' MUHAMMAD DAUD KHAN, J.--- Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners Hayat Mir and others have challenged the judgments and orders dated 30-08-1995, 12-05-1999 and 15-08-1999 respectively passed by respondents Nos.3, 2 and 1, whereby the Revenue Courts rejected the application, appeal and revision of the petitioners for redemption of certain mortgaged property.
2. Facts shortly are that the predecessor-in-interest of the petitioners had mortgaged with the predecessor-in-interest of the respondents certain land bearing khasra Nos.2577, 2760,2762, 2757 and 2761 measuring 52 kanals situated in Village Chokara District Karak. Following the death of their predecessor-in-interest, the land devolved on respondents vide mutation No, 2898 attested on 6.6.1993.
3. The respondents contested the application by filing their written statement. The Collector Takht- e-Nasrati, Karak, after framing issues, recording pro and contra evidence and hearing arguments of the learned counsel for the parties, dismissed the application being barred by time. The appeal and revision petition were also dismissed being barred by limitation under Article 148 of the Limitation Act, 1908 (hereinafter called as the Act).
4. Aggrieved from the aforesaid judgments and orders of the revenue courts, the petitioners filed a W.P. No,01/2000 which was allowed by a Division Bench of the Peshawar High Court Peshawar.
Resultantly, the impugned judgments and orders were declared as illegal, without jurisdiction and without lawful authority and of no legal effect and the petitioners, being lawful owners of the suit property, were declared entitled to redeem the same vide judgment dated 20.05.2003.
5. Not satisfied from the abovementioned judgment of this Court, -the respondents challenged the same before the august Supreme Court of Pakistan in CPLA No,1798 of 2003, in which Leave to Appeal was granted by the Apex Court to consider the controversy between the parties. The leave granting order is reproduced as under:- "It is, inter alia, contended that the redemption of the mortgage would be governed by the provision of Article 148 of the Schedule to the Limitation Act, 1908, which provides a period of 60 years from the date when the right to redeem or to recover possession accrues. In the case in hand, claim of the respondents was filed after more than a century without any explanation as to when the right to redeem or to recover possession under the mortgage had accrued to them.
Tentatively, therefore, the view taken by the Revenue authorities appears to be correct and the view of the High Court suffers from misconception of law as the High Court laid much emphasis on application of the provision of section 28 of the Limitation Act, 1908, relating to the extinguishment of right to property by virtue of prescription and adverse possession, which was declared repugnant to injunctions of Islam by .Shariat Appellate Bench of this Court in the judgment reported as Maqbool Ahmad v. Hakoomate-e-Pakistan (1991 SCMR 2063). It appeared that provision of section 28 of the Limitation Act were hardly attracted in the circumstances of the case while the High Court has not taken into consideration the legal implications of Article 148 (Supra).
' Leave to appeal is, therefore, granted to consider whether the High Court was legally justified in allowing the Writ petition and setting aside the orders passed by the Revenue authorities in the exercise of their jurisdiction in the facts and circumstances of the case?. "
' However, with the consent of the parties, the august Supreme Court remanded the case to this Court for its decision afresh.
6. Mr. Sher Muhammad Khan, learned counsel for the petitioners contended that in the matter in hand the decision of the Shariat Appellate Court reported in Maqbool Ahmad's case (supra), being very much important, has declared Section 28 of the Act as null and void and against the Injunctions of Islam. According to the learned counsel, as the decision was given effect from 31.08.1991, while the redemption application was filed by the petitioners on 01.11.1993, therefore, it shall not be hit by limitation. The learned counsel for the petitioners further relied on the case titled Abdur Rehman and 12 others v. Muhammad Akram (1999 SCM R 100)
7. Mr. Salamat Shah Mehsood, learned counsel for the respondents, conversely opposed the arguments of the learned counsel for the petitioners and contended that the instant case of the petitioners, being barred by law, falls within the Schedule to Article 148 of the Act wherein the prescribed period for filing an application to redeem a mortgaged property is provided as sixty years. The learned counsel for the respondents also submitted that Article 148 of the Limitation Act does not come within the ambit of Maqbool Ahmad's case (supra). He further supported the judgments and orders of the revenue hierarchies.
8. We have considered the arguments advanced by the learned counsels for the parties and perused the available record.
9 In support of their contention, the petitioners produced Patwari Halqa as PW-1, who produced copies of the following record of the disputed property:
1. Goshwara and Jamabandi from 1903-04 to 1991-92 (Ex.PW.1/1);
2. Khasra Girdawari from Kharif 1989 to Rabbi 1994 (Ex.PW.1/2);
3. Aks Shajra-e-Kishtwar for the year 1974-75 (Ex.PW.1/3);
4. Naqsha-e-Tasweree (Ex.PW.1/4); and GoOwara (Ex. PW . 1/5).
' The testimony of Patwari Halqa demonstrates that the disputed property was mortgaged before the year, 1903-04; though its Khasra numbers remained different at different times. According to oral evidence given by Hayat Mir, petitioner, one Ali Khan Mir mortgaged the suit property with Mst.
Khial Mina. The oral evidence further shows that Lal Mir was the legal heir of Mst. Khial Mina and the petitioners are the legal heirs of Khan Mir and Lal Mir. While wider cross-examination, Hayat Mir has testified that he got knowledge of the mortgage about 2/3 years; he does not know the names of all respondents, about the period for which the respondents in possession of the disputed property and the time when his grand father has passed away.
10. The respondents also produced their evidence in which they attempted to prove that the disputed property was purchased by his forefathers from Khan Mir, since long, residential houses have been constructed in the disputed property and that they challenged the entry of mortgage in a civil suit.
11. The above evidence shows that the suit land was mortgaged before the settlement of 1886-87 and remained mortgaged for more than 110 years. It also indicates that petitioners filed the claim under Section 10 of the West Pakistan Redemption and Restitution of Mortgaged Land Act, 1964, for redemption of mortgaged land. Petitioners for the first time made an application for redemption before the Collector, Karak, on 01.11.1991 which was dismissed by the Collector on 30.08.1995, being barred by law under Article 148 of the Act. The said judgment and order was maintained by the Additional Commissioner, Kohat vide judgment and order dated 20.05.1999. The revision petition also met the same fate as it was dismissed by the Senior Member Board of Revenue, Khyber Pakhtunkhwa vide judgment dated 15.08.1995.
12. Learned counsel for the petitioners mainly argued that Section 28 of the Act has been declared as repugnant to the Injunctions of Islam by the Shariat Appellate Bench of the august Supreme Court of Pakistan in Maqbool Ahmad's case. After having been declared as repugnant to the injunctions of Islam, no interpretation of any provision of the Statute can be adopted which may reintroduce the spirit of Section 28 of the Act afresh.
13. The pivotal question before this Court is that after repugnancy of Section 28 of the Act, can a mortgagee take shelter under Article 148 of the Limitation Act, enjoying possession of the mortgaged property for 60 years or more?
14. In Maqbool Ahmad's case Section 28 of the Act along with Article 144 of the Act was challenged but only Section 28 of the Act was declared repugnant to the injunctions of Islam whereas Article 144 of the Act was not touched at all. Later on, through amendment in Act No,II of 1995 Article 144 of the Act was omitted. Though the essence of Articles 144 and 148 of the Act was the same, but Section 148 of the Act was neither discussed in the judgment of Maqbool Ahmad's case nor omitted through the amendment. It follows that Article 148 of the Act is still intact. This question came up for consideration before the august Supreme Court of Pakistan in the case reported as "Kata Mir and others v. Mst. Sho Begum and others (2003 SCM R 589) wherein it has been held as under:- 'It may be noted that this Court in the judgment of Maqbool Ahmad v. Hakoomat-e-Pakistan (1991 SCM R 2063) declared the provisions of section 28 of the Limitation Act as repugnant to the Injunction of Islam to the extent as it deals with extinguishment of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said property.
However, in this case the provisions of Article 148 of the Limitation Act relating to filing of the suit for possession through redemption was not discussed that is why for such reasons this Court in the case of Ismail (ibid) was held that if a mortgagor has not filed a suit for redemption within time he would lose his proprietary rights over the property and the mortgagee who is in possession of the mortgaged land by prescription would be deemed to be the owner of the property."
In light of the afore-discussion, we are of the considered view that the suit of the petitioners for redemption is badly time barred under Article 148 of the Act. The case relied upon by the learned counsel for the petitioners (1999 SCM R 100) is not relevant to the facts of the instant case as the referred case is the outcome of mortgagees suit for prescription.
15. The bar of limitation being embodied in the statute of limitation, it is a statutory requirement that an action must be taken within the statutory time limit and Section 3 of the Act provides a clog for every suit instituted, appeal preferred or an application made after the period of limitation shall be dismissed although limitation has not been set up as a defence.
16. The words 'although limitation has not been set up as a defence provide clear cut indication of the statutory intention that it is not left to parties to take or not to take objection to the suit, appeal or application being time barred. Under the law, the Court must dismiss the suit, appeal or application if it is hit by the statute of limitation. Reliance is placed on Ahsan Ali and others v.
District Judge and others (PLD 1969 SC 167).
17. For the reasons discussed above, the suit/application of the .Petitioners is found hopelessly barred by time. The impugned judgments and orders of the revenue courts/respondents Nos.3, 2 and 1 are based on proper appraisal of evidence on record and do not find any illegality or material irregularity or any jurisdictional error in the impugned judgments and orders warranting interference by this Court in its constitutional jurisdiction. Consequently, the instant petition, being meritless, is dismissed with no order as to costs.