1. QAISER RASHID KHAN, J.--- Through this revision petition, the petitioners have called in question the judgments and decrees of the learned Civil Judge-II Swabi dated 15-11-2010 and that of the learned Additional District Judge-IV Swabi dated 27-4-2011, whereby their suit for possession through redemption was concurrently dismissed.
2. 2.Brief but relevant facts leading to the instant petition are that Hakeem Khan etc., petitioners/plaintiffs instituted a suit, which was later on amended claiming possession through redemption of land measuring 177 kanals 18 marlas bearing khasra and khata numbers fully described in the heading of plaint, situated in the Revenue Estate of Mouza Kotha, District Swabi vide record of rights/register of jamabandi for the year 1999-2000. It has been averred in the plaint that the predecessor-in-interest of the petitioners and of the defendants Nos.75 to 123 (respondents herein), had redeemed the suit land about 40 years ago, but due to some domestic need the plaintiffs needed money and they again mortgaged the suit property with the predecessor-in-interest of defendants No.1 to 74 (respondents herein) in lieu of a sum of Rs.6000/- but redemption had not been given effect to in the Revenue Record and the same entries of mortgage still exist in the name of predecessor-in-interest of defendants Nos.1 to 74 (respondents herein). Further averred that if during the period of mortgage the defendants Nos.1 to 74 had made any construction, plantation of trees or improvement in the suit property, then in the absence of any agreement they are not entitled to such costs and moreover, if the defendants had further mortgaged the suit property, for higher amount, then the plaintiffs are not bound to make payment of the said amount over and above Rs.6000/- for which the property was initially mortgaged. On being summoned the respondents/defendants filed their written statements rebutting the allegations in the plaint. From the antagonistic pleadings of the parties, the learned trial Court framed the following 13 issues:--- (1)Whether the plaintiffs have got any cause of action?
3. (2)Whether the suit of plaintiffs is within time?
4. (3)Whether the defendants Nos.55, 66, 68, 70 are owners in possession of the suit property due to time-barred mortgage?
5. (4)Whether the plaintiffs are estopped to sue?
6. (5)Whether the suit is bad for non-joinder and misjoinder of parties?
7. (6)Whether the defendants Nos.13, 16-21, 50, 51, 53 have made improvements of millions of rupees in the suit-land?
8. (7)Whether the defendants Nos.120-122 also want to redeem their share of property on payment of mortgage money of Rs.6000/-?
9. (8)Whether the legal heirs of Adam etc are owners in possession of the suit property on the basis of time barred mortgage?
10. (9)Whether the suit of the plaintiff is based on mala fide and has been filed for harassment of the defendants and in case of dismissal whether the defendants are entitled to compensatory costs under section 35-A of C.P.C.?
11. (10)Whether defendants Nos.92-95, 105-107 and 119 are owners in possession of their share of property, which is free from any mortgage?
12. (11)Whether the plaintiffs and defendants Nos.75-123 the mortgagor and defendants Nos.1-74 are the mortgagee of the suit property?
13. (12)Whether plaintiffs are entitled to the decree as prayed for?
14. (13)Relief.
15. 3.After recording the respective evidence of the parties, the learned trial Court dismissed the suit of the plaintiffs and appeal preferred thereagainst also met the same fate. Hence the present petition.
16. 4.Learned counsel for the petitioners argued at considerable length touching various aspects of the case. He contended that the suit of the petitioners has been wrongly held by the courts below to be time-barred. In this respect, he argued that though the suit property was initially mortgaged with the predecessor-in-interest of the contesting respondents way back in the year 1885, but the same was subsequently redeemed and then 40 years prior to the institution of the suit, was re- mortgaged by the plaintiffs for a consideration of a sum of Rs.6000/- with the predecessor-in- interest of the contesting respondents, but due to mistake or omission, the redemption could not be given effect in the revenue record, though after redemption and re-mortgage, the possession was duly handed over to the respondents. He vociferously contended that both the courts below kept out of consideration the explicit provisions of sections 19 and 20 of the Limitation Act, whereby another period of limitation of 60 years commenced, once the property was redeemed and re- mortgaged with the predecessors-in-interest of the contesting respondents and that too, in view of the fact that the defendants mortgagees enjoyed the produce of land in consideration of debt and the part payment of debt granted a new period of limitation under section 20 of the Limitation Act to the petitioners. He urged that once the old mortgage was redeemed and a new mortgage was created in the suit property for a sum of Rs.6000/- then for all legal intents and purposes the suit of the petitioners was well within time, but the petitioners have been knocked out by both the courts below on technical grounds in total disregard to the record of the case.
17. 5.Learned counsel for the contesting respondents on his turn vehemently defended the impugned findings of both the courts below and stated that the petitioners were unable to prove their case and moreover, the property has continued to remain in possession of the contesting respondents for the last over one century and it was at the time of the institution of the suit in the year 2006 when the petitioners/plaintiffs and the pro forma respondents for the first time asserted their claim over the suit property, which was hopelessly time-barred.
18. 6.Arguments heard and available record perused.
19. 7.As obvious from the contents of the suit followed by the amended suit, the petitioners/plaintiffs asserted their claim over the suit property being its owners and alleging to have mortgaged the same in favour of the contesting respondents about 40 years ago after redeeming the same, as initially the same was mortgaged in favour of their predecessor-in-interest. The mortgage consideration was stated to be Rs.6000/- Their contention in the plaint is that the redemption having taken place 40 years prior to the institution of the suit has not been given effect in the revenue record and that the mortgage entries still exist and subsist in the name of the predecessor-in-interest of the said respondents. During the course of trial, Patwari Halqa Kotha appeared as P.W.1, who produced the current jamabandi of the suit land as Exh.P.W.1/1, goshwara malkiat as Exh.P.W.1/2, goshwara mortgages as Exh.P.W.1/3, Khasra Girdawari from Kharif 2000 to Rabi 2005 as Exh.P.W.1/4, Khasra Girdawari regarding Khasra Nos.5988, 5989, 6514, 6842, 378, 466, 2571 as Ex.P.W.1/5, Goshwara of possession in respect of the suit land as Exh.P.W.1/6, Jamabandi for the year 1999-2000 Exh.P.W.1/7, Khasra Girdawari from Kharif 2000 to Rabi 2006 Exh.P.W.1/8. ADK Swabi was examined as P.W.2 who produced jamabandi for the year 1999-2000 Exh.P.W.2/1, misl-e- haqiat for the year 1956-57 to 1994/1995, as Exh.P.W.2/2 to Exh.P.W.2/8, Jamabandis for the year 1978-79 Exh.P.W.2/9, for 1956-57 Exh.P.W.2/10, 1942-43 Exh.P.W.2/11, 1933-34, Exh.P.W.2/12, 1931-32 Exh.PW2/13, 1927-28 Exh.PW2/14, 1895-96 Exh.PW2/15, 1870 Exh.PW2/16, pedigree table 1870 to 1927-28 Exh.PW2/17 and Exh.PW2/18 respectively, goshwara mortgagees in respect of the suit land for the year 1999-2000 Exh.P.W.2/19. During cross-examination he frankly stated that the suit property has remained mortgaged since the year 1870 and no redemption mutation is available in his record.
20. 8.The petitioner namely Hakim Khan recorded his statement as P.W.3 for himself as well as attorney for the other plaintiffs. As against the plaint, wherein the plaintiff alleged that after the property was redeemed by the predecessor-in-interest of the petitioners from the respondents about 40 years back the same was re-mortgaged by the petitioners in favour of the predecessor-in-interest of the contesting respondents for a sum of Rs.6000/-, in the examination-in-chief the petitioner namely Hakim Khan stated that the property was re-mortgaged by his predecessor-in-interest for the same very amount. During cross-examination, he admitted as correct that the suit property has remained mortgaged since 1870 and then self stated that it was redeemed by his father 40/45 years back and was again mortgaged in consideration of Rs.6000.00. He also stated that his father had died in the year 1952. Given the recording of the statement of Hakim Khan on 7-12-2010, and the alleged date of re-mortgage 40 years prior to that, then it was somewhere in the early seventies that the alleged re-mortgage of the property must have taken place, but the same stands absolutely belied when the father of the petitioner had died in the year 1952 i.e. 58 years prior to the recording of the said statement by the petitioner. He further replied that no documentary evidence is available with him and that he was not present at the time of redemption. He also went on to admit that the mortgagees had continued to be in possession of the suit property since 1870.
21. 9.P.W.4 namely Afriday also stated in his examination-in-chief that the suit property was verbally redeemed by the predecessor-in-interest of the petitioners/plaintiffs from the respondents and re- mortgaged the same for a sum of Rs.6000/- with them about 40 years back. During cross examination, the said P.W. claimed to be about 100 years old, but in reply to a question that the predecessor-in-interest of the petitioner had died 43 years ago contradicted the statement of P.W.3 as far as the date of death of his father in the year 1952 is concerned. He claimed to be present at the time of the redemption, but had not seen the suit property himself.
22. 10.Conversely D.W.1 namely Sahibzada Muhammad Zaman and D.W.2 namely Azim Khan recorded their statements as defendants as well as special attorneys for the other defendants. D.W.2 held on to the stance that the suit was mortgaged with their predecessor-in-interest in the year 1870 and had continued to remain in their possession to-date and no redemption of the same had ever taken place. The statements of Patwari Halqa and ADK testify the fact about the continuous mortgage of the suit property with the contesting respondents and not even an oblique reference is available in the entire revenue record in respect of the redemption of the suit property as alleged by the petitioners/ plaintiffs. On the other hand the same has been shown to be in possession of the respondents/defendants as mortgagees since 1870 todate. Barring the allegation in the plaint and oral assertion which too, was found to be contradictory, no documentary evidence has been brought forth to lend a degree of credence to the payment of the mortgage money to the defendants/mortagees or for that matter its further re-mortgage in their favour which allegedly took place 40 years prior to the institution of the suit. On the other hand the revenue record confirmed the entries in the name of the contesting respondents for years long. In this regard Article 148 of the Limitation Act, 1908 provides for a period of 60 years for a suit for redemption of mortgage. However, in the present case, the suit was instituted against the contesting respondents in the year 2005 i.e. after over 100 years of the mortgage of the property in favour of their predecessor-in-interest. In such situation, the petitioners are debarred to seek decree for possession through redemption and were rightly non-suited by both the courts below. In this respect reliance can be advantageously placed on Kata Mir and others v. Mst. Sho Begum and others (2003 SCMR 589), Baidullah Jan and another v. Aurangzeb and another (PLD 2010 Peshawar 96), Shafi Muhammad and others v. Khanzada Gul and others (2007 SCMR 368), Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others (PLD 1991 SC 524) Din Muhammad and 5 others v. Ghulam Wahid and 3 others 1995 SCMR 675 (appellate jurisdiction), Ghazi Marjan and others v. Alam Gul and others PLD 2009 Pesh. 83 and Abdul Haq v. Ali Akbar and others (1994 SCMR 2531).
23. 11.From the available facts and circumstances of the case the learned counsel for the petitioners has not been able to point out any illegality, material irregularity, misreading or non-reading of evidence in the impugned findings of both the courts below calling for interference through the instant petition.
24. 12.Even otherwise the concurrent findings of the learned courts below cannot be set at naught by the revisional court, unless it is proved through the tangible evidence that the same are patently illegal, based on misreading, non-reading of evidence, erroneous, fanciful or has resulted into great mis--carriage of justice in view of the dicta handed down by the honourable Apex Court in the case-law reported as Nazir Ahmed through L.Rs. v. Umra and others (2002 SCMR 1114) and Shafi Muhammad and others v. Khanzada Gul and others (2007 SCMR 368).
25. Consequently, the revision petition is dismissed with no order as to costs.