' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioners challenge the order dated 30-11-1995 passed by Member Board of Revenue being illegal and of no legal effect whereby the review petition filed by respondents has been accepted.
2. Brief facts of the case are that one Gulan son of Bakhat Ali, predecessor-in-interest of the petitioners mortgaged his property measuring 94 Kanals and 7 Marlas situate in Mauza Bait Alam Khan, Tehsil & District Dear Ghazi Khan with non-muslims, namely, Odu Das and Budhu sons of Teju Ram for Rs,99.50 vide Mutation No,200 attested in favour of the mortgagees on 27-7-1895. The non- muslim mortgages migrated from Pakistan to India and thus the petition for redemption of mortgage could not be made due to the absence of the mortgagees. The petitioners claimed that the limitation period stopped since 1-3-1947, whereas mortgage rights were mutated in the name of Central Government and the petitioners continued to be recorded as owners/mortgagors in the record of rights while the Central Government had been recorded as Mortgagee.
3. The petitioner moved an application on 31-3-1990 for the redemption of mortgage which was dismissed by the Collector vide order dated 7-9-1991. Being aggrieved of the said order petitioners No,1 & 2 preferred an appeal before the Commissioner, Dera Ghazi Khan, which was accepted by the Additional Commissioner vide order dated 25-5-1992. Thereagainst the private respondents filed a review petition, which has been accepted through the impugned order dated 30-11-1995.
4. Learned counsel for the petitioners contends that the petitioner's application filed on 31-3-1990 was well within time as the change of entry in the Revenue Record wherein Central Government had been recorded as a mortgagee amounts to acknowledgment under section 19 of the Limitation Act and it gave a fresh period of limitation. It is also contended that under section 13 of Limitation Act, the period of redemption and appeal was 60-years and as the mortgagees had left the country, the time of limitation cannot be counted. It is further contended that the private respondents had purchased land from the evacuee allottee in the year 1975, who were allotted the same as shown in the Jamabandi for the year 1965-1966. It is also contended that it was acknowledgment as laid down by the Hon'ble Supreme Court of Pakistan in 1999 SCMR 70 and the period for limitation for redemption of mortgage would restart from 1965 for 60 years, which view has also been adopted by the Hon'ble Supreme Court of Pakistan in the case reported as "Bani Begum and others v. Muhammad Azam Khan and others" (PLD 2003 SC 235). Also relies upon PLD 1986 SC 35, PLD 1997 Lahore 716, PLD 1978 Lahore 71, PLD 1971 Lahore 77, 1999 CLC 346, PLD 1992 SC 225 and 1991 SCMR 2063 in support of his contentions. It is also contended that Ghulam Muhammad while appearing as PW-1 had explained that the area of land was decreased due to consultation twice and land settlement. It is also contended that petitioners have owned 94 Kanals of land and they suffered the loss and the petitioners are only concerned with the redemption of land measuring 94 Kanals instead of 225 Kanals.
5. On the other hand, learned counsel appearing on behalf of the private respondents opposes this petition and contends that the case-law cited by the learned counsel for the petitioners are the decisions in civil suits and not in application moved for redemption of land. It is further contended that the property measuring 225 Kanals 17 Marlas was mortgaged and Mutation No,200 was sanctioned on 27-7-1895 but the application for redemption of total mortgaged land was not moved while the same was moved for partial redemption of land. It is also contended that it was admitted by Allah Ditta while appearing as P.W.2 that the total land measuring 225 Kanals, 17 Marlas was mortgaged and that the respondents are bona fide purchasers from the evacuee allottee who was not impleaded as party and Central Government was also not made party. It is also contended that the civil suit is an alternate remedy available to the petitioners. Also contends that PLD 1986 Supreme Court 35 is not application to this case. It is also contended that in the case-law cited by the learned counsel for the petitioners it is not held anywhere that the limitation will stop from 1947 and will restart after allotment. It is also contended that in Samar Gul's case reported in (PLD 1986 SC 35) it has been held by the Supreme Court of Pakistan that limitation period will restart in the year 1959 after issuance of Notification if the period of 60 years has not been elapsed while in the present case the period of limitation for redemption to the extent of petitioners had already been elapsed before the issuance of Notification in the year 1959.
6. Learned counsel appearing on behalf of the State also supports the arguments advanced by the learned counsel for the private respondents.
7. I have heard the learned counsel for the parties and also perused the contents of this petition as well as the documents attached therewith and case-law cited by the learned counsel for the parties.
8. The impugned order has been passed by Member Board of Revenue to the following effect:-- "3. I have considered the arguments of both the learned counsels. The impugned land was mortgaged on 27-7-1895 and the normal period of limitation of 60 years would have expired on 27- 7-1955. However, with the migration of non-muslims evacuees in 1947 the period of limitation stopped running with effect from 1-3-1947. Under section 7 of the Pakistan (Administration of Evacuee Property) Act, 1957 the property came to be vested in the Custodian who stepped into the shoes of non-muslim mortgagees. From the date of promulgation of this Act, the period of limitation would start running again. Out of the prescribed period of 60 years about 51 years and 8 months had already elapsed before the migration of Non-Muslim mortgagees leaving a balance of about 8 years and 4 months. After Custodian stepped into the shoes of non-muslim mortgages this period would have expired in 1965.
4. Vesting of the impugned property in the Custodian under the Pakistan (Administration of Evacuee Property) Act, does not amount to an acknowledgment under section 19 of limitation Act as it does not fulfil the requirements of the said section. The acknowledgment in order to effective under this section has to be made in writing, signed by the party against whom the rights or property is claimed. The law does not refer to the particular property impugned in this case and is couched in very general terms.
5. In view of the above discussion I hold that the application for redemption filed on 6-2-1991 was badly time-barred. The revision petition is, therefore, accepted and the order of additional Commissioner dated 25-5-1992 is set aside."
9. In the present case admittedly the land was mortgaged by the predecessor-in-interest of the petitioners to a non-muslim and after the separation of the sub-continent in 1947 the land was taken by the Central Government, which was subsequently allotted to an evacuee under Displaced Persons Land Settlement Act and the respondents have purchased the disputed land from the said allottee. However, the mutation has not been placed on the record by the respondents but in the Jamabandi of 1965-1966 the land was shown to have been allotted to the evacuee allottee and the petitioners are figured as owners, which entries in the Jamabandi on the basis of mutation are to be considered acknowledgment as held by the august Supreme Court of Pakistan in Samar Gul's case reported in PLD 1986 S.C.
35. The relevant portions are reproduced as under:- "8. The only question, therefore, that falls for determination is whether the view taken by the Courts below was correct that suit of the appellant for redemption of the mortgage was out of time and property dismissed as time-barred. The mortgage was created on 31st March, 1916 and the sixty years limitation computed from this date would ordinarily expire, as observed by the learned Judge in the High Court, on 31st March, 1976. On the admitted facts the appellants seems to have moved the relevant authorities for redemption of mortgage in pursuance of instructions issued by the Chief Settlement and Rehabilitation. Commissioner on 1st August, 1977, and as in terms of the aforesaid instructions the period of limitation of sixty years had already expired, his request was not entertained. It has, however, been urged with considerable force that the aforesaid memorandum of the Chief Settlement and Rehabilitation Commissioner, dated 8th December, 1959, wherein the Government acknowledged the right of redemption of the appellant and more particularly the entry in the Revenue Record showing the appellant as owner/mortgagor and the Central Government as mortgagee dated 11th January, 1969, constituted acknowledgments in writing before the expiration of the period of limitation, under section 19 of the Limitation Act, with the result that a fresh period of limitation accrued in favour of the appellant.
9. In this view of the matter, we have no difficulty in holding that a fresh period of limitation had commenced with effect from 11th January, 1969 and therefore, the suit of the appellant having been instituted within sixty years from the aforesaid date was well within time."
10. On the strength of Memo. No,6883-59/7042 R(P), dated 8-12-1959, it has also been held in the same judgment that "failure on the part of mortgagors to redeem the mortgage after issue of notice as instructed in the aforesaid memo, only. "evacuee rights in properties shall be auctioned. "
The Government cannot claim any right beyond mortgage rights in respect of such mortgaged property in favour of evacuee. It has further been held in the said judgment regarding the limitation that the Government by notification acknowledged right of redemption of mortgagor and more particular entry in Revenue Record showing mortgagor as owner/mortgagor, and Central Government as mortgagee in 1969 constituted acknowledgment in writing before expiration of period of limitation under section 19, Limitation Act, 1908, hence, fresh' period of limitation accrued in favour of mortgagee in circumstances. The facts of the present case are also similar to that of Bani Begum's case (PLD 2003 SC 235) wherein the predecessor-in-interest of respondents had mortgaged the disputed property to Muhammad Shah, etc. On 27-12-1920 and latter on the mortgagee rights of the disputed land were soled through mutation dated 31-12-1944. Again the said rights were given to the predecessor-in-interest of petitioner Akbar Khan vide Mutation No,225, dated 30-5-1945. As the last mutation was effected on 30-5-1945, the suit for redemption of disputed land was filed on 19-10-1989 for the mortgaged land claiming that limitation for the redemption of said land would start from the last mutation i,e, 30-5-1945. The Hon'ble Supreme Court had affirmed the same.
11. This Court in "Allah Ditta and others v. Sardar Khan and others" (PLD 1997 Lahore 716) while following the above said judgments has also held that 60 years limitation period has to be counted from the date of latest mutation. It was also held that the mortgagee of the land in question had migrated to India in the wake of Independence. By that time, that period of limitation i,e, 60 years if counted from 5-7-1895 had not expired. The period of limitation stopped running with effect from 15-8-1947 against the evacuee mortgagee in view of the provisions of section 13 of Limitation Act, 1908. The facts of this case are similar to the facts and circumstances of the cited case as in the said case the property was also mortgaged in the year 1895 and this Court held that as the mortgagee of land in question, had migrated to India in the wake of independence, the period of limitation stopped running with effect from 15-8-1947 and period of 60 years if counted from 5-7- 1895 had not yet expired till 15-8-1947.
12. In Muhammad Shafi v. Ghulam Qadir and others (PLD 1978 Lah. 71) this Court also held as under:-- "At the time of Partition in 1947, when the mortgagees migrated to India, neither a period of 60 years had expired with effect from the date of mortgage. i,e, 11-7-1899 or a period of 6 years with effect from 27-5-1946 when the Revenue authorities rejected the mutation. The period of limitation would then stop running in view of the provisions of section 13 of the Limitation Act."
' This Court in another case titled "Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others" (PLD 1971 Lahore 77) has held that right of redemption cannot be taken away by any stipulation in mortgage deed and such right remains alive unless extinguished by act of parties or decree of Court or by limitation prescribed by Article 148 of Limitation Act. The relevant portion is reproduced as under:-- ' The provisions contained in section 60 of the Transfer of Property Act are in the nature of a statutory right to redeem the property in cases where the transaction falls within the definition of a mortgage as spelt out in the various clauses of section 58. Irrespective, therefore, of a stipulation contained in the mortgage deed that if the mortgage is not redeemed within seven years the land will stand sold to the mortgagee, the right of redemption shall continue in view of the statutory provisions specially enacted by the Legislature to keep alive the right of the mortgagor to redeem the property in cases of this kind. Section 60 affirms the right of redemption in all mortgages and thus carries out the recommendations of the Privy Council in Thumbuswamay's case (21 A 241) that the Legislature should intervene to recognize a right of redemption in mortgages by conditional sale. The section, in other words, affirm the maxim "once a mortgage always a mortgage."
' The doctrine of a clog on redemption is in fact a rule of justice, equity and good conscience. The right of redemption cannot be controlled by any agreement made as part of the transaction of mortgage itself in view of, the clear provision 'contained in section 60 of the Transfer of Property Act, although after the mortgage the mortgagor may deal as he pleases with his property and so the maxim "once a mortgage always a mortgage" has no reference to agreements subsequent to the mortgage."
13. Admittedly the predecessor-in-interest of the petitioners had entered into a mortgage-deed with Non-Muslim in the year 1895 and 60 years period had not yet expired when the mortgagee of the land in question had migrated to India in the wake of independence. Following the case-law discussed above it is held that period of limitation stopped running with effect from 15-8-1947 and then again started in the year 1965-1966 when the entries were made in the Jamabandi in favour of the evacuee allottee regarding allotment of land by the Central Government. Thus, the period of limitation of 60 years would start from 1965. As such application for redemption of land moved in the year 1991 was well within time.
14. The learned counsel for the private respondents has raised objection that the above said case- law was declared in continuation of the judgments and decrees passed by the Civil Courts and is not applicable in the present case as here no civil suit was filed. But he has failed to point out that application for redemption of land filed by the petitioners in the Revenue hierarchy was not competent. Under Articles 189 and 201 of the Constitution of Islamic Republic Pakistan, 1973 the decisions of the Supreme Court and High Courts are binding on the subordinate Court. As such the impugned order having been passed against the settled principles of law by the superior Courts of this country is declared to be without lawful authority and this writ petition is maintainable.
15. For what has been discussed above, the impugned order dated 10-11-1995 passed by the Member Board of Revenue being against the principles of law on the subject settled by the superior Courts of the country is set aside and order dated. 20-5-1992 passed by the then Additional Commissioner (Revenue), Dera Gazi Khan is upheld. This Constitutional petitioner stands accepted with no order as to costs.