Esa Khan & others Vs Said Alam & others

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Judgment Sheet

IN THE PESHAWAR HIGH COURT, BANNU BENCH

JUDICIAL DEPARTMENT

Civil Revision No. 123-8/2021

JUDGMENT

Date of hearing.. 19.02.2024

Petitioners (Essa Khan & others) By M/s Gul Aslam Khan and Haji Javed lqbal Advocates.,

Respondents (Said Alam & others) By Mr. Umer Farooq, Advocate.

KAMRAN HAYAT MIANKHEL, J.- Through instant Civil Revision Petition under section I l5 CPC the petitioners have challenged the judgment dated 30.03.2021 passed by the learned Additional District Judge-I, Lakki Marwat, whereby appeal frled by the real respondents was accepted and the judgment and decree dated 10.01.2018 of learned Civil Judge-II, Naurang at Lakki Marwat in suit No.2l9ll (need) of 2013 was set aside. Resultantly, suit of the respondent/plaintiffwas decreed in his favour as prayed for.

2 Said Alam, herein referred to as the respondenVplaintiff, initiated a suit against the petitioners/ defendants and proforma respondents seeking the redemption of suit property comprising in Khata No.10 Khasra No.1435, 1450, and l45l Qita 03, with a total area of 179 kanal and 15 marlas, situated at Mouza Kot Kashmir. Allegedly, the property was mortgaged m exchange for Rs.86.75 as mortgage consideration. The respondenVplaintiff and proforma respondents are identified as the mortgagors, while

l't< the petitioners ate designated as the first and second mortgagees of the suit property. The initial mortgage transaction took place through mutation No.1089 on I1.09.1905, with physical possession transferred to the moftgagees. It is claimed that the mortgage agreement was periodically renewed, and given that less than sixty years have elapsed since the first acknowledgment, the property is considered eligible for redemption. The respondent/plaintiff has expressed his willingness to tender the mortgage sum of Rs.86.75. Despite repeated requests, the petitioners/ defendants have purportedly declined to accept the mortgage payment and surrender possession of the suit property.

3 The suit was resisted by the defendants No.l to 3 and defendants No.23 to 27 through submission of their joint written statement, wherein several legal as well as factual objections were raised. From the divergent pleadings of the parties the trial Court framed as many as 8 issues including the relief and both the parties were given full opportunity to adduce their evidence. From the plaintiff s side Patwari Halqa, Tariq Iqbal ADK and Naimat Ullah, special attorney for plaintiff got recorded their stateemtns as PW-l to PW-3 while in defense Muhammad Aslam Khan, defendant No.23, himself and on behalf of other defendants recorded his statement as DW-1. After conclusion of trial and hearing the arguments, the learned trial Court dismissed the suit of the respondent No.l/plaintiff vide judgment and decree dated

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10.01.2018, Feeling aggrieved, respondent No.l/plaintiff preferred regular first appeal before the District Judge, Lakki Marwat which was entrusted to Additional District JudgeJ, Lakki Marwat. In the meanwhile the respondent No.1/plaintiff filed an application for additional evidence of Patwari, which was allowed by the appellate Court and evidence was recorded. The appellate Court vide judgment dated 30.3.2021, accepted the appeal and thereby suit of the respondent No.1/plaintiff was decreed. Discontented with the judgment and decree of the appellate Court, the petitioners have approached this Court through instant civil revision petltlon.

4 Arguments of learned counsel for petitioners and that of learned counsel for respondents heard and record gone through.

5 Coming to the question of mortgage, we must reflect that it is created in the circumstances when the owner parts with the possession and income of land, obviously, under most pressing demand for money. No doubt it is his demand which results into creation of a mortgage yet one hard reality is always over looked that just one moment of weakness of a needy owner is exploited for a life time by the mortgagee. He enjoys the usufruct under the circumstances that the thing in his possession increases in value in geometrical progression white his money with the mortgagor devalues in arithmetical progression. Soon the mortgagee

recovers his whole amount from the produce that he receives and still receives his original amount back at the time of redemption. He annually and some time twice a year receives the price of parting with capital (the principal amount being in tact) and hence fulfils all the ingredients of interest.

6 Mortgage, the subsistence thereof and

prescription of title by mortgagee, are the conditions that militate against the right of a rightful owner, therefore, the Courts of law which also are the Courts of equity, should construe various transactions conceming mortgage in such a liberal way that the right of rightful owner survives and the one who has enjoyed the possession and produce for nearly sixty years and has recovered the amount manifold, should not be allowed to get away with the land as well 7 Keeping this principle in mind, we revert to the original mortgage in hand which admittedly was created through Mutation No. 1089 dated 11.9.1905 and possession was also delivered thereof. Later on vide mutations No.9009 and 9010 dated 05.7.1978 Zar Gul mortgagor sold whole of his property. That the respondent/plaintiff and sons of Zar Gul had purchased the suit land again vide sale mutation No.l 13 attested on 25.3.1904 and once again became owners in the suit land in which their father along with others were recorded as mortgagors.

8 The main contention of the learned counsel for petitioners is that the suit land cannot be redeemed as more

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than sixty years have elapsed since the creation of the mortgage and as per Article 148 of the Limitation Act a mortgagor can redeem the mortgaged property within sixty years, thus right of mortgagees is extinguished and the decision of the appellate Court is due to misreading and non- reading of evidence on record.

9 On the other hand the leamed counsel for respondent No.l/plaintiff stated that the mortgage is that of usufructuary mortgage and thus squarely falls within the purview of sub-section 2 of section 20 of the Limitation Act and hence amounts to acknowledgement under section 21 of the Limitation Act which acknowledgment is repeated with every crop every year so no period of limitation would run against the mortgage at all beyond one year. He further stated that the property can be redeemed at any stage without mischief of the law of limitation barring redemption after the passage of sixty years.

10.Here it is expedient to refer to section 20 of the Limitation Act, which is reproduced below:-

20.Effect of payment on account of debt or of interest on legacy.--[(l) Where payment on account of a 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:]

[Provided that,. . an acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the paymentl Effect of receipt of produce of mortgaged land.

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(2)Effect of receipt of produce of mortgaged land.--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 ofsubsection (l). Explanation.---Debt includes money payable under a decree or order ofCourt.

Perusal of the above section 20 sub-section 2 of the Limitation Act, 1908 clearly provides that where mortgaged land is in possession of the mortgagee the receipt of the rent or produce of such land shall be deemed to be payment for the purpose of sub-section 1.

Perusal of the mortgaged mutation No.1089 dated 11.9.1905 clearly manifests that the mortgage was usufructuary mortgage as possession was also delivered, thus as per sub-section 2 of section 20 of the Limitation Act, every produce of the crop will give a fresh cause of action to the respondenUplaintiff Similarly, sub-section 'D' of section 58 of the Transfer of Property Act also enunciate that where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage-amount, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly

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in payment of the mo(gage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee. Reliance in this regard is placed on case titled Abdul Haq Vs. Ali Akbar and others. 1999 SCMR 2531, in which it was held that sub- section 2 of section 20 of the Limitation Act is self- contained and even independent of the proviso preceding it concerning handwriting or signature of the persons making acknowledgement and thus concluded that simple possession of mortgagee and the receipt of rent or produce by him are sufficient ingredients to constitute absolute acknowledgement.

11.Similarly, in case titled "Khushi Muhammad and others Vs. Muhammad Ashfaq and others, (PLD 2014 Lahore 26). wherein it has been held that:-

"Contents of mortgage deed (Exh.Pl) contain that income of the mortgaged property and interest on the loan advanced to the mortgagee will be treated equal. It is obvious that respondent/mortgagee being in possession of the mortgaged shop is continuously enjoying the income of the mortgaged property as payment of interest on the debt which would amount to acknowledgment on the part of mortgagee giving fresh time of limitation within the meanings of section 20 of the Limitation Act 1908. In the attending circumstances of this case no period of limitation would run against the petitioner/mortgagor. The property can be get redeemed by the petitioner/mortgagor at any stage. without mischief of the law of limitation barring redemption after the passage of sixty years in terms of Article 158 of the Limitation

Act, 1908. Reliance be made upon Abdul Haq v. Ali Akbar and 12 others (1998 CLC 129 Peshawar)."

ln case lilled Khanzada Muha mad Rafique Vs. Hussain-ur-Rehman an d 46 others eOn YLR 74. it was held as under:-

"As mentioned earlier, the mortgage in hand is created and continues throughout under the conditions that squarely fall within the parameter con-templated by subsection (2) of section 20 of the Limitation Act, and hence amounts to acknowledgement under section 20(1) of the Limitation Act; which acknowledgement is repeated with every crop every year, if not twice a year. Thus, with the existing circumstances, no period of limitation would run against the mortgagor at all beyond one year. The property can be redeemed to any stage without the mischief of the law of Limitation barring redemption after the passage of sixty years."

t2. Besides section 28 of the Limitation Act, 1908 has been declared against the injunction of Islam by the Hon'ble Supreme Court of Pakistan in case title "Maobool Ahmad Vs-Governm Pak, ilan" 991 CMR 20 so no question of attaining title by mortgagee on prescription of the expiry of 60 years would arise.

13 The main contention of the learned counsel for petitioners was that the respondent/plaintiff is not the successor of the original mortgagor and is, therefore, no locusstandi to file redemption suit. To resolve this controversy, it is important to minutely peruse the whole record. The perusal of the record reveals that during the pendency of appeal the respondent/plaintiff preferred

/rq application for summoning of Patwari Halqa for verification of Fard Jamabandi as the learned trial Court has dismissed the suit of the respondent/plaintiff on the ground that respondent/plaintiff is neither the successor of the original mortgagees nor recorded as owner in the Fard Jamabandi Ex.PWl/1. The said application was accepted by the appellate Court and Patwari Halqa was examined as CW-l, who produced Zer-e-kar for the year 20ll-2012 pertaining to the suit property and other relevant documents. Perusal of the copy of Jamabandi for the year 20ll-12 (Ex.CWl/l) clearly depicts that the name of the respondent/plaintiff figures in the column of ownership.

During cross-examination he also admitted the fact that Allow-ud-Din and Shahab-ud-Din, sons of Zargul are recorded as owners of the disputed property. Perusal of Shajra-e-Nasab Ex.PWl/2 transpires that Mohib Ullah is the paternal grandfather of the respondent/plaintiff while Gul Pasta and Raham Bibi are the paternal aunts of the respondent/plaintiff. The record further reveals that as per statement of PW-2 (ADK), father of the respondent/ ptaintiff had sold his entire share in the disputed property vide mutations No.9009 and 9010 attested on 05.7.1978, on the direction of the Court and, therefore, his inheritance mutation was not attested. The respondent/plaintiff has purchased the entire suit property back vide mutation No. 1 l3 attested on 25.3.2004 from the persons to whom his

l0 lyo falher Zar Gul had earlier sold the disputed property through mutations No.9009 and 9010.

14 PW-2 further in his cross-examination stated that through mutation No. 1089 the suit property was initially mortgaged by Gulan Shah to Feroz Shah son of Naurang in the year 1905 in lieu of Rs.74, two anay and eight pai as mortgage. The perusal of Shajra-e-Nasab Ex.PWl/2 shows that that the original mortgagor namely Gulan Shah son of Mir Azam was having one daughter namely Salara and said Gulan Shah was the brother of Muhammad son of Mir Azam who was the grandfather of Zar Gd son of Mohib Ullah. Meaning thereby, Gulan Shah the original mortgagor was the real brother of the paternal grandfather of Zar Cul (father of respondent/plaintiff) and the chain has automatically been clear through Shajra-e- Nasb Ex.PWl/2.Even otherwise the respondenVplaintiff by buying the shares sold by the father of the respondent/plaintiff were bought back by the respondent/plaintiff through mutation ll3, thus stepping into the shoes of his father Zar Gul. Thus keeping in view what has been discussed above the respondent/plaintiff has succeeded to prove his case on merits through cogent documentary evidence and hence this revision petition is . r I...i_\ dismissed 1 I l,taR{02{ ttbaJ Announced:

lhsan*/ JU S.B Hon'ble Mr. Justice Kamran Hayat Miankhel