' IKRAMULLAH KHAN, J.---Through the instant revision petition, the petitioners has challenged the judgment and order dated 29-1-2005 passed by the learned Additional District Judge-III, Swabi, whereby the appeal of petitioners against the judgment and order dated 12-11-1986 passed by Civil Judge, Swabi had been dismissed.
2. The precise but relevant facts are that, petitioners instituted a suit for possession, through redemption of suit land bearing Khata/ Khatoni No, 833/1260, Khasra No, 6525/1975-1976 etc. Measuring 6 kanals situated in Moza Zaida Tehsil and District Swabi, as per Fard-iJamabandi for the year 1977/1978.
3. The petitioners claim as per the contents of the pleading thereof was, that petitioners are owners to the extent of 6 kanals in the disputed number Khasra, which had been purchased by their father Yaqoob Khan from one Mst. Badrai daughter of Mir Azim Khan while the possession of the suit land is with respondents being mortgagee of the suit land.
4. The respondents in their written statement has denied of the ownership of petitioners in the suit land, and alleged thereof that they are original owners in the suit land to the extent of their ancestral shares, being co-owners, however raised thereof in their pleading that, petitioners had not challenged therein their plaint the original mutation of mortgage bearing No, 4464 attested on 14-12-1922, while the mutation No, 3710 attested on 27-11-1942 is a mutation for correction, commonly known is mutation of 'Sehat intiqal' in the terminology of Patwar, whereby asserted the plea of limitation.
5. The learned trial Court framed as much as 12 issues out of the divergent pleadings of the parties and, on conclusion of trial the suit of the petitioners was dismissed on 12-11-1986. An, appeal was preferred against the afore-stated judgment of the learned Civil Judge, Swabi, before. The District Judge, Swabi, which was also dismissed by the learned Additional District Judge vide his judgment dated 20-12-1987.
6. This Court vide its judgment and order dated 6-4-1994 passed in Civil Revision No, 141 of 1988, set aside the impugned judgment passed by the lower appellate Court and case was remanded back to the District Judge, with direction to decide the case in accordance with law and an elaborate judgment in this regard discussing all the issues framed thereunder in the suit be answered and thereupon the appeal be decided. On receiving back the record the learned Additional District Judge-III, Swabi through its impugned judgment of the even date, dismissed the appeal once again, however all the issues framed thereunder in the suit was fully discussed, hence the instant civil revision before this Court.
7. The learned counsel for the petitioners contended that the impugned judgment passed by the learned Additional District Judge is extraneous, fallacious, capricious; arbitrary resulted in gross illegality and irregularity, which has patently made the impugned judgment that of misreading and non-reading of evidence.
8. Further contended that, the Mutation No, 3710 dated 24-3-1942 was not such kind of mutation, which could be termed as a mutation for correction of any error occurred thereof in the Revenue Record of the then times, but it was an affirmation of the mortgage made by two sisters, being women folk, in favour of one Muhammad Amin in that regard, and as such the finding on issue No, 8 by the learned lower appellate Court is erroneous one, that the petitioners were not required to challenge the Mutation No, 4464 dated 14-12-1922, as they had no concern of whatsoever kind with the said mutation, and the lower appellate Court, illegally had while giving finding on issue No, 2, that the suit of the petitioners is time barred, as the period for redemption of the suit property shall be reckoned from the attestation of Mutation No, 3710 dated 24-3-1942, and not from mutation No, 4464 dated 14-12-1922; that for the sake of argument, if the date of Mutation No, 4464 has to be considered for the purpose of limitation, even then, the suit of the petitioners could not be termed as time barred in light of the provision of Limitation Act, 1908 contained thereunder subsection (2) of section 20; that the respondents are usufructuary mortgagee being in continuous possession of the suit land, received and receiving the produce, interest there from the mortgaged suit land, and as such every receipt of such interest, produce of the mortgaged property, given fresh cause of action to the petitioners, irrespective of the period of limitation, envisaged thereunder Article 148 of the Limitation Act, 1908, that though the petitioners at the time of institution of suit were owners to the extent of 2 kanals in the suit property but later on, on the death of their father Yaqoob Khan, petitioners being the sole legal heirs, had become owners to the extent of 5 kanals and 19.5/4 marlas in the suit land, but as redemption rights are not indivisible therefore, petitioners applied thereto for the redemption of the whole property.
9. On the other hand, the learned counsel for the respondents argued that no any patent illegality or irregularity has been made out by the petitioners in the impugned judgment, as such supported the impugned judgment, further raised the objection, that as the petitioners had not taken the plea of section 20 of the Limitation Act, 1908, in the lower fora, could not be permitted to agitate a fresh plea before this Court in revision petition; that the original mutation has not been challenged by the petitioners are estopped by their conduct and no effective decree could be passed in their favour; that as per Article 148 of the Limitation Act, 1908, the period, provided thereunder for redemption of mortgage is 60 years, whereof the petitioners has instituted the suit beyond the prescribed period of limitation, forfeited their right if any due to implication of law and respondents rights have been matured and as such have become owner of the disputed suit land.
10. Arguments advanced at the .Bar by both the learned counsel for the parties were heard with patience and record was scrupulously, carefully gone through but with the assistance of both the learned counsel.
11. Prior to combat with the legal proposition raised by both the learned counsel herein, intend to give reference to various mutation effected thereof in regard to the disputed Khasra number/the suit land since the year 1922, which had been made controversial by both the parties in their pleadings, and without discussing these various kind of transfers of rights in the suit land, the controversy could not be easily resolved.
12. One Mir Ahmad son of Muhammad Khan, vide mutation No, 4464 attested on 14-12-1922, had effected a mortgage in Khasra No, 4867/1207 to the extent of 6 kanals 11/2 marlas out of the total measurement of 72 kanals, 18 marlas for a consideration of Rs,300 in favour of one Sher Khan son of Saeed Khan.
13. The legacy of deceased Sher Khan was devolved on two daughters and in this respect inheritance mutation dated 19-9-1934, was attested in favour of one Mst. Zarmina and her sister Gul Shera in equal shares.
14. On 2-12-1940, one Muhammad Amin made a report to the then revenue official, that he had mortgaged a piece of land measuring 5 kanals 41/2 marlas from two ladies Mst. Zarmania and Gul Shera sisters intersee in the suit land.
15. A formal mutation was entered on this report in favour of one Muhammad Amin but for the purpose of confirmation, being Parda observing ladies, the revenue officer appointed a Commission for the confirmation and attestation of the Mutation No, 3710 already incorporated.
16. This order of appointment of Commission was made on 11-12-1940, one Niaz Muhammad, was appointed as a Commissioner to inquire there from the ladies, in regard to the proposed mortgage property, he on confirmation the fact of mortgage from the ladies, gave back his report to the concern revenue official on 14-11-1941 and after satisfaction, that the report in regard to making of the mortgage was true, the said Mutation No, 3710 was attested on 24-3-1941.
17. Muhammad Amin, the mortgagee, transferred his right of mortgage over the mortgaged property to one Subaidar Qalandar Khan vide mortgage Mutation No, 4096 on 24-11-1942 in the suit land to the extent of 5 kanals and 41/2 marlas. The right in the same mortgaged property as acquired by Subaidar Qalandar was further transferred to one Sher Afzal vide mutation No, 4688 attested on 4-4-1946.
18. The said Sher Afzal further transferred the same right in the mortgaged property along with his other land, collectively as 10 kanals and 151/2 Marlas to the respondents vide Mutation No, 8380 attested on 25-6-1956.
19. As afore-stated mutations were in regard to mortgage rights and the ownership was at that time remained with the afore-stated ladies, they sold the ownership of the suit land to one Muhammad Khursheed, along with their other landed property vide Mutation No, 7332 dated 9-3- 1952. In the suit land, the proprietary rights were 5 kanals 12 Marlas.
20. Muhammad Khursheed sold his right of ownership in regard to the suit land to one Mst. Badro daughter of Saeed Azim vide Mutation No,8812 dated 26-2-1958, the same suit land which was under mortgage, with the respondents.
21. Mst. Badro, in return sold her right of ownership over the mortgaged suit land to one Yaqoob or Yaqoot late father of petitioners vide Mutation No, 8996 dated 12-12-1958 and the said Yagoob in his life time transferred a land measuring 2 kanals out of his purchased property 5 kanals 19.5/9 marlas to the petitioners vide Mutation No, 11620 dated 6-8-1965.
22. The petitioners thereupon instituted the suit for possession through redemption of mortgage against the respondents on 10-12-1983.
23. At this juncture, it would be not out of context to mention herein, that the suit land, bearing Khasra No, 6525/1975-1976 etc. Is composed of as per Revenue Record is 107 kanals 17 marlas, which is under the possession of various owners and mortgagees, under interse settlement on the spot, however, in the Revenue Record, the said Khasra number is still shown as joint one.
24. Respondents are not only in possession of the land mortgaged by them from one Sher Afzal Khan, but as per record, they are in possession of other ancestral land devolved upon them through inheritance.
25. The land purchased by the father of the petitioners in the joint property comprising in the disputed number Khasra divulged from record is 5 kanals and 19.5/9 Marlas or approximately 6 kanals.
26. Both the lower learned Court has non-suited the petitioners on two main grounds one of limitation and other of non-challenging of Mutation No, 4464 dated 14-12-1922.
27. The record reveals as discussed hereinabove, that the mortgaged land, to the extent of 6 kanals, part of Khasra No, 6525 is under the possession of the respondents being usufructuary mortgagee thereof, and the same mortgaged land, along with some other land in the same disputed Khasra number had been mortgaged to respondents by one Sher Afzal Khan vide Mutation No, 8380, who obtained these mortgagee rights from one Qalandar vide Mutation No, 4688, who acquired the rights of possession from one Muhammad Amin vide Mutation No, 4096, and Muhammad Amin was the first person, who mortgaged the land to the extent of 5 kanals 4-1/2 marlas from Mst. Zarmania etc vide Mutation No, 3710 attested on 24-3-1941.
28. The same mortgaged land to the extent of 5 kanals and 4-1/2 marlas was sold by Mst. Romania etc. To Muhammad Khursheed, and lastly came in the ownership of petitioners but to the extent of 5 kanals 9.5/9 marlas more than 5.5/9 marlas of the mortgaged land, due to the reasons that Muhammad Khursheed was already a co-owners in the joint property.
29. The land mortgaged by one Mir Ahmad to one Sher Khan vide Mutation No, 4464 dated 14-12- 1922, has no concern with the suit land as it was comprised therein Khasra No, 4867/1207 and not in respect of the suit land. As such the period of limitation in regard to redemption of the suit property would be reckoned from the first deed of mortgage bearing No, 3710 dated 24-3-1941 as being the transaction of mortgage B in regard to Khasra No, 6526. As the petitioners have instituted the instant suit in the year 1983, it is well with in time as per Article 148 of the Limitation Act, 1908.
30. It is also admitted fact on record, that respondents are usufructuary mortgagee of the land and even if the date of mortgage Mutations No, 4464 dated 14-12-1922, is to be considered, is the date when for the first time a charge was created on the Wit land, even then, respondents could not be accepted as owners of the land in view of the judgment of the Apex Court passed in case of Maqbool Ahmad v. Hakoomat-e-Pakistan reported as 1991 SCM R 2063. Respondents never succeeded in a decree for foreclosure or sale as provided thereunder the provisions of section 67 of the Transfer of Property Act, 1882, before the target date i,e, 31-8-1991, in this regard and thereafter no decree could be passed in favour of any person, who claims to have acquired the right of ownership through prescription or implication of law, being such kind of right declared against the injunction of Islam, as both Article 114 and section 28 of the Limitation Act, 1908, were declared Un-Islamic and both the aforementioned provisions of law are not part and parcel of the statute book after 31-8-1991.
31. However, Article 148 of the Limitation Act, 1908 is still as good law as it was and it is still part and parcel of the statue book, and it shall be given effect to but when there lies, some exceptions in the Limitation Act, 1908, itself, then, Article 148 shall be read in conjunction with other provisions of Limitation Act, 1908, and not in-derogation of other provisions contained thereunder the Limitation Act, 1908.
32. As the subject matter in hand, which has been admitted fact and deducible from the plain reading of evidence and revenue papers, brought on record that the mortgagee/respondents are usufructuary mortgagee and the mortgage is a usufructuary one, meaning thereby that the suit land is in the possession of the respondents and they are receiving all its interest, benefit of whatsoever kind, such a situation may, be Judged in view of the provisions of subsection (2) of section 20 of the Limitation Act, 1908, that what would be the effect of such kind of usufructuary mortgage as insofar as the period of limitation provided thereunder the provision of Article 148 of the Limitation Act, 1908.
33. Section 20 of the Limitation Act, 1908, when is reproduced, would be as:-- Section 20 Limitation Act, 1908. Effect of paym ent on account of debt or of interest on legacy....(1)
Where paym ent 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 acknowledgment 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).
34. A perusal of the above quoted provisions in general and its subsection (2) in particular, has made it quite clear in unequivocal term that when the mortgagee is in possession of the mortgaged property and receives the usufructs, shall be deemed to be a payment of the mortgage money but its acknowledgment as well and thus a fresh period of limitation shall be computed from time when such payment was made. This legal aspect of the case finds lucid expression in the judgment rendered in case of Muhammad Iqbal and 17 others v. Ghaunsullah Khan and 17 others (2002 CLC 1533) relevant paragraph whereof as under:-- "Where mortgagee was in possession of the mortgage property and was in receipt of the usufructs, such receipt would be considered as an acknowledgment of mortgage and would be counted towards the payment of mortgage money within the terms of section 20(2) of the Limitation Act, 1908, and every such receipt would give rise to a fresh period of limitation, when the mortgage was usufruetuary in nature, the question of extinguishments of title of the mortgagor and perfection of the title of the mortgagee through prescription would not arise."
35. This Court in the case of Baidullah Jan v. Hawas Khan (PLD 2002 Peshawar. 92) has held a similar view. The author of both the above cited judgments was his lordship Mr. Justice Ijaz Afzal Khan.
36. In case of Abdul Haq v. Ali Akbar (1998 CLC 129) this Court held that:-- "Where mortgaged land is in possession of the mortgagee, the receipt of the rent or produce of such land under section 20(2) of the Limitation Act, 1908, is deemed to be a payment on account of debt or of interest under section 20(1) of the Act and amounts to an acknowledgment, giving fresh time of limitation provided such receipt of rent or produce is before the expiration of prescribed period of limitation".
' In case of Nawaz Ali Jan v. Nawabzada and others (PLD 2003 SC 425) it was held as:-- "We are inclined to hold that as predecessor-in-interest of the appellants by acquiring the mortgage rights from Abbas Khan on 2nd March, 1962 has entered into a fresh agreement with the mortgagor, i,e, predecessor-in-interest of the respondents, therefore, from the date of acquiring of such right till expiry of the period of 60-years under Article 148 of the Limitation Act, 1908, the appellants cannot claim themselves to be the owner of the land by prescription according to section 28 of the Limitation Act, 1908."
37. As, the respondents have acquired the right of the previous mortgage in regard to the mortgaged land, vide Mutation No, 8380 from one Sher Afzal the predecessor in interest on the attestation of the mutation on 25-6-1956, could not be allowed to raise the plea of limitation as provided there under Article 148 of the Limitation Act, 1908, as the petitioners would be debarred to file a suit for the purpose after 60-years, which shall be reckoned from 25-6-1956, when the last mutation in regard to acquiring right of mortgage was attested.
38. The apex Court in case of "Abdul Haq v. Ali Akbar" (1999 SCM R 2531) delivered thereof, in C.P.L.A.
No, 1324 of 1997 filed thereof against the judgment of this Court reported as 1998 CLC 129 reterred supra herein and in the concluding paragraph held as under:-- "We are in complete agreement with the conclusions arrived at by the learned single Judge that;-[There were no reasons to why this also should not be interpreted as novation of contract because in addition to additional charge, the old mortgagee including Abdul Haq petitioners were ousted and thereafter, a new mortgagee was created in their favour".
39. The facts of this case are not different form the facts of the above mentioned cases, except that in the instant case, the suit was for possession through redemption of mortgage, while in the above cited cases, the mortgagee filed suit for declaration on account of lapse of 60-years, without redeeming the mortgage by mortgagor.
40. The principle of law, enunciated in the above mentioned cases are fully attracted to and are well applicable je the present circumstances and facts of the instant case.
41. The period of limitation in such like situation shall be reckoned from the last transfer of the right of the mortgagee and not from the first creation of the usufructuary mortgage, over the mortgaged property as, every new acquisition of right in the mortgaged property is an acknowledgment of liability in respect of the mortgaged property, however it is not required nor it is the requirement of the provisions of section 20(2) of the Limitation Act, 1908, that such acknowledgment be signed by the mortgagor or any other person on his behalf, for the sole reason that the provisions of subsection (2) of the section 20 of Limitation Act, 1908, is an exception to section 19 or subsection (1) of section 20, when read in juxta position to the above two sections of law in this regard.
42. As Muhammad Amin was mortgagee in the suit property to the extent of 5 kanals 4-1/2 Marlas, and respondents had purchased only such right of the previous mortgagees; therefore; petitioners could not claim more than what has been come into the possession of respondents from the previous mortgagees, which were dully incorporated in Mutation No, 3710 attested on 24-3-1941.
43. The petitioners may seek their remedy in regard to other land if any in competent Court of law in this regard.
44. For the reasons given hereinabove, this civil revision is allowed and impugned judgments of both the lower Courts are accordingly set aside as a result thereof, the suit of the petitioners is decreed to the extent of 5 kanals 41/2 marlas in the disputed Khasra No, 6525/19751976 out of 107 kanals 17 marlas; however, if a particular portion of the land out of the joint property is not feasible to be delivered to the petitioners on account of the reasons that respondents have other shares too in the joint property and are in possession thereof apart from the suit property and if the said Khasra No, is still joint, then, the petitioners would be at liberty to institution suit for partition in regard to their shares, decreed herein through this judgment before the competent Court of law.
The petitioners shall deposit if not already deposited the mortgage consideration in the trial Court right now from the date of announcement of this judgment positively within a month. No order is to costs.