' WAQAR AHMAD SETH, J:- This Civil Revision is directed against the concurrent findings of two courts below whereby suit of the petitioners/plaintiffs was dismissed by the learned Civil Judge-II, Hangu vide judgment and decree dated 26.10.2011, which was upheld in appeal by the learned Additional District Judge, Hangu vide judgment and decree dated judgment and decree dated 15.2.2014.
2. Facts, in brief, are that the petitioners/plaintiffs filed a suit for redemption-cum-permanent injunction to the effect that their predecessor and respondents Nos. 52 to 59 had mortgaged the suit property measuring 10 kanals 7 marlas situated at Mauza Kahi Tehsil and District Hangu vide mutation No, 5665 attested on 27.5.1938, fully detailed in the heading of the plaint, in favour of predecessor of respondents/ defendants (respondents Nos.1 to 51) for a sum of Rs, 250/- and now they want to redeem the said property on payment of mortgage amount, hence, the respondents/defendants be directed to receive the said amount and transfer the property in their name along with respondents Nos. 52 to 59. They further prayed for restraining the respondents/defendants not to interfere in the suit property and mutations, if any, attested during the subsistence of mortgage be also cancelled. In alternative, they prayed for suit for declaration.
3. The suit was contested by the respondents/defendants by filing written statement. Issues were framed and accordingly evidence of the parties was recorded. On conclusion of trial, the learned trial Court, dismissed the suit of petitioners/plaintiffs vide judgment and decree dated 26.10.2011.
Feeling aggrieved, the petitioners filed appeal before the learned Appellate Court but the same was also dismissed vide judgment and decree dated 15.2.2014. Hence, the instant Revision Petition.
4. Arguments heard and record perused.
5. Record is suggestive that petitioners/plaintiffs filed the instant suit for redemption of mortgaged property which was mortgaged by their predecessor and predecessor of respondents Nos. 52 to 59 in favour of predecessor of respondents Nos.1 to 19 on payment of rupees 250/- vide mortgaged mutation No,5665 attested on 27.5.1938 Ex.PW-2/7. The basic plea taken by the contesting respondents in the written statement was that they are owners due to sale by the predecessor of petitioners and as such the suit of the petitioners is also hit by question of limitation.
' Learned trial court very rightly held that respondents failed to produce the said purchase / sell by the predecessor of parties in this respect and the issue No,7 was decided in negative against which the respondents have filed no appeal / cross objection hence, the plea of respondents that their predecessor purchased the said property is no more in field.
6. PW-1 is the Patwari Halqa and in examination in chief while exhibiting the relevant revenue documents i.e, Fard for the year 2001-2002 Ex.PW-1/1 and Fard for the year 1971-72 Ex.PW-1/2, the consistent possession of petitioners has been shown. In his cross examination he admitted correct that disputed property is till date mortgaged one and the petitioners/plaintiffs are in possession right from start. Attorney of the petitioners/plaintiffs appeared as PW-3 and stated that petitioners/plaintiffs are willing to pay them the mortgaged amount of rupees 250/- as against this there is nothing on record to show that the possession of the mortgaged property ever rested with the predecessor or for that purpose, with the respondents and as such the possession of the mortgaged property is continuously with the petitioners/plaintiffs.
7. Learned trial Court as well as the appellate Court non-suited the petitioners / plaintiffs only on the point of limitation, as according to Article 148 of the Limitation Act, 1908, period for limitation for filing suit for redemption is sixty years whereas, the instant suit admittedly has been filed after a lapsed of sixty-eight years. If for a moment the suit for redemption is dismissed for the purpose of limitation, then what would be the fate of the property, because on one hand, the respondents/ defendants would be hit by the principle of estoppel and on the other hand petitioners / mortgagors would hit by limitation, in the circumstances when possession is admittedly with the mortgagors. The property once mortgaged can never remain mortgaged for an indefinite period.
Once a mortgagee always a mortgagee and they cannot step in the shoes as owners by lapse of time. In the case in hand the reading of the mortgaged mutation Ex.PW-2/7 would not show any mortgaged by conditional sale. There is nothing in the said mutation that in case of non-payment of mortgaged amount the mortgagee will become owners. In case of Ayub Khan v. Haqdad Khan and 9 others reported in PLD 1979, Peshawar, 87, it has been held as under- ", "---S. 28---Limitation---Declaration---Person mortgagee of land for over 60 years but not in possession---Cannot be given declaration regarding rights of mortgagors in possession having extinguished and title passed on to mortgagee.
' Likewise in the case of Abdul Haq v. Ali Akbar and 12 other, reported in 1998 CLC 129 (b) it has been held that:- "---Ss. 58 & 60---Right of mortgagor to redeem-Transaction concerning mortgage--- Construction--- Mode--- Mortgage, subsistence thereof and acquisition of title by prescription by mortgagee, were conditions that were to militate against rights of rightful owners, therefore, courts of law which were also courts of equity, should construe various transactions concerning mortgage in such liberal way that the right of rightful owner survived and one who had enjoyed possession and produce for nearly sixty years and had recovered amount manifold, should not be allowed so get away with the land as well.
8. Even if there is a clause in the mortgage deed to the effect that mortgagee would become owner in possession of property due to non payment of mortgaged money on expiry of any stipulated period, even then the possession of the mortgagee over the said property remains as mortgagee and would not stand converted in possession as owners thereof. In the instant case there is no such possession. In case reported in PLD 2014 Lahore, 26 (f) it has been held as under:-- "---Ss. 58(e) & 60---Mortgage deed containing a clause to the effect that mortgagee would become owner in possession of property due to nonpayment of mortgage money on expiry of stipulated period of six months-Mortgagors, plea was that such transaction was to be treated as sale and he would become owner of suit property on account of non-payment of mortgage money by mortgagor---Validity-Right of redemption as envisaged in S. 60 of Transfer of Property Act, 1882, was a statutory right affirming the principle that once a mortgage always a mortgage---Such condition was a clog on mortgagor's right of redemption, thus, same was illegal and void---No decree of court extinguished mortgagor's right of redemption existed- Impugned transaction would remain as mortgage as parties had not subsequently converted same from mortgage into a sale by executing a sale deed---possession of mortgagee over property remained as mortgagee and would not stand converted into possession as owner thereof.
9. Section 28 of Limitation Act, 1908 had been declared to be repugnant to injunction of Islam and the logic behind such declaration was that no lawful owner could be deprived of his right merely by efflux of time nor a person enjoying possession for a long time could be awarded with premium of ownership, even whereas in the instant case the possession has also been established that the same is with the mortgagor's / petitioners. This court in reported judgment titled BilaWar Khan V.
Amir Sabar Rahman and other, reported in PLD 2013 Pesh. 38 has recommended for deletion / omission of Article 148 of the Limitation Act, 1908, as well, in view of deletion of section 28 thereof and has held as under:-- "-S. 20, Art. 148 & S.28, [Since omitted by Limitation, (Amendment) Act (II of 1995)]---Transfer of Property Act (IV of 1882) S. 92---Suit for possession through redemption of mortgaged land--- Suit land jointly mortgaged in year 1910 by predecessor in interest of parties being real brothers inter se---Defendants plea that plaintiff had redeemed suit land to the extent of his share in extent year 1953, while mortgage to the extent of defendant remained intact, thus, plaintiff's suit filed after 60 years was time barred by virtue of Art. 148 of Limitation Act, 1908---Suit dismissed by trial court was decreed by appellate court-Validity-Defendants after having redeemed suit property on basis of decree obtained in year 1985 had become mortgagee to the extent of share of plaintiff on principle of subrogation contained in S.92 of Transfer of property Act, 1882--- Revenue record and oral evidence supported possession of defendant over suit land and use of its usufruct as its owner as well as mortgagee to the extent of share of plaintiff since long-- Defendants after having substituted original mortgagee by redeeming suit land had become entitled to reimbursement of mortgage amount paid by him in respect of share of plaintiff by stepping into the shoes of original mortgagees---Possession of defendant after redemption of suit land could not be adverse to interest of other co-owner i.e, plaintiff---Every co-owner in possession of joint property would be enjoying possession on behalf of all co-owners and could not urge plea of adverse possession against his ---According to S. 20(2) of Limitation Act, receipt of rent or usufruct of mortgaged land by mortgagee in possession would be deemed to be acknowledgment of payment of debt, thus, time would be computed from date of such acknowledgment-Receipt of produce on every harvest would be deemed as an acknowledgment giving fresh start to period of limitation-Plaintiff in such case would have recurring cause of action on each harvest---Section 28 of Limitation Act, 1908 had been declared to be repugnant to injunctions of Islam--- Logic behind such declaration was that no lawful owner could be ,deprived of his right merely by efflux of time nor a person. Possession for a long time could be awarded with premium of ownership---Mortgagee having enjoyed possession more dean 60 years or more would have wowed usufruct more than his mortgage money, thus he cold not be bestowed with ownership on expiry of 60 years---Courts would have to follow logic behind such declaration till omission of Art. 148 of Limitation Act, 1908, required omission from statute, otherwise despite omission of S. 28 thereof, mortgagee in possession without fixing time could not be evicted after 60 years despite the fact such mortgagee could not get decree of prescription after omission of S. 28 thereof---High Court dismissed revision petition while directing to send copy of its judgment to Law, justice and Parliamentary Affairs to consider omission of Art. 148 of Limitation Act, 1908.
10. It is an admitted fact that the possession of the mortgaged property is with the mortgagor's/petitioners and as such they have simply prayed for closure by paying the redemption money to the mortgagee's/ respondents and correction of the revenue record in this respect. In such a situation when a mortgagee has no possession and he only secure his money by the entry of mortgaged he cannot take the plea of prescription of a mortgaged and the suit cannot be dismissed simply that the land was not redeemed within sixty years, as mortgage only remain a charge on the immovable property with no other benefit to the mortgagee except his security for the mortgaged money, which can be paid any time and petitioners have made the offer in this respect in their suit, as well.
11. The moment the only plea of purchase of land by the respondents, in the written statement, stands dismissed by way of issue No,7, against which no appeal or cross objection was filed, then it was within the time, the suit filed by the petitioners/plaintiffs and disallowing for closure of the mortgaged is in excess jurisdiction vested with the courts below. The mortgagee, even otherwise cannot bring a suit of ownership on the plea of prescription in view of the dismissal of his plea in the written statement.
12. In view of above, it is safely held that both the courts below have misread the revenue record and the settled law on the subject. This revision petition is allowed, both the judgments and decrees of the lower forum dated 26.10.2011 & 15.2.2014 respectively are set aside and suit of the petitioners / plaintiffs is decreed as prayed for, subject to payment of mortgaged amount of rupees 250/- through money order, within one month.