NISAR HUSSAIN KHAN, J.---Through instant revision petition, petitioner has questioned the judgment and decree of learned Additional District Judge, Karak dated 30-10-2004, whereby accepting appeal of respondents-plaintiffs, the judgment and decree of learned Civil Judge-I, Karak dated 22-7-2002, was set aside and suit of the respondents-plaintiffs for redemption, was decreed.
2. The resume of the facts forming the background of instant revision petition is that Amir Sabar Rehman etc. Plaintiffs-respondents filed a suit for possession through redemption of the property mentioned in the heading of the plaint. The suit was contested by the defendants by filing written statement, wherein they apart from controverting other contentions of the plaintiffs, alleged that there is a decree in favour of defendant No,4, hence, he being a Hissadar owner in the suit property, the suit is liable to be dismissed, being barred by law. After due contest, the suit was dismissed by the learned. Trial Court, against which, plaintiffs-respondents filed appeal, which was allowed and consequently, suit of the respondents-plaintiffs was decreed by the learned Appellate Court on 30- 10-2004, hence, this revision petition.
3. Learned counsel for the petitioner argued that petitioner is, successor of Mir Hashim, whereas, respondents are the legal heirs of Imran, while both, Mir Hashim and Imran, were real brothers inter se, who jointly mortgaged the suit property vide Mutation No,3836 dated 13-6-1910; that the property was redeemed by the respondents vide Mutation No, 41056, dated 20-1-1953, while mortgage to the extent of defendants remained intact, so the suit of the plaintiffs-respondents is hopelessly time barred by virtue of Article 148 of the Limitation Act, 1908, which is liable to be dismissed.
4. As against that, learned counsel for the respondents-plaintiffs to the extent of relation of the parties conceded by contending that Mir Hashim and Imran, were the. Sons of one Shakamran and plaintiffs-respondents are the legal heirs of Imran, while petitioner is successor of Mir Hashim. He maintained that vide Mutation No,32541 dated 19-7-1943, the mortgagee rights were sold while the share of the respondents were redeemed vide Mutations Nos.1582 and 1583 dated 26-8-1985, in pursuance of the Court order; that share of the defendants were still mortgaged and in this way defendants became the mortgagees to the extent of share of the respondents apart from being co-owners in the suit property and in view of this factual position of the case, fresh cause of action accrued to the respondents-plaintiffs and suit was rightly decreed by the learned Appellate Court.
5. I have given my anxious consideration to the respective arguments of the learned counsel for the parties, and have scanned the record with their valuable assistance.
6. According to averments of the plaint, the suit property was mortgaged by the predecessor of the plaintiffs-respondents on 13-6-1910 vide Mutation No,3836. The defendants in their written statement have referred a decree of the Court in favour of defendant No,4, without elaborating the nature of the decree and the actual Court, which passed the decree and a casual reference has been made that defendants are "Hissadar owners" in the suit property. While instant suit being filed after 60 years, is time barred. In Para No,5 of their written statement, they have categorically mentioned that defendants Nos.4 to 7 are in possession of the mortgaged property, which has never remained in possession of the: plaintiffs and defendants Nos.8 to 24. According to the statement of Patwari Halqa (P.W.1), defendants Nos.1 to 3 are recorded as owners as well as mortgagees of the suit property, in the revenue record. By virtue of Article 113 of the Qanun-e- Shahadat Order, 1984, facts admitted in pleadings, need not be proved, through evidence. In view of admission of defendants, in their written statement, the mortgaged property remained in possession of the defendants as mortgagees, which fact is further supplemented by statement of Gul Nawaz D.W.1, in his examination-in-chief, wherein he again reiterated the same fact that the suit property is in possession of the defendants. Similarly, in his cross-examination the same fact was also admitted by him Likewise, Bilawar Khan DW.2, also stated the same fact that the mortgaged property is in their possession since 1886-1887. According to the revenue record, the suit property was mortgaged by Imran and Mir Hashim sons of Shakamran vide Mutation No,749/1.
According to Mutations Nos.1582 and 1583, attested on 20-8-1985, the property was redeemed, in pursuance of judgment and decree of the Civil -Judge, Karak dated 9-4-1984, in Suit. No,361/1.
7. It appears from these mutations that defendants had redeemed their shares by filing suit in the Court, on the basis of which, Mutations Nos.1582 and 1583, were attested and thereafter they took over possession. Of the property, as owners as well as mortgagees, to the extent of shares of the respondents-plaintiffs. After getting the property redeemed, originally mortgaged by the predecessor of the parties, defendants-petitioners became mortgagees to the extent of shares of the respondents-plaintiffs on the principle of subrogation, embodied in section 92 of the Transfer of Property Act, 1882. The defendants have redeemed the property being the successors of the co- mortgagor and co-owners in the suit property. By- redeeming the property on the principle of subrogation, they have substituted the original mortgagees to the extent of their mortgagee rights about the share of the plaintiffs-respondents, and thus became entitled to reimbursement of the mortgage amount paid by them in respect of share of co-mortgagors/respondents by stepping into the shoes of previous mortgagees. In this. Regard ratio of Ahmad Khan's case (2009 SCM R 191) is relied. However, by taking over possession, after redemption of the property, their possession cannot be adverse, to the interest of other co-owners,, It is settled principle of law that every co- owner, sitting in possession of a joint property, is enjoying the possession on behalf of all the co- owners and he cannot urge the plea of adverse possession against his co-owners,
8. Besides that a fresh "period of limitation would be computed from the date of subrogation. It is evident from the record as discussed earlier that defendants/mortgagees have been enjoying possession and usufruct of the suit property since inception of the mortgage. According to the revenue record, it is also shown in possession of the defendants, which clearly suggests that mortgagees have been enjoying the possession and usufruct of the suit property since 1918, the year of creation of mortgage. By virtue of section 20(2) of the Limitation Act, 1908, the receipt of rent or produce of the mortgaged land by the mortgagee, when it is in his possession, is deemed to be the acknowledgment of the payment of debt for the purposes of sub-clause (1) of the Ibid Section and the time would be computed from the date of such acknowledgment. Section 20 of the Limitation Act, 1908, reads as follows:- ''S.20. Effect of payment on account of debt or of interest on legacy.-- (1) Where payment on account of debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, or by his duly authorized agent, a fresh period of limitation shall be computed from the time when the payment was made: [Provided that*an acknowledgement of the payment appears in the handwriting of or in a writing signed by the person making the payment].
' Effect of receipt of produce of mortgaged land.
(2) Where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of subsection (1)".
It clearly postulates that when a mortgaged property is in possession of the mortgagee and he is receiving rent or usufruct thereof, the receipt of the produce on every harvest, is deemed as an acknowledgment. By virtue of this provision of law, the time would be reckoned afresh from every harvest and the mortgagor shall have recurring cause of action on each harvest, regardless of what the intention of the mortgagee may be or might have been. Reliance placed on Abdul Haq's case (1999 SCM R 2531).
9. Section 28 of the Limitation Act, 1908, has been declared as repugnant to injunctions of Islam by the Shariat Appellate Bench of the Hon'ble Supreme Court in Maqbool Ahmad's case (1991 SCM R 2063). According to section 28 ibid, on expiry of period prescribed by law for a suit for possession of any property, the right of owner was to be extinguished. After omission of such penal provision of law, not by simple legislation, but after having been declared as repugnant to injunctions of Islam, no interpretation of any provision of statute can be adopted which may reintroduce the spirit of section 28 of the Limitation Act, afresh. It was not merely the wording of section 28, rather, the consequences ensuing therefrom, which were offending the Islamic injunctions, due to which it was declared repugnant to injunctions of Islam. If one is allowed to take shelter under Article 148 of the Limitation Act, 1908, he may not be dispossessed from a mortgaged land for an indefinite period.
The basic concept and logic of the declaration of section 28 of the ibid Act, to be repugnant to the injunctions of Islam is that no lawful owner can be deprived of his right, merely by efflux of F time nor a person enjoying possession for such a long period, can be rewarded with premium of ownership. The mortgagee enjoying the possession of mortgaged property for 60 years or more recovers manifold through its usufruct, more than his mortgage money and cannot additionally be bestowed with the ownership of the property, as well, on expiry of 60 years,
10. It seems illogical that after declaration of section 28 of the Limitation Act, as repugnant to injunctions of Islam, the real lawful owner should be deprived of his right of redemption and possession, G merely, for the reason that Article 14& of the Limitation Act, is still in field, which does not provide any corresponding penal-clause. It is well known principle of justice, that laws are for the welfare of the people and not to usurp their rights. It is a well celebrated Latin idiom: Salus Populi est superma lex: The welfare of people is supreme law. If the analogy advanced by respondent followed, it would lead to absurd and complex consequences. The mortgaged property would be put in 'limbo. On one hand a lawful owner would not be able to recover its possession by redemption, while, the mortgagee also cannot become owner thereof, on the other. Such interpretation of law cannot be attributed to the intention of legislature, by any means. In presence of Article 148 of the ibid Act, above quoted anomalous situation shall subsist, for removal of j which, legislature is well advised to take positive steps at the earliest which is inevitable to take the masses out of this quagmire. However till the required corresponding legislation, instead of blindly following Article 148 of the Limitation Act, Courts will have to follow the logic behind the declaration of section 28 as repugnant to Injunctions of Islam by the Shariat Appellate' Bench of the Hon'ble Supreme Court in Maqbool Ahmad's case (supra), ratio of which is based on basic sources of Islamic law: the Qur'an and Hadith being the Divine law. By virtue of Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973, K the Courts are to follow the laws, enshrined in Sharia and adopt the interpretations compatible to Islamic injunctions. Whenever there is a conflict between the law of Sharia and the Codified law, the former shall L prevail? When a lawful owner cannot be divested of his right of ownership after declaration of section 28 of the Limitation Act, 1908, as repugnant to injunctions of Islam, he cannot be stripped of ancillary right of redemption and possession, flowing out of his ownership. The concept which has been declared un-Islamic and as such cannot be invoked directly may not and should not be poked indirectly, by declining the redemption with possession to a lawful owner. It would certainly create a room to defeat the ratio of Maqbool Ahmad's case.
11. In Maqbool Ahmad's case, Article 144 along with section 28 of the Limitation Act, 1908, was challenged, but only section 28 of the ibid Act, was declared repugnant to injunctions of Islam by Shariat Appellate Bench of the Supreme Court. However, later on, Article 144 of the ibid Act, was also omitted along with section 28, through Limitation (Amendment) Act, 1995 (Act II of 1995). The bill was initiated in Senate and was referred to Select Committee for deliberation. After lengthy discourse and due deliberation about pros and cons of Article 144 of the Limitation Act, its omission was also proposed by the Select Committee of Senate, which was, later, approved by both the Houses of the Parliament, and accordingly, assent was accorded by the President on 12th October, 1995. Essence of both the Articles 144 and 148 of the Limitation Act, in their application, is the same which had their utility in presence of section 28 of the Limitation Act. After omission of section 28, there was confusion that a person sitting in adverse possession cannot become owner, but bar of limitation, against the real owner still subsisted by virtue of Article 144. This anomaly has been removed by the Legislature by omission of Article 144. But same anomalous situation still remains in field for, a mortgagor due to existence of Article 148 of the ibid Act, which requires to be treated alike. It is highly unrealistic and unconvincing that a person who enters in property with mutual understanding and conscious concurrence of the parties, as a mortgagee, without fixing a specific time, may not be evicted after 60 years, despite the fact that he cannot be granted a decree of prescription, after omission of section 28 of the ibid Act. This was the driving force which constrained the Parliament to undo Article 144 along with section 28 of the ibid Act. But unfortunately Article 148 has not been taken notice of, which in legal parlance, is at par with. Article 144 of the Limitation Act, which also requires its omission from the Statute.
12. The learned Appellate Court has properly appreciated the evidence and material on record and has reached to a just and proper conclusion by decreeing the suit in favor of the respondents- plaintiffs. There is no misreading or non-reading of evidence, nor any illegality or material irregularity, has been pointed out by learned counsel for petitioner, which may warrant interference of this Court, in its provisional jurisdiction. Resultantly, this revision is dismissed; Parties are left to bear their own costs.
13. A copy of this judgment be sent to the Law, Justice and Parliamentary Affairs Division, Islamabad.