Gul Alam Zar Khan vs Haider Ali

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, BANNU BENCH

(Judicial Department)

CR . No. 53-B of 2014

JUDGMENT

Date of hearing : 17.08.2015 Appellant-Petitioner: Gul Alam Zar etc By Mr. Zahir Shah & Mr. Masood Iqbal Advocate.

Respondent: Haider Ali etc By Mr. Ahmad Jan & Mr. Khosh Ameer Khattak Advocate.

MUHAMMAD YOUNIS THAHEEM, J.--- Through

instant Revision Petition, petitioners have challenged the concurrent judgments and decrees dated 29.01.2014, passed by the learned Additional District Judge, Karak and judgment and decree dated 28.11.2012 of the learned Civil Judge-II, Karak whereby suit of the respondents for possession by redemption was decreed against the petitioners while suit of the petitioners for prescription was dismissed.

2.Brief facts of the case are that respondents Haidar Ali etc filed a suit for redemption of suit property fully detailed in the plaint to the effect that the suit property was mortgaged time and again and lastly it was mortgaged through mutation No.2872 dated 14.8.1946 and due to mortgage, the rights of respondents (plaintiffs Haider Ali etc) to redeem the property was within time. On the other hand the petitioners also filed a suit for declaration to the effect that the suit property was mortgaged to the plaintiffs for more than 60 years and the respondents could not redeem the suit property during this period, therefore, petitioners have become owners by prescription.

3.Both the suits were consolidated by the learned trial Court and consolidated issues were framed. After recording pro and contra evidence and hearing arguments, the learned trial Court decreed the suit of the respondents seeking redemption of the suit property whereas suit of the petitioners seeking declaration for title by prescription was dismissed.

4.Aggrieved from the judgment and decree of the learned trial court the petitioners filed Regular Civil Appeal before the learned District Judge, Karak which was entrusted to the Court of learned Additional District Judge-I, Karak for disposal. Same after hearing was dismissed vide its judgment and decree dated 29.01.2014 hence the instant revision petition.

5.Both the learned counsel advanced their arguments like below.

6.The learned counsel for petitioner submitted that the impugned judgments and decrees passed by both the learned courts below are against facts and law and vehemently argued that according to revenue record the suit land was mortgaged much before in the year 1886 and the entries of the same were made in first-ever modern settlement of revenue record in the year 1887-88. It was mort gaged by the predecessor of present respondents No.1 to 15 namely Balkey or Malkey son of Cutt to a non-muslim namely Gogal Chand and thereafter non-muslim namely Gogal Chand transferred his mortgagee rights to Faqir Shah son of Awzar Gul, the predecessor of present petitioners

and other proforma respondents NO.16 to 30 vide mutation No.2872 attested on 14.8.1946 and argued that originally mortgage has not been redeemed by the owners, therefore, in view of Article 148 of the Limitation Act, suit of the plaintiffs/respondents was badly time barred. He placed his reliance on PLD 2003 SC 412, NLR 2004 Civil 1, 2003 SCMR 299 and judgment of this Court in Writ Petition No.1-B of 2000 titled “Hayat Mir and others Vs. SMBR” decided on 11.12.2014 and due to prescription and since the expiry of 60 years prescribed period from their predecessors the petitioners had become owners of the land and this legal aspect escaped from the notice of the learned two courts below and in this regard relied upon the judgment of Hon’ble Supreme Court of Pakistan Muhammad Maqbool’s case (1991 SCMR 2063). The learned counsel for petitioners further argued that mortgagee rights transfer by one mortgagee to the subsequent mortgagee could not be termed as novation and in the instant case both the learned courts below have taken the date of mutation 2872 as 14.8.1946 and thus has erred in law and facts.

7.Conversely, the learned counsel for respondents argued that according to Article 148 of the Limitation Act, the prescribed period for redemption is 60 years and the case law cited by petitioner is not applicable and Article 148 is intact would reckon from the date of attestation of first mortgage and if the mortgagor do not redeem it within the span of this 60 years then of course the prescription rights may develop but the circumstances of the instant case are altogether different.

8.Originally the suit land was mortgaged by the predecessor of the present respondents in favour of one Gogal Chand in the year 1886 after calculation by adding 60 years the time of expiry was the year 1946 and vide mutations Nos.2514 attested on 19.10.1942, mutation No. 2689 dated 20.8.1944, mutation No.2737 attested on 05.01.1945 and lastly mortgagee rights vested in Gogal Chand etc were transferred in favour of Faqir Shah son of Auzar Gul vide mutation No.2872 attested on 14.8.1946 and the sub-mortgagee much before the expiry of new start of 60 years from 1942 onwards to 1946 before the expiry of 60 years transferred his mortgagee rights further to the

subsequent mortgagee Faqir Shah and the law ordains that fresh period for next 60 years would start from the date of subsequent mutation of mortgagee rights in favour of subsequent mortgagee. In this regard the learned counsel for respondents referred case titled “Nawaz Ali Khan Vs. Nawab Zada (PLD

2003 SC 425).

9.After transfer of the mortgagee rights by Gogal Chand in favour of subsequent mortgagee Faqir Shah the predecessor of present petitioner acquired mortgagee rights from earlier mortgagee vide above said mutation on 14.8.1946 etc, with full knowledge that previous mortgagee was not owner of the property and afterward had no any relation or liaison to the mortgagor or predecessor in interest which amounts the “acknowledgment” of facts that a fresh contract with the previous mortgagee, is a novation of mortgagee rights contract and the time for filing proceeding for redemption shall be deemed to have commenced when required rights of mortgagee would start from the date of attestation of subsequent mortgagee rights mutation and in the instant case

that date is 14.8.1946, so on such acknowledgement by entering into fresh contract on 14.8.1946, the predecessor of present petitioner Faqir Shah acknowledged the rights of the original mortgagor, therefore, on such acknowledgement the time for initiating the proceeding for redemption shall be deemed to have extended automatically onwards 60 years, which according to simple calculation14.8.2006 while the present respondents filed suit for redemption on 23.02.2006, which is well within time and the sub mortgage of mortgagee rights to other mortgagee on 14.8.1946 amounts to novation of contract.

In this regard the learned counsel for respondents relied on

2009 SCMR 191, PLD 989 SC 688.

9.Arguments heard and record perused.

10.From the perusal of record it reveals that initially the suit land was mortgaged in lieu of Rs.90 Kabli currency of that time before British occupation by Malkey/Balkey son of Cutt to Gogal Chand son of Jevendas. The relevant record of Misl-e-Haqiyat placed on record pertaining to firstever settlement for the year 1886-87 is EX.APW2/1 and

EX.APW1/1 pertaining to year 1903-04 wherein it is shown that Show Rang mortgaged his land i.e. suit land in favour of Gogal Chand. In such like cases evidence of ADK is important and he brought record pertaining to different transactions of mortgages, sub-mortgages further sub-mortgaged mutations and the record pertaining to year 1886-87 till 14.8.1946. ADK appeared as APW-1 who produced Misl-e-Haqiyat pertaining to year 1886-87 as EX.APW1/1, Misl-e-Haqiyat pertaining to year 1903-04 as EX.APW1/2 Fard Jamabandi for the year 1943-44 till 1964-65 as EX.APW1/3, copy of mutation No.2514 attested on 19.10.1942 as EX.APW1/4, copy of mutation No.2689 attested on 20.8.1944 as EX.APW1/5, copy of mutation No.2737 attested on 05.01.1945 as EX.APW1/6 and as earlier discussed copy of mutation No.2872 attested on 14.8.1946, placed on record as EX.APW1/7. This APW-1 further produced record pertaining to mutation No.1948 attested on 15.02.1936 as EX.APW1/8 and Fard Jamabandi since 1908-09 till 1939-40 as EX.APW1/9.

11.According to Fard Jamabandi pertaining to year 1952-53 placed on record as EX.APW1/3 shows that Badshah Shehzada son of Show Rang, Mst. Gul Jehan bibi D/o Show Rang, Nowrang son of Gul Khan, Khab Nar Shah, Ali Badshah sons of Gulan are shown in column of ownership as mortgagors while Faqir Shah son of Awzar Gul has been shown as mortgagee. Same entry has been shown in Jamabandi pertaining to the year 1956-57, 1965-66. According to mutation No.2514 before the expiry of 60 years the contract of mortgage was renewed vide sub-mortgage mutation No.2514 attested on 19.10.1942 while if period is to be reckoned from the year 1887 then the novation or fresh contract was made by Show Rang etc in favour of Gogal Chand and the same sub-mortgagee rights were further transferred vide mutation No.2689 EX.APW1/5 by Mir Bash son of Gul Faraz and it was further sub-mortgaged to Wazir Azam son of Nek Qadam vide mutation No.2737 attested on 05.01.1945 as EX.APW1/6 as fresh contract of

12.So, it is proved from the record that the plaintiffs/respondents Haidar Ali and others are owners as well

as mortgagors and the present petitioners/ defendants are the mortgagees. As section 28 of the Limitation Act has been declared against the inunction of Islam by the Hon’ble Supreme Court of Pakistan vide its judgment Muhammad Maqbool case 1991 SCMR 2063 so, no question of attaining title by mortgagees upon the expiry of 60 years would arise. In this respect wisdom is derived from the case titled “Abdul Haq Vs.

Ali Akbar and others (1999 SCMR 2531).

12.It is now settled legal position that where mortgagee are in possession of the mortgaged property and are receiving usufruct of the suit land such receiving of usufruct would be considered as acknowledgement of mortgage within the meaning of section 22 of the Limitaton Act. So, both the learned courts below while adverting to the question of novation, prescription and question of limitation had correctly appreciated the law relevant to facts of the case. The case law referred by the learned counsel for petitioners is not attracted to the facts and circumstances of this case hence could not be pressed into service.

13.So, in the light of above discussion, it is held that the findings of two courts below are based on proper appreciation of evidence and law and no exception could be taken against them, so the present pettiion being bereft of merit is dismissed.

Announced.

JUDGE