remaining due on the mortgage, except, [only] where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.

7.The above provision of law demonstrably upholds the right of redemption in all the mortgages. The possession of a mortgagee over the mortgaged property remains so. It cannot by any sfretch of imagination be converted into ownership. The maxim 'once a mortgage, always a mortgage' is the clear manifestation of the fact that the mortgagee will always remain as a mortgagee and can never become an owner. The redemption being a statutory right, no clog can obviously be put against it. There is judicial unanimity that any clog on redemption of a mortgage will be invalid for the simple reason of its being violative of the law and equity. Reference, for example, may be made to Muhammad Jan v. Roshan Gul (2021 % CLC 68 Peshawar), Khushi Muhammad v. Muhammad Ashfas (2014 PLD 26 Lahore), and Ali Ahmad v. Aisha Warsi (2012 PLD 381 Karachi). Reliance can well be placed on Khushi Muhammad v. Muhammad Ashfaq (2014 PLD 26 Lahore).

8.So far as the contention with regard to the period of limitation is concemed, suffrce it to say that the respondents became owners by stepping into the shoes of mortgagors. The petitioners have been enjoying the mortgagees' rights. They

have admitted to be in possession of the property. The very nature of the mortgage is usufructuary and the petitioners are receiving the usufruct of the property. As held in somewhat similar circumstances by this Court in Muhammad Zaman v.

Duraz Khan (2017 CLCN 107 Peshawar), every receipt of usufruct is to be treated as payment towards mortgage amount for the purpose of limitation. In the peculiar facts and circumstances, the provisions of section 20(2) of the Limitation Act, 1908 are attracted to the case in hand. It provides that a receipt of rent or usufruct of mortgaged land by mortgagee in possession would be deemed to be acknowledgment of payment of debt. Thus, time would be deemed to be from the date of such acknowledgment. The receipt ofproduce on every harvest would be deemed as an acknowledgment, giving fresh start to the period of limitation. Reference may be made to Muhammad Zaman and others Vs Duraz Khan and others (2011 CLC % Note 107 Peshawar), wherein it was held that:

The mortgage, as per revenue record, is usufructuary in nature and the respondents are their predecessor continuously receiving usufruct of the same land, so every receipt of the usufruct is to be treated as payment towards mortgage amount for the purpose of limitation and every receipt of usufruct is

consider€d towards acknowledgment of it.

9.In addition to all this, this Court in Bi Khanv. Amir Sabar Rahman (2013 PLD 38 Peshawar) while declaring section 28 of the Act as repugnant to the injunctions of Islam, suggested to the Law, Justice, and Parliamentary Affairs Division the omission of Article 148 from the Statute.

Similarly, tn Farid Khan v. Fazla Oadir (2019 PLD l7l Peshawar), this Court while following the view taken earlier, held that no lawful owner could be deprived of his right merely by efflux of time, nor can a person enjoying possession for a long time be awarded with premium of ownership. The latest being the case of Khanzada Muhammad Ra/isue Khan v.

Hussain-ur-Rehman (2023 YLR 74 Peshawar), wherein it was held that section 28 ibid being repugnant to the injunctions of Islam, no question of attaining title by mortgagees on prescription on expiry of60 years would arise.

10.In view of the aforementioned facts and circumstances, it is established that the courts below have arrived at concurrent conclusions after due appraisal ofevidence. A contrary view in the exercise of revisional jurisdiction is not permissible save in exceptional circumstances as envisaged in section 115 of the Code. The conclusions drawn rest upon sound reasonings. The petitioners have been unable to point out any misreading or non-reading of the evidence or jurisdictional defect in the

-il-

impugned judgments, Therefore, no interference is called for.

Consequently, the instant revision petition is found to be devoid of any force. It is, therefore, dismissed.

Announced

(Ghafoor Zomon)

JU

fl F e1 qt,it'lr''ED

'j4iiffi

(S.B) Hon'blc Mr' Justlcc Dr. Khurrhid lqbrl