Civil suit was filed by plaintiff (hereinafter called petitioner) against the defendants/respondents for redemption of suit land that he and proforma defendants are owners of the suit land measuring 107 Kanals 6 Marlas and Defendants No, 1 to 14 are mortgagees on the basis of Mutation No, 4737 attested on 25.09.1926.
2. The suit was contested by concerned defendants by submitting their written statement and the pleadings of the parties resulted into the framing of following issues:--
1. Whether the suit is hit by Section 10 CPC? If so its effect?
2. Whether the suit is bad for non-joinder of necessary parties?
3. Whether the suit is within time?
4. Whether the suit is bad for partial redemption?
5. Whether plaintiff & Proforma defendants are entitled to redeem the suit land?
6. If Issue No, 5 is proved in affirmative. What is the mortgaged amount?
7. What is the effect of Suit No, 122 decided on 26.01.1986?
8. Relief.
3. After recording evidence and hearing the parties, the learned trial Court, dismissed the suit of the plaintiffs on 09.09.2000.
4. Feeling aggrieved, an appeal was filed by the petitioner, which was dismissed on 31.04.2004.
5. Dissatisfied from the Judgments/Decrees of the lower Courts, the petitioner filed the instant revision petition.
6. Written arguments filed by the parties perused. I have minutely gone through these arguments and record in the light of which my discussion is as under.
7. It is in the written arguments of the petitioners that both the trial Court as well as appellate Court have not taken into consideration the principle laid down in 1991 SCM R 2063 & 1998 CLC 128.
According to the arguments both the impugned Judgments/Decrees the law has been mis- interpreted and thus resulted in miscarriage of justice.
8. The principle laid down in 1991 SCM R 2063 is that the decision had to take effect from 31.8.1991 on which date Section 28 of Limitation Act had seized to have effect but the suit was instituted on 27.04.1976 and decided on 09.04.1984, so in this perspective the principle of the Judgment rendered by apex Court are not applicable. Facts of both the cases are different. Similar is the fate of the other case law.
9. The suit land in this case was mortgaged prior to 1878 while present suit was lodged in 1986 thus it was filed after a century. The revenue record exhibited as Ex:PW-1/4 and Ex:PW-1/6 reveals that one Mir Alam was recorded as owner mortgagor but his father name was mentioned as Madazam while other Mir Alam s/o Mad Hassan has been record as prior mortgagee. The Mutation No, 4734 was executed by Mir Alam s/o Mad Hassan while the plaintiff belonged to original mortgagor who created the original mortgage. The Mutation No, 5123 & 5124, are based on mortgage agreement created before redemption. This arrangement took place between sub-mortgagees Mir Alam s/o Mad Hassan and Ghulam Jan s/o Molydad who are second mortgagees, so this agreement is not on behalf of actual owners. Therefore, mortgage of the original owner cannot be renovated.
10.In the case in hand the property in dispute is mortgaged since 1878 and is in possession of mortgagee and this possession in the said capacity continued till date and they would be deemed to be 'owner by prescription.
11.As far as the purchase of a some portion of suit land by Chandan, Aurang Zeb, Malik Imam and Hukam Khan is concerned it is to be pointed out that purchase was made in the year 1991 vide Mutation No, 11792 attested on 24.02.1991. The suit for redemption was instituted in 1986. Thus the purchase was made during pendency of suit and under Section 52 of the Transfer of Property Act this purchase is hit by principle of "lis pendise" and would be of no effect. The relevant provision of Section 52 of Transfer of Property Act is reproduced below for ready reference:-- "S.52 Transfer of property pending suit relating thereto--During the (pendency in any Court having authority in (Pakistan) or established beyond the limits of (Pakistan) by (the Federal Government) (***), of (any) suit or proceeding (which is not collusive and) in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights, of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may impose."
12. Keeping in view the above discussion both the Courts below have correctly appreciated the oral as well as documentary evidence. The petitioner has failed to prove any non-reading and mis- reading or miscarriage of justice to justify interference. In these circumstances this Court has no option but to dismiss the instant revision petition, leaving the parties to bear their own costs.