' MIAN SAQIB NISAR, J.---Respondent's suit for declaration claiming the ownership of the suit property, on account of the prescription was disallowed by the learned Civil Judge, vide judgment and decree dated 21-2-1995; however, on appeal filed by them, which was accepted, the suit has been allowed.
2. Briefly stated the facts of the case are that Wadhawa, the predecessor-ininterest of the petitioner before 1912, mortgaged the suit-land measuring 4 Kanals and 13 Marlas in favour of Daulu, predecessor of respondents. Petitioner on 19-8-1989, brought an application under section 10 of the Redemption and Restitution of the Mortgaged Land Act, 1964 with the Assistant Commissioner, which was allowed vide order dated 12-12-1989 and the land was directed to be restored without payment of the mortgage money. In pursuance of the above, Mutation No.270 dated 12-5-1990, Exh.D.1, was also attested in favour of the petitioner; furthermore, the petitioner got the possession of the property, as well in the light of said order. It may be pertinent to state here that before the above order, the respondents on 1-10-1989, brought aforementioned suit claiming title on the basis of prescription on account of lapse of 60 years. In this suit, petitioner contested the matter, and brought to the notice of the Court that there is an order of Assistant Commissioner directing the 'restoration of the property. But yet no amendment was sought in the plaint, by the respondents to challenge this order. Anyhow, learned Court below dismissed the suit, which in appeal, has been decreed.
3. Learned counsel for the petitioner contends that the exclusive jurisdiction for the purpose of redemption, restitution, or declaring the right of redemption having extinguished, or creation of the title in favour of the mortgagee due to prescription vests with the forum under the Redemption and Restitution of the Mortgaged Land Act, 1964 and the jurisdiction of the civil Court is barred as per section 17 thereof. It is also stated that once the order dated 12-12-1989, passed by the Assistant Commissioner, was implemented, thus the civil Court, without such order being set aside by the competent forum, could not have passed the decree for the prescription. It is also argued that Muhammad Yaqub, one of the respondents/ plaintiffs, while appearing as P.W.1, in his statement, has admitted that the property was got redeemed in the year 1943. In the light of such admission, there was no question that any prescriptive right has been accrued, by the respondents.
4. On the contrary, learned counsel for the respondents states that when the suit was brought in the year 1989, the period of 60 years had lapsed and the right to redeem the property of the petitioner, stood extinguished and the title of the property vested in the respondents. In this behalf, he has relied upon the Article 148 of the Limitation Act.
5. I have heard learned counsel for the parties. And find this to be a clear case of bar of jurisdiction.
The order of A/C for the restitution of the property, even if ex parte, should have been challenged by the respondents under the law, when it come to their notice, even it was during the pendency of the suit, but this was not done. The order was not even challenged in the same suit, by seeking appropriate amendment of the plaint.
Thus in the above situation, the provision of section 17 of the Act ibid squarely barred the jurisdiction of the civil Court, resultantly, the decree could not have been passed. Additionally reason in this behalf is that according to the admission of P.W.1 one of the respondents, the property was redeemed in 1943 and resultantly, no question of acquisition of any prescriptive right arises.
' In the light of above, by allowing this petition, the impugned judgment and decree of learned Appellate Court is set aside and that of the learned trial Court is upheld, with the result that the suit of the respondents stands dismissed.
Petitioner allowed.