ALI AKBAR QURESHI, J.--- This order shah dispose of Civil Revision No. 96 of 1998 filed by petitioners to assail the validity of order dated 5-12-1997 by means of which, a learned Additional District Judge, Chiniot by accepting the appeal of the respondents herein, set aside the impugned judgment and decree of Civil Judge, Chiniot dated 11-121995 decreeing plaintiffs/respondents suit with reference to redemption of suit land.
2. Relevant facts of the case are that on 21-3- 1991, petitioners/plaintiffs instituted a suit against the respondents/defendants seeking decree for redemption of the mortgage with regard to land measuring 173 Kanal 9 Marla in Khata No. 53 situated in Mauza Bodhranwala Tehsil Chiniot. It further transpires that Pita son of Boota was owner of said land had two wives namely Mst. Satto and Mst.
Bhamo. He died issueless and after his demise, said property stood transferred to his above referred wives in equal share under the customary law as the limited owners. Eventually, Mst. Satto one of the widows mortgaged her share in favour of her son-in-law namely Muhammad son of Raja for a consideration of Rs. 600/-. Likewise, Mst. Bhamo the other widow of deceased Pira too mortgaged her share in the property in favour of her brothers namely Nawab and Jalal and in this regard, mutation No. 52, dated ,25-9-1921 was sanctioned for Rs. 700/-. And on the demise of Mst.
Satto, her share in the suit property also stood transferred to Mst. Bhamo vide Mutation No. 35, dated 6-8-1934 who became the limited owner of the entire estate left by her late husband Pira.
3. It was the case, of the petitioners/plaintiffs that in the year 1964 in the wake of demise of Mst.
Bhamo, the entire suit land stood reverted to the legal heirs of Pira deceased, and in this context, mutation of inheritance No. 147 was sanctioned on 5-10-1964.
4. Through the civil suit which was filed on 21-3- 1991, the plaintiffs challenged mutation No. 45, dated 9-11920 and mutation 52, dated 22-9-1921 on the ground that since they are owners of the suit property through inheritance, therefore, same be redeemed in their favour and other owners and expressed their willingness to repay the mortgage money of, Rs. 1,300/- collectively in Court to mortgagees.
5. Suit was contested by respondents 1. To 9 by filing their written statement and raising preliminary objection by specifically contending that the suit was hopelessly barred by limitation.
6. Pursuant to divergent pleadings of the parties, learned Judge seized of the lis framed as many as 10 issues, and consequently, both the parties adduced their respective evidence thereon, and on detail scrutiny and evaluation of evidence of the parties, decreed the suit in favour of plaintiffs/petitioners with the consequence that mortgaged property was redeemed subject to deposit of mortgage money amounting to Rs. 1,300/- within one month. In the event of failure to comply with said order, the suit was to be deemed dismissed. And in terms of averments in the plaint, rights of legal heirs of Pira stood determined by the revenue authorities in mutation No. 147, dated 5-10-1964 and in dictates thereof, legal heirs of Pira will get their shares and revenue authorities will correct their record accordingly.
7. Respondents/defendants being aggrieved of the judgment and decree of the Trial Court filed an appeal and, the learned Judge of the First Appellate Court, as stated ibid, accepted the appeal vide the judgment impugned, subject-matter of the instant civil revision. It may be noticed that respondents 6 to 15 were already proceeded ex-parte by this Court vide order dated 3-4-2004.
8. Mr. M. Farooq Qureshi Chishti, Advocate for the petitioners vehemently asserted that the property in question was mortgaged by two widows namely Mst. Satt, for the years vide mutation No. 45, dated 9-1-1920 and Mst. Bhammu mortgaged her property for the 22 years in the year 1921 vide mutation No. 52, dated 22-9-1921 respectively.
Learned trial Judge for resolution of the limitation of 60 years concluded that limitation would commence from years 1920 and .1921 respectively. And that period of 60 years had elapsed since the property was mortgaged by the widows of Pira deceased, and thereafter, inheritance was entered in favour of the petitioners/plaintiffs, but they did not initiate any proceedings of redemption within the stipulated period in law i.e. 60 years. The learned Judge recorded his finding while dealing with issue No. 5 with reference to limitation for filing the suit of redemption of the mortgaged property by holding that limitation for proceedings for redemption of the mortgaged property under Section 148 of the Limitation Act was to be started after completion of the mortgage period 1940 and 1943 respectively, whereas, the suit was filed in 1991, therefore, the same is held to have been filed within the stipulated period' of time as provided by law, so they stood precluded from claiming themselves to be the owners of the disputed property. Learned counsel further contends that it was clearly mentioned in the said mutations that both the mortgagors will not redeem the property before the period stipulated in the said mutation, hence the petitioners were unable to initiate any remedy.
On the question of limitation, it was contended by the learned counsel for the petitioner that as the mutations of mortgage were entered _ on 9-1-1920 and 25-9-1921, respectively, whereas, the suit for redemption of said property was filed on 21-3-1991, which is well within time, as the limitation provided for said proposition has been defined in Section 148 of the Limitation Act unambiguously 60 years. For facility of reference, it reads as under:--- Part X sixty years-Contd.
148. Against a mortgagee redeem or to recover possessionSixty years When the right to redeem or to recover possession accrues: Provided that all claims of immovable property mortgaged. to redeem arising Under instruments of mortgaged of immovable property in Lower Burma which had been executed before the first day of May, 1863, shall be governed by the rules of limitation in force in that Province immediately before the same day.
9. Learned counsel interpreted the said provision of law by contending that limitation would start from the date of redeeming the property and not from the date when the mortgage deed was executed, so the suit filed for redemption of said mortgage of the plaintiffs/petitioners is well within time, .And the finding of the learned Judge of the First Appellate Court are not only erroneous but in contravention of Section 148 of the Limitation Act, reproduced herein-above. Reliance is placed on 1984 CLC 309.
10. Conversely, learned counsel for the . Respondents contented that description of the property as given in the suit is incorrect and an objection was raised by filing the written statement. When questioned whether any effort was made by respondents to place on record any document or to rebut the contentions raised. By plaintiffs/petitioners with reference to the description of the property, learned counsel for the respondents replied in the 'negative. As regards application and interpretation of Section 148 of the Limitation Act ibid stipulating the limitation for redemption of mortgaged property as 60 years, learned counsel has expressed his inability to controvert the settled proposition of law.
11. The crucial question of limitation falling for determination in this case is that limitation as specified in Section 148 of the Limitation Act is 60 years, and the same is to be started when right of redemption or re-possession of the property accrues in this case. Admittedly, property was mortgaged way back in the years 1920 and 1921 which on the face of it is well within time.
12. For the foregoing facts, circumstances and reasons , I am of the considered view that it is a fit case for interference and invalidation of the judgment and decree impugned. Thus, by accepting this petition, I set aside the judgment and decree impugned dated 5-12-1997 and restore that of the Trial Court dated 11-12-1995 with consequence that suit of the plaintiffs/petitioners shall stand decreed in the terms incorporated therein.