IKRAMULLAH Petitioners have called in question the judgments and. Decrees of learned Civil Judge, Lakki Marwat dated 16.04.2011 and that of Learned. District Judge, Lakki Marwat, dated 10.09.2011, whereby suit of petitioners/plaintiffs was concurrently dismissed.
2. Brief facts leading to filing of instant petition are that petitioners/plaintiffs alongwith pro-forma respondents/defendants are owners/mortgagors of the suit land whereas real respondents/defendants are mortgages of the said land. On 29.6.2009 the petitioners/plaintiffs filed a suit for redemption of mortgage regarding suit land bearing Khata No,346 Khasra Nos.1270, 1330, 1275, 1328 and 1329 measuring 79 kanals 05 Marlas situated in Mouza Ahmad Khel, Tehsil and District Lakki Marwat at mortgage amount of Rs,68/25.
3. Respondents/defendants were summoned however, only respondents Nos.1 to 7 contested the suit by submitting written statement, wherein they raised various legal as well as factual objections. From the divergent pleading of the parties as many as seven issues including relief were framed. Both the parties produced pro and contra evidence in support of their respective stance. Learned trial Court after hearing arguments of the learned counsel for both the parties dismissed the suit of the petitioners/ plaintiffs on 16.04.2011 The petitioners/ plaintiffs being aggrieved, preferred appeal before the court of learned District Judge, Lakki Marwat, but the same was dismissed vide impugned judgment and decree dated 10.09.2011, hence, the instant revision petition.
4. Learned counsel for petitioners contended that the impugned judgment is against law and facts on record; that the mortgage was usufructuary in nature and the respondents/mortgagee were in possession of the mortgaged property and were in receipt of the usufruct, which would be considered as an acknowledgment of mortgage and would be counted to wards the payment of mortgage money within the meaning of section 20(2) of the Limitation Act, 1908 and every such receipt of the usufruct by the respondent, therefrom the mortgaged property give fresh cause of action for the purpose of period of limitation, as envisaged thereunder Article 148 of the Limitation Act, 1908, but both the learned courts below have misread and misinterpreted the law in this regard, fell in error of law have occasioned gross miscarriage of justice.
5. On the other hand, learned counsel for the contesting respondents made submissions that the suit property had mortgaged somewhere in the years 2003 and 2004 and after the expiration of 60 years the mortgagees/respondents have become owners and the title of the mortgagors/petitioners had stood extinguished, therefore, the mortgagors/petitioners had no right whatsoever, to institute the suit, beyond the prescribed period of limitation as envisaged thereunder Article 148 of the Limitation Act, 1908; further contended that the petitioners had not made party some of the respondent in appeal, could not file revision petition against those respondents who were not made party to the appeal and against them, the judgment/decree rendered by learned court has become final, supported the impugned judgment.
6. I have heard learned counsel for the parties and have given my anxious consideration thereto in light of law and facts on record.
7. The contention of learned counsel for respondents that the expiration of the period of 60 years provided thereunder Article 148 of the Limitation Act, 1908 since the creation of the mortgage had perfected the title of the mortgages/ respondents through prescription and that the rights of the petitioners/mortgagors to redeem the suit property had extinguished is not conceivable unless a competent court of law in this regard had passed a decree, in favor of respondents.
8. The contention of the learned counsel for petitioners that after deletion of section 28 of the Limitation Act a suit in view of section 60 of the Transfer of Property Act, 1882 can be decreed even after the expiry of the prescribed period of limitation as provided thereunder Article 148 of the Limitation Act, 1908 could not be repelled because right to recover the possession of a property thereafter declaring the provisions of section 28 of the Limitation Act, 1908 by the Hon'ble Supreme Court of Pakistan in case titled " Maqbool Ahrnad v. Govt: of Pakistan "(1991 SCMR 2063) could not be extinguished on one hand while on the other hand, on account of acknowledgment of the mortgage, on receipt of the usufruct by the mortgagee therefrom the mortgaged property, give a fresh period of limitation, to the mortgagor in view of the provision contained in section 20(2) of the Limitation Act, 1908, which reads as: 20(2) 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 for the purpose of subsection (1).
' While subsection (1) of section 20 of the Act ibid reads as: ' 20(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 completed from the time when the payment was made, provided that an acknowledgment of the payment appears in hand writing of or in a writing signed by, the person making the payment.
9. So in case, when the mortgagee is in possession of such property and receive the usufruct, the same is deemed not only the payment of the mortgage money but it is an acknowledgment as well and receipt of every such usufruct give a fresh cause of action on each successive harvest for the purpose of computation of period of limitation as provided thereunder Article 148 of the Limitation Act, 1908.
10 In case titled "Ahmad Khan and others v. Abdur Rehman and others (2009 SCMR 191) the Apex Court is held as: "Even otherwise, in a usufructuary mortgage where mortgaged land is in the possession of the mortgagee, the receipt of the produce of such land is always deemed to be a payment for the purpose of subsection (1) of section 20 of the Limitation Act, 1908 amounting to acknowledgment giving fresh period of limitation."
' Similar view has also been held by this court in case titled "Bilawar Khan v. Amir Sabar Khan and others (PLD 2013 Peshawar 38) and "Muhammad Zahir and 3 others v. Amir Saleh and 4 others"
(2014 MLD 212).
11. The judgments cited by learned counsel for respondents, in support of his contention and on which the learned appellate court below has placed its reliance is not applicable to the proposition of law under consideration herein, therefore, reliance could not be placed.
12. As in case in hand, the possession of the mortgage land is admittedly remained under continuous physical possession of mortgagee, who were enjoying the usufruct since 1903-1904, therefore, it's not necessary to mention the subsequent sub-mortgage, as even from the first mortgage, in view of subsection (2) of section 20 of the Limitation Act, 1908, the suit filed by petitioner was within time.
13. The other contention of the learned counsel for respondents that the appeal was filed against a dead person and legal heirs of Faizullah, who died during trial of the suit, were made party in the revision petition is also not tenable as the legal heirs of late Faizullah were made party there in the trial court and though once again the name of their predecessor in interest was made party in the appeal but actually respondents legal heirs of Faizullah, had contested the appeal, while no such objection was agitated before the appellate court. No one could be penalized for any innocent omission while the appellate court was required to rectify the error or mistake, however, the appellate court below has also not mentioned this fact. This court could exercise its jurisdiction thereunder section 115, C.P.C, even, if no revision petition is preferred by any party, when any illegality or irregularity, otherwise come in the notice of the court, in order to do complete justice.
14. For the reasons, mentioned hereinabove, this revision petition is accepted and the impugned judgments rendered by both the courts below are set aside accordingly. The suit filed by the petitioners is accepted and the preliminary decree is passed in favour of petitioners as prayed for.
The petitioners shall deposit the mortgage money as mentioned in the head note of the plaint within three months of this judgment, in the court of learned trial court below.