' MUHAMMAD NAWAZ ABBASI, J.----These two civil petitions filed under Article 185(3) of the Constitution of Islamic Republic ,of Pakistan, against the consolidated judgment dated 15-11-2002 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, in a civil revision arising out of a suit for declaration filed by the respondents against the present petitioners involving common questions of law and facts, are proposed to be disposed of through this judgment.
2. The dispute between the parties relates to the land measuring 105 Kanals, 17 Marlas situated in Revenue Estate of Pindi Sarhal Tehsil Jand District Attock. The land in-question was owned by the predecessor-in-interest of the respondents which was mortgaged with non-Muslim, as per Jamabandi for the year 1894-95 and on their migration to India, on partition, the mortgagors and mortgagee rights contained in the Revenue Record continued in their names for a considerable period. Subsequently, the Central Government was substituted as mortgagee of the land in the Revenue Record and the mortgagees rights were allotted to J&K refugees, petitioners herein, vide Mutations Nos.173 and 174 dated 31-1-1984 and thereafter, the ownership rights were also transferred in their name vide Mutation No,325, dated 27-5-1986. The respondents predecessor-in- interest of the original mortgagors filed a suit seeking declaration that the suit-land was never mortgaged with non-Muslims and the entries in this behalf appearing in the Revenue Record were incorrect which were wrongly made at the time of attestation of mutation of inheritance on 13-6- 1885 and were ineffective to their rights. In the alternate, they pleaded that on migration of non- Muslim to India in 1947, the mortgage stood extinguished by operation of law and the land would no more be deemed as a mortgaged property. The petitioners contested the suit and pleaded that as per Revenue Record, the land was mortgaged with non-Muslim and on their migration to India, the Central Government having stepped into their shoes, would be deemed to be substituted as mortgagees and since the mortgage was not redeemed within the prescribed period provided under section 28 of the Limitation Act, 1908, therefore, the equity of redemption stood extinguished.
The suit was dismissed by the learned trial Judge treating it barred by time under Article 148 read with section 28 of the Limitation Act, 1908, vide judgment dated 27-6-1991 and further appeal filed by the respondents was also dismissed by a learned Additional District Judge, Attock, vide judgment, dated 31-5-1992. The respondents assailed the concurrent dismissal of the suit by the two Courts on the question of limitation before the Lahore High Court, Rawalpindi Bench through a civil revision and a learned Single Judge in Chambers in the light of law laid down by this Court in Samar Gul v. Central Government and others PLD 1986 SC 35, held that on migration of non-Muslim mortgagees to India, the right of redemption of the mortgage, would not extinguish despite the fact that mortgagee rights of the non-Muslims vested in the custodian under Pakistan (Administration of Evacuee Property) Act, 1957 or in the Central Government under Displaced Persons (Land Settlement) Act, 1958, and the equity of redemption would remain in favor of the original owner.
3. Mr. Manzoor Ahmed Rana, Advocate Supreme Court, learned counsel for the petitioner in C.P.
No,104 of 2003, contended that on migration of non-Muslim evacuee mortgages to India, their interest in the property vested in the Central Government under the law and after expiry of the prescribed period of 60 years for redemption of mortgage under section 28 of the Limitation Act, 1908, the right of equity of redemption of mortgage of the mortgagors would be extinguished and Central Government would become absolute owner of the property which would be available for allotment under Rehabilitation Law. Learned counsel submitted that the mortgagors in pursuance of the Chief Settlement Commissioner's memo. Dated 8-12-1959, could certainly exercise their right of redemption but they failed to avail the said opportunity, therefore, their right of redemption stood forfeited in terms of subsequent memo. Dated 22-4-1960 on the same subject. Learned counsel thus, argued that the right of mortgagors to redeem the mortgage stood extinguished by afflux of time and the mere entries in their names in the column of ownership in the Revenue Record, would neither attract the provisions of section 13 of the Limitation Act, 1908 nor it would be a source of an acknowledgement of their right in terms of section 19 of the Limitation Act for the purpose of redemption of mortgage.
4. Learned counsel for the respondents has submitted that although except the entries in the Revenue Record, there was no other evidence of the land being mortgaged with non-Muslim evacuee but instead of challenging the concurrent findings of three Courts in respect of the mortgage character of land, would confine to the point that on migration of non-Muslim mortgagees to India, the period of limitation for redemption of mortgage would be deemed to be extended under the law and the right of equity of redemption of original owner, would not be extinguished firstly for the reason that after partition, no suit for redemption of mortgage could be brought against the non-Muslim mortgagee, who migrated to India. Secondly, by virtue of Chief Settlement Commissioner memo. Dated 2-12-1959, the right of redemption stood acknowledged and thirdly, the substitution of Central Government as mortgagee in the Revenue Record, without change of ownership of mortgagors would give fresh life to their right of redemption by virtue of section 13 read with section 19 of the Limitation Act, 1908, therefore, the suit for declaration and redemption of mortgaged property would not be out of time.
5. The factual position emerged from the pleadings of the parties and the record is that non- Muslim evacuees were shown mortgagees of the land in the Revenue Record for the year 1894-95 and then these entries continued without any break or change but the land, subject-matter of mortgage, was not as such treated as an evacuee property by an express order either by the Custodian or by the Settlement and Rehabilitation Authorities. Be that as it may, whether the land was or was not as such treated as an evacuee property under West Pakistan (Administration of Evacuee Properties) Act, 1957, or the Rehabilitation Laws, the same having evacuee interest, would certainly be vested in Central Government by operation of law but the right of local mortgagor for redemption of the properties mortgaged with non-Muslim evacuee would not be destroyed and would be deemed to have been acknowledged by virtue of Chief Settlement Commissioner's memo. Dated 8-12-1959 which provided as under:-- "The land mortgaged by locals with evacuees has remained excluded from allotment under the Rehabilitation Settlement Scheme. The question of its final disposal has been considered and it has been decided that the amount (mortgage money) due to the evacuees in such cases should be recovered by the local Rehabilitation Authorities within their respective areas of jurisdiction. The needful will be done under section 25(2)(L) of the Pakistan (Administration of Evacuee Property)
Act, 1957. Powers under this subsection have since been delegated to the Deputy Rehabilitation Commissioners and Assistant Rehabilitation Commissioners by the Custodian of Evacuee Property, vide Custodian" orders dated 28-8-1959/17-11-1959 (copies enclosed). The Assistant Rehabilitation Commissioners concerned should immediately issue- a notice to the local mortgagors of this category to redeem the properties involved within one month, failing which the evacuee right in the properties shall be auctioned under section 25(2)(s) of the Pakistan (Administration of Evacuee Property) Act, 1957. Cases requiring disposal by means of auction should be reported to the undersigned after one month. The amounts which may be recovered in consequence of the redemption should be deposited in the compensation pool constituted under section 5 of the Displaced Persons (Land Settlement) Act, 1958."
' Under the above memo., the powers under section 25(2)(L) of Pakistan (Administration of Evacuee Property) Act, 1957 were delegated to the Deputy Rehabilitation and Assistant Rehabilitation Commissioner to issue notice to the local mortgagors to redeem the property within one month failing which the property would be liable to auction under section 25(2)(s) of the (ibid) Act but the perusal of record would show that no such notice was given to the mortgagors in the present case and consequently, from the acknowledgement of the right of redemption, a fresh period of limitation would be computed to exercise such right in terms of section 19 of the Limitation Act, 1908.
6. The mutation dated 27.6. 1986 was attested on the presumption that equity of redemption stood extinguished by virtue of section 28 of Limitation Act, 1908 and the mortgagee rights in the land were also allotted to the refugees from J&K (petitioners herein) on the basis of this mutation. The suit brought by the respondents was dismissed by the Court of first instance and the Appellate Court on the ground that same having been filed beyond the period of limitation provided under section 28 of the Limitation Act, 1908, for redemption of mortgage was barred by time under Article 148 of Limitation Act whereas the learned Judge in the High Court, having formed the view that the mortgagors right of redemption was not extinguished and they were still entitled to redeem the mortgage on payment of mortgage money, therefore, suit was not barred by time. In the light of above, the sole question which falls for determination is as to whether the equity of redemption of the mortgage on the expiry of period of sixty years from the date of mortgage, stood extinguished and the suit for redemption of mortgage was barred by time or the limitation for the purpose of redemption of mortgage would start afresh on the migration of non-- Muslim mortgagees to India or on acknowledgement of the right of redemption of local mortgagors by virtue of memo. Dated 8-12-1959. We, having examined the law on the subject, have not been able to find out any cogent reason to differ with the view that limitation for the purpose of seeking redemption of mortgaged property in a civil suit, would be counted from the date of acknowledgement of right of equity of mortgage.
7. There is no cavil to the proposition that if the suit for redemption of mortgage would have been filed beyond the normal period of sixty years prescribed under the law, after acquisition of full ownership rights by the Central Government, it would definitely be hit by bar of limitation under section 28 read with Article 148 of the Limitation Act, 1908 but in the present case only the mortgagees rights of non-Muslim evacuee, were with Central Government and since, the right of equity of redemption of the mortgagors stood acknowledged by memo dated 8-12-1959, therefore, the limitation for the redemption of scup mortgage would be counted from the date of acknowledgement in terms of section 19 of the Limitation Act, 1908 and not from the date of mortgage.
8. The suit for declaration of title through redemption of mortgage was a composite suit in which declaration as well as redemption of mortgage was sought and the petitioners being on notice about the real nature of the suit, would not be caused any prejudice on account of grant of relief of redemption of mortgage in the suit for declaration. Consequently, the technical objection to the maintainability of declaratory suit in the matter, was without any substance.
9. This Court in Samar Gul v. Central Government and others PLD 1986 SC 35 and Muhammad Khan v. Chief Settlement and Rehabilitation Commissioner PLD 1962 SC 284 has held that the right or the interest of the Muslim owners, in respect of property mortgaged with evacuee, would not be destroyed in the cases in which the ownership right was with local non-evacuee and only mortgagee rights were with the evacuee. It was held in Abdul Latif v. Government of West Pakistan and others PLD 1962 SC 384 that in the cases in which the equity of redemption in the properties owned by local mortgagees was owned by the evacuees, the evacuee character of the property in such cases, would be confined only to that interest and the right of petitioners, owners in the properties, in which part of the interest vested in an evacuee, would not be destroyed without compensation.
10. We in the light of foregoing discussion, are of the considered view that since Central Government acquired only mortgagee right of the non-Muslim evacuees and the right of redemption of local mortgagors was acknowledged vide memo. Dated 8-12-1959, therefore, the limitation for filing suit would start from the date of acknowledgement and notwithstanding the provisions of section 5 of the Pakistan (Administration of Evacuee Property) Act, 1957 which may exclude the effect of section 13 of the Limitation Act in the cases in which the evacuee interest in the properties vested in Central Government, the suit for declaration/redemption of mortgage, would not be hit by bar of limitation.
11. For the reasons given above, the judgment of the High Court is upheld and these petitions are dismissed. Leave is refused.