The petitioners herein, being plaintiffs of a suit for declaration to the effect that they as mortgagees of the suit property since more than sixty years have attained the prescriptive title of the property, have impugned the concurrent findings of the two Courts below whereby their suit was rejected being not maintainable under Rule-11 of Order VII of C.P.C.
2. The learned counsel submitted that the petitioners are the mortgagees of the property with possession ever since 1886, when the property was mortgaged in their favour. The mortgagors have failed to redeem their property within the prescribed period of limitation i,e, 60 year. The period of limitation to redeem the mortgage expired much prior to the target date, so the case law referred to by learned Courts below is not applicable in their case as the law laid down by the august Supreme Court is not retrospective in its application. The findings of the Courts below are the result of mis-appreciation of law and requested for decision of the case on merits.
3. Learned counsel for the petitioners was heard at length and record of the instant petition perused with his assistance. The record would reveal that the petitioners being mortgagees with possession of the property in dispute since prior to 1886, have filed the present suit by claiming prescriptive title of the property in question. Their suit was rejected being not maintainable as the provisions of Section 28 of Limitation Act, 1908 were declared repugnant to injunctions of Islam by the apex Court of the land vide its judgment rendered in the case of Maqbool Ahmad vs. Hakoomat-e-Pakistan (1991 SCMR 2063) and a target date i,e, 31..8.1991 was given by the august Supreme Court of Pakistan. If mortgagee failed, to get a decree in his favour before the target date ibid, then no decree of prescription can be passed in his favour. The Government was asked to amend the law otherwise from the above referred target date, Section 28 of Limitation Act would cease to have its effect. After the cut off date, Section 28 is not the part and parcel of the Statute any more. So, no suit for prescription can be instituted after the target date. This view of the apex Court has consistently been followed by the subsequent judgments. Reference can be made to Durranai and 35 others vs. Hamidullah and 15 others (2007 SCMR 480), Muhammad Akram and others us. Arsalla Khan etc. (NLR 1997 Civil (Peshawar) 458, Baidullah Jan and 3 others us Hawas Khan and 11 others (PLD 2002 Peshawar 92). In the case of Muhammad Hussain and others vs. Wahid Bakhsh (deceased) through legal heirs (2004 SCMR 1137) effect of the judgment given in Maqbool Ahmad's case (supra) has been determined by holding that this law would be operative with effect from 31.8.1991 and would not govern the past and closed transactions and a decree passed in a suit way back on 14.11.1970 was protected. In addition to this, in Baidullah Jan's case (supra) while discussing the effect of repeal in the light of Article 264 of the Constitution of Islamic Republic of Pakistan, 1973 and Section 6 of General Clauses Act, 1897, his lordship observed: "6. A perusal of the above quoted provisions of the Constitution and the General Clauses Act would reveal that the expression "ceased to have effect" cannot be held synonymous with repeal as is envisioned by Article 264 of the Constitution and Section 6 of the General Clauses Act. In the former eventuality even pending cases cannot be death with in accordance with the law which has been so held repugnant to the Injunctions of Islam and ceases to have effect after the date mentioned in the decision while in the later eventuality a proceeding pending in a Court or any such right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed are fully protected unless a different intention appears from the repealing enactment."
5. The petitioner/mortgagees herein though were entitled to ask for their title through prescription much prior to the cut off date and had they not been in slumber and vigilant regarding their rights provided under the law, certainly they would have got such declaration much prior to the target date. Since they filed their suit for the first time in the year 2006, when Section 28 of the Limitation Act was no more there to their misfortune,. they cannot ask for the decree of title through prescription and as such the right of the owners/mortgagors to redeem their property cannot be extinguished by efflux of time. Contention of the learned counsel that the said decision of the apex Court was not applicable to their case finds no favour. So, in view of the above discussion, there seems no unlawful exercise of jurisdiction by the; Courts below. Hence, instant civil revision is dismissed in limine.