' MAULVI ANWARUL HAQ, J.---On 22-4-1993 the petitioners filed a suit against the respondents. In the plaint, it was stated that they are the owners in possession of the suit-land. It was initially owned by Muhammad Yar son of Ranjah and Allah Bakhsh son of Muhammad who mortgaged the land with non-Muslim evacuees vide Mutation No.303 attested on 21-4-1893 and Mutation No.325 attested on 1905. The land was purchased from the said mortgagors by Sohanra the father of the petitioners. The non-Muslim mortgagees migrated to India in 1947 while the mortgagee rights came to vest in the Central Government and later transferred to the Provincial Government. The Federal Government proceeded to transfer the land to the respondent No.2, who further transferred the same to the respondent No.3 vide Mutation No.382 attested on 13-4-1993. According to them, the mortgagee is subsisting and have prayed for a decree for declaration accordingly and for redemption of the latd. The Provincial Government in its reply expressed ignorance in response to the averments that the land is owned by the petitioners and was mortgaged as stated by them.
However, it was stated that since the equity of redemption has been extinguished, the land has been rightly transferred. To similar effect is the reply of respondent No.2. The respondent No.3 claimed himself to be a bona fide purchaser and further proceeded to aver that the equity of redemption stood extinguished by efflux of time before the independence of the country and as such the Federal Government became the owner and the land has been correctly transferred to Respondent No.2 and purchased by him. Following issues were framed by the learned trial Court:--
(1) Whether suit of the plaintiff is barred by limitation? OPD
(2) Whether mortgage has become time-barred and therefore, suit property was duly transferred to Central Government and the plaintiffs have therefore, no cause of action to file this suit? OPD
(3) Whether the defendant No.3 is bona fide purchaser from defendant No.2 for value without notice and his rights are protected under law? OPD
(4) Whether the suit is barred by section 42 of the Specific Relief Act, as the plaintiff is not in possession of any portion of suit-land? OPD
(5) Whether the suit is incorrectly valued for the purpose of court-fee and jurisdiction, if so, then what is correct valuation for both purchases? OPD
(6) Whether the plaintiffs are estopped due to their words and conduct to file the suit? OPD
(7) Whether Muhammad Yar and Allah Bakhsh were original owners/ mortgagors of the suit property through Mutation No.303 dated 21-4-1894 and Mutation No.325 dated 19-1-1905 and after them the legal heirs had sold the property to the present plaintiffs subject to mortgagor and, therefore, the plaintiffs are owners in possession of the suit property? OPP
(8) Whether the suit property was incorrectly transferred to Central Government and was subsequently transferred to Defendant No.2 whereas plaintiffs are owners of the suit property and have right to get it redeemed? OPP
(9) If above Issue Nos.7 and 8 are proved in affirmative, then whether the plaintiffs are entitled to the decree for declaration as prayed for in the plaint? OPP (10). Relief.
' Evidence of the parties was recorded: The suit was dismissed vide judgment and decree dated 18- 2-2004. A first appeal filed by the petitioners was dismissed by a learned A.D.J., Dera Ghazi Khan, on 13-11-2004.
2. Learned counsel for the petitioners contends with (sic) (PLD 1986 SC 35), Ghulam Murtaza and others v. Sher Dil and others (2002 YLR 1677) and Muhammad Shafi v. Ghulam Qadi others (PLD 1978 Lahore 71) that the learned Courts below have acted without jurisdiction while passing the impugned judgment and decrees and dismissing the suit of the petitioners on the ground that the equity of redemption stood extinguished in terms of Article 148 of the Limitation Act, 1908. Learned counsel for the respondent No. 3 has tried to support the impugned judgments and decrees. No one has turned up for respondents Nos.1 and 2.
3. I have gone through the copies of the records. I have already reproduced above the material contents of the respective pleadings of the parties. As noted by me above, there is no denial of the fact that the land was owned by Muhammad Yar and Allah Bakhsh and was mortgaged by them to non-Muslims in the year 1893 and 1905 and that it was purchased by the father of the petitioners.
Otherwise the devolution of the land is the manner averred by the petitioners stands duly proved in the statement of P.W.1 who prepared the Fard Intikhab Exh.P.1 Copies of relevant mutations and records have also been produced.
4. It is but evident that on the eve of independence, the prescribed period of limitation for redemption i.e. 60 years (Article 148 of the Limitation Act, 1908) had not expired. The revenue state in question was under consolidation and the Misal Haqiqat was prepared 1963-64 regarding the said Sohanra to be mortgagor and Central Government to be mortgagee. These entries continued till 1972-73 when all the petitioners came to be recorded as mortgagors and petitioners Nos.1 and 2 as mortgagees. These entries continued till 1980-81. It was vide Mutation No.379 attested on 29-12- 1984 that the names of the petitioners were removed and the Central Government was entered as the owner of the suit-land. Vide Mutation No.175 the factum of transfer in favour of respondent No.2 was recorded on 18-12-1990 and respondent No.2 proceeded to transfer the land to the respondent No.3 vide Mutation No.382 attested on 13-4-1993. It is but evident that the only evacuee interest were the mortgagee rights which came to vest in the Federal Government. Upon the promulgation of the Evacuee Properties and Displaced Laws (Repeal) Act, 1975, the said rights came to vest in Respondent No.1 and only the said rights could have been transferred to the respondent No.2 and further to respondent No.3. The matter has since been settled in the said case of Samar Gul by the Honourable Supreme Court of Pakistan (PLD 1986 SC 35). I find that instead of following the said dictum or the Honourable Supreme Court of Pakistan, the learned A.D.J. Had preferred to follow the order of a Member, Board of Revenue reported as 1990 CLC 1990 (Allah Dawaya and others v.
Ghulam Mustafa and others). The impugned judgment does not at all make any sense. Under the Administration of Evacuee Property Act, 1957, only the evacuee interest vested in the Custodian and the vesting of mortgagee rights in the Custodian would not at all impair the effect and application of section 13 of the Limitation Act, 1908.
5. The learned counsel then tried to argue that his client is a bona fide purchaser and protected under section 41 of the Transfer of the Property Act, 1882. Nothing turns on the said contention as the factum of mortgage stands duly recorded in the Revenue Records which, of course, were not checked up by the respondent No.3 while purchasing the land from respondent No.2. The civil revision accordingly is allowed. Both the impugned judgments and decrees are set aside and the suit filed by the petitioners is decreed inasmuch as a decree for redemption of the said mortgage is passed in favour of the petitioner and against the respondents. This will be subject to the deposit of the due mortgage amount which is Rs.1,050 on or before 28-2-2006 with the learned trial Court, No orders as to costs.