1. ' SYED SAJJAD HASSAN SHAH, .J.--- Liaqat Ali and four others assailed the judgment and decree passed by learned Additional District Judge-III, Swabi dated 16-1-2007, whereby the appeal of the plaintiff/respondent was accepted and judgment and decree passed by the learned Senior Civil Judge, Swabi dated 30-4-2005 was set aside.
2. ' Brief facts of. The case are that:- ' Plaintiff/respondent filed a suit for recovery of possession of mortgaged property measuring 3-1 Kanals, 3 sarsai total area mortgaged shown as 5-1 Kanals comprising in Khasra Nos.72/11777 to 11693, 12023 to 11930 situated in Mauza Kotha, Swabi, equity of redemption sold by Hukam Khan the original plaintiff, the predecessor of present plaintiffs/respondents, who had originally filed the suit, during the pendency of the suit he died and the present plaintiffs/respondents are impleaded as his legal representatives. The predecessor of the present defendants/petitioners namely Said Jabbar had purchased the mortgagee rights in cultivation column from Mst. Qauresha vide Mutation No,8533 attested on 3-10-1959, therefore, prayed that his suit may be decreed.
3. ' The suit was contested by filing written statement by the defendants/petitioners, issues framed, evidence recorded. Learned trial Court seized of the matter dismissed the suit. Feeling aggrieved plaintiff filed appeal, the same was accepted, judgment and decree of the learned trial Court was set aside and the suit was decreed in favour of the plaintiffs/ respondents. .
4. ' Learned counsel appearing on behalf of the defendants/ petitioners contended that learned appellate court while deciding the appeal has travelled beyond the jurisdiction prescribed under the law, as the disputed mortgage is treated as usufuctuary mortgage, thus extinguished on the ground that since twenty years have already been expired, thus the mortgagees/defendants/petitioners have received the benefits equal or more than the mortgage money, therefore, it was extinguished, and passed the decree in favour of the plaintiffs/ respondents. He further contended that the plaintiffs/respondents have moved an application along with memo of appeal seeking amendment in plaint for redemption of entire mortgaged property as the suit was dismissed on ground of partial redemption, whereas, Said Jabbar, predecessor of petitioner had purchased mortgagee rights of an area measuring 5-1 Kanals, to this effect a Mutation No,11049 was attested on 25-1-1965, the same has .Not been decided by the learned appellate court, therefore, the judgment and decree passed by learned appellate court is unlawful and without jurisdiction may be set aside.
5. ' As against this, learned counsel for the plaintiffs/respondents contended that the learned appellate court in its judgment and decree has considered all the grounds agitated by both the parties and decided the matter in accordance with law. In order to elaborate his arguments reference made of purchase of mortgagee rights vide Mutation No,11049 attested on 25-11-1965 and Mutation No,8533 dated 3-10-1959, subsequently the plaintiffs/respondents have purchased the suit property vide Mutation No,20133 attested on 15-2-1994 to the extent of 3 Kanals, 1 Marla and 3 Sarsai in column of cultivation, therefore, the said area legally and validly can be redeemed, the judgment and decree passed by learned appellate court is lawful and requires no interference.
6. Arguments of the learned counsel of the parties heard and record carefully perused.
7. ' It is an admitted fact that the mortgagee rights in the suit property were purchased in cultivation column vide Mutation No,8533 attested on 3-10-1959 and Mutation No,11049 attested on 25-11-1965.
8. Vide these mutations an area of 5-1 Kanals was transferred in favour of the predecessor of the defendants/petitioneRs, Predecessor of the present plaintiffs/respondents acquired the suit property through sale with equity of redemption vide Mutation No,2131 attested on 15-2-1994 in the cultivation column.
9. ' Learned appellate court while deciding the appeal travelled beyond the parameters of its jurisdiction as prescribed under the law because when a remedy is available to a litigant under a special law, he has the right to invoke the jurisdiction of the said special tribunal or court established under the special law, because of the reason that section 9 of the Civil Procedure Code clearly specifies as under:- Jurisdiction of the Courts and Res Judicata.
10. 9 Courts to try all suits unless barred.The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
11. 'Explanation. ---A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the .Decision of questions as to religious rites or ceremonies.
12. ' Above provision of law expressly prohibits the cognizance of suit barred by any law. Visualizing the judgment of appellate court, in the light of above mentioned provisions of law, it is evident, that the exercising of jurisdiction was not permissible under the law. .
13. ' In the instant case, the learned appellate court has not taken pain to advert and comprehend the true intent and purpose of law, whereof failed to apply the same to the facts of the instant case, because, while deciding the appeal, focused upon the instructions laid down for the guidance of revenue hierarchy, for performance of their functions, relating to the revenue matteRs, The court of civil jurisdiction is not bound by the principle enunciated under para.40 of the Land Administration Manual, 1908, as in para. 3 of the judgment of appellate court, reference made and followed the same, the contents of judgment are reproduced as under:--- "It is a mortgage for limited period not extending twenty years, all the rights of the mortgagor being suspended, and the rents and profits enjoyed the mortgagee being taken as extinguishing by the end of term, his claim for both principal and interest."
14. "Beside the other thing, it is pertinent to note that after the expiry of the term of mortgage the land must be delivered to the mortgagor who gets it back free from any encumbrances. The mortgage debt is extinguished ipsojura and the mortgagee will be ejected. In the instant case, as it is clear that the predecessor in interest of the respondents was effected transfer. Of mortgagee rights and in lieu of Rs,600 w.e.f. 3-10-1959 on the basis of Mutation No,8533 and statutory period of twenty years had lapsed in 1979, thus the mortgage debt i.e. Rs,600 stood extinguished since long.
15. ' In view of the above, the judgment and decree of, the learned trial Court was set aside and the suit was decreed."
16. ' .The observations made by learned appellate court in respect of restitution of mortgaged land grossly erred in law, as the principle referred to above is governed and controlled by provisions of Redemption and Restitution of Mortgaged Lands Act, (XIX of 1964). Since the learned appellate court restituted the mortgage, being the subsisting usufructurary mortgage not less than twenty years old, thus the findings so made in contravention of provisions contained in section 10 of the Act (ibid), reproduced as under:--- "Section 10. Petition for Restitution--- The mortgagor of any subsisting usufructuaty mortgage not less than twenty years old, or of any usufructuary mortgage, the period whereof has expired, may present a petition to the Collector for the restitution of possession of the mortgaged land.
17. 'Explanation.--A mortgage shall be deemed to subsist for the purposes of this Chapter notwithstanding a decree or order for its redemption having been passed, provided that redemption has not taken place before the presentation of petition under this section."
18. ' Section 12 of said Act, empowers the Collector to declare and enforce orders in favour of mortgagor:--- ' If the Collector finds that the application is in respect of mortgaged land the possession whereof remained with the mortgagee for a period not less than twenty years, mortgage whereof expired, he shall notwithstanding anything contained in any other enactment for the time being in force or any contract or decree or order of any court:---
(a) order that the mortgage shall be extinguished without payment of the mortgage mony or any party thereof;
(b) in case of an express contract to the effect that the mortgagee shall be entitled to compensation for improvements made by him in the mortgaged- land determine the amount of such compensation; and
(c) where the mortgagee is in possession direct that the mortgagor be put into possession of the mortgaged land as against the mortgagee and that the title deed, if any, of such land in the possession of the mortgagee be restored to the mortgagor.
19. ' The Act (ibid) provides the remedy of appeal and revision and empowered the Collector to deliver possession on redemption or extinguishment of a mortgage and to undo the resistance during, execution as vested in the civil court under rules 97, 98 of Order XXI of the C.P.C.
20. ' Under section 17 jurisdiction of Civil Court barred, reads as under:--- "No civil court shall have jurisdiction to entertain any claim-or enforce any right under a mortgage declared extinguished under this Chapter or to question the validity of any proceedings under this Chapter."
21. ' It is clear from the above provision of law that judgment and decree passed by learned appellate court is violatory to the law referred to above.
22. ' As far as the application of above referred para or any other provision of Land Administration Manual, 1908 is concerned, notwithstanding it is persuasive not binding, but the same cannot be preferred over the statute, where the remedy has been provided and barring clause; in respect of exercising jurisdiction is existing, now in the light of principle that "act must be done as required under the law or not to be done at-all". If would be done in any other manner would be void ab initio, therefore, the judgment and decree passed by learned appellate Court is not suffering from jurisdictional defect.
23. ' It is not out of place to say that plaintiffs/respondents have not sought the decree for possession through restitution of mortgage of suit property, therefore, the learned appellate court outrightly granted decree to the plaintiffs/respondents, thus the learned appellate court exercised the jurisdiction against the law. Moreso, the impugned judgment and decree is passed in contravention of principle that "nobody should be condemned unheard" in this respect the defendants/petitioners might be provided opportunity of hearing and to defend the same before passing the decree as on the ground mentioned above by the learned appellate court.
24. ' Learned appellate court dilated upon the matter which had neither been agitated by either of the parties nor the findings to this effect have been rendered by the learned trial Court in its impugned judgment, the question which has not been brought for adjudication in the trial forum, the appellate court for the first time cannot take it up for decision. Learned appellate court while deciding the >appeal travelled beyond its sphere of jurisdiction by declaring as mortgage transaction taken place in the year 1959, and the same has lost its effects and significance, therefore, mortgagee duty has been discharged meaning thereby, the mortgage transaction is not in existence. If this is the position, then no occasion arises to decide the suit in favour of plaintiff/respondent, as on account or non-existence of mortgage transaction, the remedy of suit also whitals away. As they have no cause of action and locus standi again seek the recovery of same relief, therefore, judgment and decree passed by learned appellate court manifestly seems to be mutually contradictory, passed against relevant provision of law.
25. ' As earlier observed that the plaintiff/respondent had made an application along with memo of appeal seeking permission for amendment of the plaint in respect of mortgaged land to the effect that they have filed the suit in respect of partial redemption of the mortgaged property, they have filed not about the entire mortgaged property, therefore, they apprehend, that their suit may not be dismissed. Application referred to above also supported by an affidavit but not decided by the learned appellate court, however, learned appellate court was legally bound to first decide the application and then to proceed in the matter. The above referred defect was clearly pointed out in the application made by the present petitioner but the appellant in paragraph 8 of the memo of appeal has also mentioned that in case there is a defect in the suit, then plaintiffs/respondents are ready to withdraw the appeal, so in this scenario, the learned appellate court failed to take notice of the above mentioned defect and decided the case, besides, the learned appellate court has failed to observe the provisions contained in Order XLI, Rule 31, C.P.C. While passing the judgment.
26. ' In view of the above discussion the judgment and decree passed by learned appellate court is the above observations, the appeal is deemed to be pending decision. Learned appellate court is directed to decide the instant appeal within a period of two months, after receipt of the record positively.
27. ' This revision petition is accepted and the appeal stands remanded in above terms with no order as to costs.