' CH. SHAHID SAEED, J.---Through the instant civil revision, the petitioners assail the judgment and decree dated 13-4-2001 passed by learned Additional District Judge, Pasrur who accepted the appeal of the respondents and reversed the judgment and decree dated 4-9-1995 passed by learned Civil Judge, Pasrur whereby the suit of the respondents was dismissed.
2. Brief facts of the case are that the respondents Muhammad Munir and others filed a suit for declaration and permanent injunction with consequential relief against the petitioners on 2-3-1989 whereby they alleged that they are in possession of the property measuring 23 kanals 11 marla, fully described in the plaint, as mortgagees for more than 60 years which land has not been redeemed, so they have become owner of the said land through prescription.
3. The suit was vehemently opposed by the petitioners. They submitted written statement. Out of divergent pleadings of the parties, issues were framed. After recording evidence of the parties, the learned trial court reached the conclusion that though the claim of the respondents-plaintiffs regarding prescription seemed true but in light of the law laid down by the Hon'ble Shariat Appellate Bench in case of Maqbool Ahmad v. Government of Pakistan (1991 SCM R 2063) wherein section 28 of Limitation Act as well as law of adverse possession was declared repugnant to injunctions of Islam and also that mortgagee always remains a mortgagee and does not acquire proprietary rights, therefore, the suit could not be decreed, as such, the learned trial court dismissed the suit vide judgment and decree dated 4-9-1995. Feeling dissatisfied, the respondents filed appeal which was allowed vide impugned judgment and decree by the learned lower appellate court on the ground that the law laid down by the Hon'ble Shariat Appellate Bench will have prospective and not retrospective effect and the said law will have no effect upon the case of the respondents as it was instituted in the year 1989 while the law was declared on 31-8-1991. Hence this, civil revision.
4. Learned counsel for the petitioners inter alia contends that when a law is declared by the Hon'ble Supreme Court/learned Shariat Appellate Bench, it has immediate effect and all the cases pending adjudication at that time are decided in light thereof, except that some specific, target date is expressed in the judgment. He is of the view that the learned trial court has rightly dismissed the suit of the respondents in light of the law laid down by the Hon'ble Shariat Appellate Bench in Maqbool Ahmed's case (1991 SCM R 2063) that section 28 of the Limitation Act is repugnant to the injunctions of Islam and mortgagee always remains a mortgagee. He avers that the learned lower appellate court has erred in law while holding that the law declared by the Hon'ble Shariat Appellate Bench in 1991 will have no effect upon respondents' suit instituted in 1989 prior to the announcement of judgment in 1991. He further asserts that the impugned judgment is against law and facts and suffers from misreading and non-reading of evidence. He prays that this civil revision be allowed, impugned judgment and decree be set aside and the judgment and decree of the learned trial court be restored.
5. On the contrary, learned counsel for the respondents has vehemently controverted this civil revision and fully supported the impugned judgment and decree. He is of the view that the law prevailing at the time of institution of a suit will be applicable thereto and the law, whatsoever, declared thereafter will not affect the rights of any party, as such, the judgment of Hon'ble Shariat Appellate Benh supra will have prospective effect and the suit of the respondents instituted prior to announcement of said judgment will be decided in accordance with the law prevailing at the time of institution of the suit. He prays that the civil revision in hand be dismissed.
6. Arguments advanced by learned counsel for the parties have been heard and record also perused with their able assistance..
7. The moot point before this Court is whether the law laid down by Hon'ble Shariat Appellate Bench in Maqbool Ahmed's case (1991 SCM R 2063) will be applicable immediately or it will not affect the cause of action accrued prior to the target date, i.e, 31-8-1991. It is pertinent to mention here that the Hon'ble Shariat Appellate Bench vide aforementioned judgment has declared Section 28 of Limitation Act against the injunctions of Islam and also that the lawful owner of a property cannot be deprived merely on the basis of adverse possession and a mortgagee will always remain a mortgagee even if he has completed 60 years of his possession.
8. The respondent filed a suit in 1989 while the judgment of Hon'ble Shariat Appellate Bench was announced in 1991. Learned counsel for the petitioner asserts that the law laid down by the Hon'ble Shariat Appellate Bench will be applicable immediately on all the cases pending adjudication.
However, learned counsel for the respondents vehemently controverts the argument of learned counsel for the petitioner stating that the cause of action accrued prior to the aforementioned judgment will not be affected and the same will be decided in accordance with the old law.
Learned counsel for the respondents has mainly relied upon Article 264 of the Constitution of Islamic Republic of Pakistan and Article 6 of General Clauses Act. Both said Articles deal with the repealing of law and provide that where a law is repealed or is deemed to have been repealed, the repeal shall not, except as otherwise provided, affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed law but these provisions do not, in any manner, deal with the law which is declared to be repugnant to the injunctions of Islam. The matter put before this Court" is whether the law of adverse possession declared to be un-Islamic by the Hon'ble Supreme Court is applicable upon all the cases in hand and to come forthwith or it will not affect the proceedings already pending before the courts and there is no question regarding repealing of law in the instant case. In my view, introducing a new law by repealing the old one and declaration of some existing law against the injunctions of Islam are two different things. In the former case, the old law is replaced by a law which is combination of old and new provisions, the old law is generally not declared un-Islamic and the new law always speaks itself about its effectiveness upon the cases in hand or for the cases to come. But in the A latter case, the old law is never repealed or replaced by a new law but some existing law is declared against injunctions of Islam after due considerations by the court. In this view of the matter, Article 264 of the Constitution of Islamic Republic of Pakistan and Article 6 of the General Clauses Act are not attracted because these deal with repealing of a law, but there is no question of repealing of law in the instant case.
9. On the other hand, Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 is very much relevant in this case. It provides that:-- "203-D Powers, jurisdiction and functions of the Court.--
(2) ...
(3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam,---
(a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of law with respect to matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provisions into conformity with the injunctions of Islam; and
(b) such law or provision shall, to the extent to which it is held to be so repugnant cease to have effect on the day on which the decision of the Court takes effect."
10. Bare perusal of the above reveals that when any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, B such law or provision of law will cease to have affect on the day on which the decision of the Court takes effect. Section 28 of Limitation Act as well as law of adverse possession was declared to be repugnant to the injunctions of Islam by the Hon'ble Shariat Appellate Bench in the case Maqbool Ahmed v. Government of Pakistan (1991 SCM R 2063) effective from 31-8-1991. Accordingly, section 28 of the Limitation Act no more exists after the said date in the light of Article 203((3)(b) of the Constitution, reproduced hereinabove. Thereafter, no suit regarding adverse . Possession pending adjudication before any court could be decreed because section 28 of the Limitation Act was no more there. In the instant case, the suit was filed on 2-3-1989 while the law of adverse possession was declared un-Islamic on 31-8-1991. Since no decree till the target date, i.e, 31-8-1991 was passed, therefore, aft that date, no decree under the old law could be passed and the suit was not C maintainable as section 28 of Limitation Act had already been declared unislamic and ceased to have effect any more. However, if the suit had been decreed before the target date, the situation would have been different.
1 L Learned counsel for the respondents has also emphasized on the law laid down in cases Abdul Rehman and 12 others v. Muhammad Akram and 79 others (1999 SCM R 100) and Ch. Muhammad Aslam. Khan v. Malik Sher and others (1992 CLC 196). In the former case, the suit was instituted on 27-4-1976 and decreed on 9-4-1986. Since the decree had already been passed prior to the declaration of section 28 of Act ibid.Un-Islamic, so it was rightly held that the judgment passed in Maqbool Ahmed's case would have no effect upon that case because the cause of action accrued was decided prior to declaration of section 28 of Limitation Act un-Islamic. This citation is distinguishable from the facts of this case as in the citation case, decree had already been passed prior to announcement of judgment while in the instant case, no decree was passed prior to declaration of law of possession un-Islamic. However, in the latter case, the learned Judge has held that if some law is declared against injunctions of Islam, then cause of action accrued prior to such event will be dealt with in accordance with the old law. With due respect, I disagree with the same because, in my humble opinion, if some law or provision of law is declared against the injunctions of Islam, it means that it is not only un-Islamic today but it was un-Islamic in the past too, as such, it will apply upon all the cases pending at the time of announcement of aforementioned judgment, i.e, 31-8-1991. However, in order to avoid complications, the cases, which already stand decided or at least first decree has been passed therein, will be decided in accordance with the law prevailing before such declaration by Hon'ble Supreme Court and treated as past and close transactions.
This analogy is derived from Said Kamal Shah's case reported as PLD 1986 SC 360, as envisaged in section 34(2) of the Punjab Prelemption Act, 1991. Reliance is also placed on the law laid down in cases Baidullah Jan and 3 others v. Hawas Khan and 11 others (PI D 2002 Peshawar 1992) and Muhammad Iqbal and 17 others v. Ghaunsullah Khan and 17 others (sic).
12. Admittedly, the mortgaged land was usufructuary and the possession of the land is with the respondents-mortgagees from the date of mortgage of the land. Since then, the respondents mortgagees are enjoying possession of the land and benefiting through getting produce therefrom which will be treated as payment to the mortgagees for the purpose of limitation regardless altogether of the intention of the parties receiving such usufructs in view of the provisions contained in section 20 of the Limitation Act which clearly provides that where mortgaged land is in possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment. Respectful reliance is placed on the law laid down- by the Hon'ble Supreme Court of Pakistan in case Abdul Haq v. Ali Akbar (1999 SCM R 2531).
13. For what has been discussed above, this civil revision is allowed, the impugned judgment and decree dated 13-4-2001 passed by learned first appellate court is set aside and the judgment and decree dated 4-9-1995 passed by learned trial court is restored whereby the suit E of the respondents was dismissed.