SHER MUHAMMAD KHAN, J. --- Petitioners have impugned through the instant revision petition the judgments/ decrees passed by learned Civil Judge-V, Lakki Marwat and learned District Judge, Lakki Marwat on 11-7-2006 and 18-9-2007 vide which Suit No,76/1 of 2004 and Civil Appeal No,25/13 of 2006 were dismissed respectively.
2. Precisely facts of the instant revision petition are that respondent No,1 filed suit for possession through redemption of mortgage to the extent of 1/2 shares of the land entered in khata No,1162 khasra No,2418 total measuring 11 kanals 2 marlas, situated in Mauza Titar Khel Gul Jan Tehsil and District Lakki Marwat, on payment of Rs .41 or whatever is determined by the Court against petitioners, respondents Nos.27 to 39 as contesting and against respondents Nos.2 to 26 as pro forma defendants.
3. The suit was only contested by present petitioners, rest of the contesting defendants Nos.1 to 5 and 8 to 15 (respondents Nos.27 to 39), admitted the claim of respondent No,1 by way of compromise Ex: PB and to this effect statement was recorded in the trial Court on 1-4-2004 and in the light of compromise and statement recorded in the Court, decree in favour of respondents Nos.1 and 2 against respondents Nos.27 to 39 was passed on 15-4-2004.
4. Appeal filed by petitioners against the judgment/decree of the trial Court did not succeed which was dismissed on 18-9-2007, hence, the instant revision petition.
5. Learned counsel for the petitioners argued that the subject matter of the litigation was mortgage on 9-7-1899 vide Mutation No,2652 and after expiry of sixty years the right of mortgagors, to redeem the property has become time-barred on 9-7-1959 and they have no right to sue on 19-1- 2004. He further argued that the learned Courts below failed to appreciate the evidence, adduced by both the parties in its true perspective, therefore, the judgments/ decrees passed by the learned lower Courts are the result of misreading and non-reading of evidence and the correct law has not been applied to the facts of the case.
6. Learned counsel for the petitioners further argued that even if the attestation of mortgaged Mutations No,6275 on 15-7-1925 and No,11396 on 25-9-1942 is considered acknowledgment on the part of petitioners even then the time for redemption of mortgage had expired on 24-9-2002. He placed reliance in the judgments delivered in the case of Kata Amir and another v. Mst. S.H.O.
Begum and others 2003 SCMR 589, Muhammad Zaman v. Abdul Malik Khan PLD 1981 Supreme Court 526, Zarif Khan v. Muhammad PLD 1983 Peshawar 58 and Amanullah v. Muhammad Ashraf Bajwa 2000 CLC 948.
7. On the other hand, learned counsel for the contesting respondents argued that even if the time has elapsed and the mortgagor has not instituted suit for redemption of mortgage, the mortgagee does not become owner of the property without filing suit for that purpose. He next argued that respondents Nos.27 to 39, who are equally beneficiary of the mortgage mutation, have admitted the claim of respondents and to this effect have recorded their statement in the trial Court on 1-4- 2004, which culminated into Mutation No,1423 attested on 15-7-2004.
8. He further argued that the petitioners are being receiving the usufruct of the mortgaged property, therefore, such receipt would be considered as an acknowledgment of mortgage and counted towards the payment of mortgage money within the meaning of section 20(2) of the Limitation Act (IX of 1908) and section 19 of the Act ibid is not attracted to the facts and circumstances of the instant case. Reliance was placed in the case of Nawaz Ali Khan v. Nawab Zada and others PLD 2003 Supreme Court 425 Abdul Haq v. Ali Akbar 1998 CLC 129.
9. The crucial question 'for determination in this case is the applicability of correct section of Limitation Act (IX of 1908). Petitioners' contention is that under section 19 of the Limitation Act the ingredients of acknowledgment are not, visible from contents of limitations because for acknowledgment liability in respect of property or right, is necessarily to be made in writing, signed by the party against whom such property or right is claimed and the suit for redemption of the property having not been filed within the period of sixty years as per Article 148 of the Limitation Act, 1908, mortgagors have lost their property rights over the land in dispute and the mortgagees have become absolute owners of the property.
10.According to his contention time being a great factor and the maxim that equity would help vigilant and not indolent, is fully attracted to the facts of the instant case.
11.For answering the above mentioned contention it is necessary to go through the evidence produced by the parties in the trial Court. There is no denying to the fact that original mortgage mutation was attested on 9-7-1899. Petitioners' predecessor-in interest Mir Qalam had acknowledged the mortgage by getting sanctioned another mortgage No,6275 on 15-7-1925 and later on his successors attested further mortgage through Mutation No,11396 attested on 25-9-1942.
12.Petitioners in their written statement have taken the plea that the nature of the property has been changed from agriculture to residential and for about 25/30 years residential houses are built up over the property, in which people are residing. But during recording his statement in the trial Court petitioner No,1 Muhammad Hashim admitted in cross-examination that my father Mir Qalam Khan was cultivating the mortgaged property, however, he himself has not cultivated it. He further admitted that at present there are every kind of trees planted, in the property, are present, which is surrounded by fence, established by us. It was also brought on the record in his evidence that the disputed property is situated towards North of his residential house and a thoroughfare is intervening his house and the disputed property.
13. Keeping in view the above admissions of the petitioner that the disputed property was cultivated by his father and at present multiple kind of trees are available in it, establishes the fact that the petitioner and his predecessors in interest were receiving usufruct of the mortgaged property.
14. The judgments relied upon by learned counsel of the petitioners are not applicable to the facts and circumstances of the instant case section 20(2) of the Limitation Act is applicable to the instant case instead of section 19.
15. In the case of Nawaz Ali Khan v. Nawab Zada (Supra) it has been held by the august Supreme Court that payment of rent or interest by mortgagee to mortgagor could not only be considered extension in limitation for recovery of such amount, but simultaneously such acknowledgment would also be considered extension in period of limitation for instituting proceedings for redemption of mortgaged property. This Court in the case of Muhammad Iqbal and others v.
Ghufranullah and others 2002 CLC 1533 has also held in the peculiar circumstances of that case when the extract from the periodical record indicated that the mortgaged in question was usufructory in nature because the possession of the mortgage property remained with the mortgagees who had been enjoying its usufructs ever since the creation of mortgage. On the basis of that fact it was ruled that where a mortgagee is in possession of the mortgaged property and is in receipt of the usufruct such receipt would be considered as acknowledgment of mortgage and counted towards the payment of mortgage money within the terms of section 20(2) of the Limitation Act.
16.The same view was adopted by this Court in the case of Abdul Haq v. Ali Akbar and 12 others 1998 CLC 129 by holding that where mortgaged land was in possession of mortgagee, receipt of rent or produce of such land would be deemed to be payment on account of debt or of interest which would amount to acknowledgment on the part of mortgagee, giving fresh time of limitation to mortgagor; provided that such receipt of rent or produce was before the expiration of prescribed period of limitation. Where mortgage was created and continued throughout under the conditions that squarely fell within parameters contemplated by section 20(2), Limitation Act, 1908 such acknowledgment was repeated with every crop every year, if not twice a year. No period of limitation would thus, run against mortgagor at all beyond one year. Property under mortgage in such case, could be 'redeemed at any stage without mischief of law of limitation barring redemption after passage of 60 years. The findings in the same judgment were affirmed by the Apex Court in the judgment reported in 1999 SCMR 2531.
17.The admission on the part of respondents Nos.27 to 39 is also additional factor in favour of respondents because no one would make any admission against his own interest unless the same is true. Had respondents Nos.27 to 39 contested the suit, they would have get equal benefits like petitioners but admitting the claim of contesting respondents against their own interest they have strengthened the claim of contesting respondents and weakened .the case of petitioners.
18.In the light of above I see no justification to interfere in the concurrent findings of the learned lower courts, which is otherwise based on sound reasoning and proper appreciation of evidence.
19. Resultantly, the instant revision petition is dismissed with no order as to cost.