JUDGMENT MAZHAR ALAM KHAN MIANKHEL, J.---The impugned herein by the defendants/petitioners are the concurrent findings of the two Courts below whereby a suit for declaration and redemption of mortgage was decreed in favour of the plaintiffs/respondents by Civil Judge, Kohat vide his judgment and decree dated 20-10-1997 and appeal there-against of the present petitioners, defendants in the main suit, was dismissed by the learned Additional District Judge, Kohat vide his judgment and decree dated 24-5-2001. The petitioners, being aggrieved of the above said findings of the two Courts below, have invoked the revisional jurisdiction of this Court by challenging the findings of the two Courts below being result of unlawful and improper exercise of jurisdiction by both the Courts and misreading and non-reading of the evidence available on the record.
2. The suit property was the ownership of predecessor of the plaintiffs/ respondents who had mortgaged the same vide registered deed dated 20-2-1907. The said property was re-mortgaged by their predecessor again through a registered deed dated 19-2-1919 against a consideration of Rs:10,000 for a period of five years without possession. It was stipulated in the mortgage deed that in case of failure of the mortgagor to pay back the consideration of the mortgage within the given time, the mortgagee, then would be in a right to get the possession of the property or the mortgage money through Court. Resultantly the mortgagee (non-Muslim) filed a suit in the Court of Senior Civil Judge, Kohat against the legal heirs of the predecessor of the plaintiffs/respondents namely Obaidullah Khan on his failure to pay back the mortgage money (Suit No.10 of 1936). The same was decreed in favour of the mortgagee vide judgment and decree dated 15-6-1936 and appeal there-against was also dismissed vide judgment and decree of the appellate Court dated 19-5-1937 and said decree of the civil Court was incorporated in the revenue record through Mutation No.558 dated 11-11-1939 in the name of mortgagee. After partition of the subcontinent, the mortgagee rights of the said property were transferred in the name of Central Government. The record of the case would further reveal that the mortgagee rights in the suit property were transferred by the Central Government in the name of an evacuee with the name of Wazir son of Kinsa against his verified claim dated 27-9-1973 and Mutation No. 1097 dated 16-2-1974 was entered and attested in the name of said evacuee. Then through even dated Mutation No.1098, his inheritance devolved upon his son Rahim Bakhsh. Entries of yet another Mutation No.1099 of the same date would reveal that said Rahim Bakhsh sold his mortgagee rights to one Muhammad Usman son of Suleman and the ownership of the property remained in the name of predecessors of plaintiff/ respondents. All the three above mutations refer to R.L.II No.2. Yet some other mutations regarding R.L.II No.6 would reveal that through Mutation No. 60 dated 20-4-1976 ownership rights of present respondents along with mortgagee rights in the name of Muhammad Usman have been transferred to Wazir son of Kinsa whereas Mutation No.66/1 is regarding inheritance of Wazir in favour of Rahim Bakhsh his son who vide Mutation No.66 transferred the same in favour of Jumma Khan present petitioner through sale and lastly through Mutation No. 67 dated 5-6-1976 petitioners redeemed the property in their favour.
3. The main contention of the learned counsel for the defendants/petitioners was that the present petitioners were the owners of the property on the basis of valid and genuine sale mutations and their rights cannot be denied through redemption of mortgage. Yet another submission of the learned counsel which was vehemently argued was that the suit of the plaintiffs/respondents was hopelessly time barred and they were not entitled to redeem the property in their names.
4. As against that, the learned counsel for the plaintiffs/respondents contended that the findings of the two Courts below are based on proper appraisal of evidence on the record and proper application of law. The plaintiffs/respondents are still the recorded owners of the suit property and the suit of the plaintiffs/respondents was well within time and was rightly held so by the Courts below and requested for dismissal of the present revision petition being meritless and against the concurrent findings of the two Courts below.
5. The learned counsel for the parties were heard at length and record of the case was perused with their assistance.
6. The perusal of 'Register Haqdaran Zameen' for the year 1970-71 copy of which is available on the record as Exh.P.W.2/1, would reveal that the suit property was recorded in the name of plaintiffs/respondents in the column of ownership as mortgagor while Central Government was recorded as mortgagee of the suit property. The record of the case would further reveal that the entries in the column of ownership, as stated above, were replaced with the names of present petitioners as reflected in the copy of `Register Haqdaran Zameen' for the year 1976-77 Exh.P.W.2/2.
The subsequent Register Haqdaran Zamin i.e. 1980-81 Exh.P.W.2/3 and 1984-85 Exh.P.W.2/4 contained the same entries. As the plaintiffs/respondents were admittedly lawful owners of the suit property which was mortgaged by their predecessor way back in the year, 1907 in the names of non-Muslims and after partition, the said mortgagee rights were transferred in the name of Central Government. Said unlawful and incorrect entries in the revenue record repeated in the subsequent record of rights will have no bearing against the rights of the plaintiffs/ respondents being lawful owners of the property. Said unlawful entries cannot hold the ground. The ownership rights of the plaintiffs/respondents can in no way be transferred to any body unless they themselves do away with their property. Transfer of ownership rights in the names of petitioners cannot be understood.
Sale of mortgagee rights could be accepted but how the ownership of the plaintiffs/respondents get transferred in the name of petitioners which on the face of it appears to be fraudulent. When ownership of the vendors of the petitioners is not established, then how petitioners would get benefit of the entries in their names. As in case of an evacuee as mortgagee, the Central Government steps into the shoes of evacuee mortgagee and only assumes mortgagee rights available to evacuee and under the law, the Central Government was only able to transfer what it received i.e. Mortgagee rights alone and transfer . Of ownership rights of the mortgagors of the property, by the Central Government is nothing but a fake and fraudulent transfer having no adverse effects of the same against the plaintiffs/respondents.
7. As far as the question of right to redeem the property of the plaintiffs/ respondents is concerned, that is a well established right of the owner of the property. As it was a mortgage in favour of non- Muslim and after the partition of the sub-continent, limitation against the said mortgages became suspended in the year 1947 and thereafter transfer of the same in the name of Central Government acted as acknowledgment under section 19 of the Limitation Act, 1908 (hereinafter would be referred as the Act of 1908). This will provide a fresh period of limitation to the plaintiffs/respondents to go for redemption of their property and if seen from this angle, the suit of the plaintiffs/respondents is well within the period of limitation as prescribed by the law. Had the period of limitation for redemption of mortgage expired prior to the year, 1947, then under the law, the owners had no right of redemption and thereafter would have no fresh acknowledgement but at the time of partition of the sub-continent, this mortgage was well within its period of time, so the partition and creation of Pakistan in the year, 1947, suspended the law of limitation and then transfer of mortgagee rights in the name of Central Government acted as acknowledgement under Section 19 of the Act of 1908, and this suit of the plaintiffs/ respondents was rightly held to be within the period of limitation.
8. It will also not be out of context to mention here that after a decision given by the Shariat Appellate Bench of the august Supreme Court vide its judgment given in the case of Maqbool Ahmad reported in 1991 SCM R 2063, section 28 of the limitatoin Act was declared against the injunctions of Islam and after cut-of date i.e. 31-8-1991, drastic changes have occurred in the law of the land. Mortgagee after this cut-of date cannot sue for prescriptive title which in other words would mean that the mortgagor will remain as mortgagor and the mortgagee will remain as mortgagee and mortgagor at his sweet discretion can opt for redemption of his mortgage whenever he likes. Similarly, after the above said cut-of date, no one can claim adverse possession of any property. Law, of the land has after the above decision has become settled. Some of the leading cases amongst others can be referred Durranai and 35 others v. Hamidullah Khan and 15 others (2007 SCM R 480), Munawar Shah v. Bahadur Shah and 7 others 2007 SCM R 597; Muhammad Hussain and others v. Wahid Bakhsh (deceased) through Legal Heirs (2004 SCM R 1137).
9. So, in this view of the matter, the findings of the two Courts below are in accordance with law. No misreading or non-reading of any material evidence was referred to by the learned counsel for the petitioners. When this being the situation, the concurrent findings of the two Courts below cannot be interfered with by this Court in exercise of its revisional jurisdiction. Hence, this revision petition being meritless is hereby dismissed with no order as to costs.