MUHAMMAD DAUD KHAN, J.--- This Revision Petition is directed against the judgment and decree dated 3.9.2009 passed by learned Additional District Judge-I, Lakki Marwat, whereby appeal of the petitioners against the judgment and decree dated 25.7.2007 passed by learned Civil Judge-III, Lakki Marwat was dismissed.
2. Succinct but necessary facts of the case are that earlier, Painda Khan and others, predecessor of respondents Nos. 1 to 13 filed a suit for possession through redemption in respect of suit property, fully detailed in the heading of the plaint, against Azam Khan and others, in the Court of learned Civil Judge, Lakki Marwat. It is averred in the plaint that the suit land had been mortgaged before the settlement in the year, 1878, which was further transferred from time to time and lastly, the same was transferred to the petitioners, which is in its possession. The suit was contested by Azam Khan etc. By submitting written statement wherein two preliminary objections were raised that the suit of plaintiff is not within time; and the suit is for partial redemption. On divergent pleadings of the parties, the learned trial Court framed the following issues:
1. Whether plaintiffs have got cause of action?
2. Whether the suit is within time?
3. Whether the suit has been brought for partial redemption?
4. Whether plaintiffs are entitled to the decree of redemption on cost of Rs. 148/1 as prayed for?
5. Whether plaintiffs are entitled to the decree as prayed for?
6. Relief.
' Both the parties produced their respective evidence. The learned trial Court, after hearing the learned counsel for the parties, dismissed the suit vide judgment and decree dated 3.2.1999, which was challenged in appeal before the learned District Judge, Lakki Marwat. During proceedings, Painda Khan etc, predecessor of respondents Nos. 1 to 13, filed an application for withdrawal of the appeal with permission to file a fresh suit. The said application was allowed by the learned Additional District Judge, Lakki Marwat vide judgment and order dated 6.11.1999.
4.(sic) Subsequently, respondents Nos.1 to 13/plaintiffs filed the instant suit wherein it is averred that they are owners and mortgagors of the suit property while the petitioners/defendants are mortgagees and the suit property was mortgaged before settlement in the year, 1878, which was further mortgaged from time to time and now come under the possession of petitioners as mortgagee, which amounts to novation. The suit was hotly contested by the petitioners by submitting written statement. On divergent pleadings of the parties, the learned trial Court framed the following, issues:--
1. Whether plaintiff has got a cause of action?
2. Whether the suit of the plaintiff is liable to be dismissed due to res judicata?
3. Whether the suit of plaintiff within time?
4. Whether the suit is for partial redemption?
5. Whether this Court has got jurisdiction to entertain the present case?
6. Whether the suit is bad for non-joinder of the necessary parties?
7. Whether the plaintiff is the mortgagor/owner of the suit land?
8. Whether the defendants are mortgagees in possession over the suit land for more than 60 years and plaintiff rights of redemption have been extinguished?
9. Whether the plaintiff is entitled to the decree as prayed for?
10. Relief.
' Pro and contra evidence of the parties was recorded. The learned trial Court, after hearing the learned counsel for the parties, though decreed the suit in favour of respondents vide judgment and decree dated 21.2.2004 but on appeal, the same was set aside and the case was remanded back to the learned trial Court to decide afresh by giving opportunity of adducing evidence to both the parties vide judgment and order 6.12.2006. After remand, the respondents/plaintiffs produced Noor Muhammad AOK as RPW-1 and Hazrat Umar Patwari Halqa Samandar Tatar Khel as RPW-2 while petitioners/ defendants relied upon his own statement as DW-1. The learned trial Court, after hearing the learned counsel for the parties, gave findings on issues Nos. 3 and 8 that as the petitioners/mortgagees are cultivating the land and receiving its produce which amounts to acknowledgement of rights of mortgagees, the suit is within time. The trial Court was also viewed that section 28 of the Limitation Act, 1908 has been declared as repugnant to the Injunction of Islam by the Shariat Appellate Bench of Supreme Court of Pakistan in the case of Magbool Ahmad v.
Government of Pakistan (1991 SCM R 2063). So, the question of limitation regarding redemption of mortgage has no weight and decreed the suit in favour of respondents vide judgment and decree dated 25.7.2007. Feeling aggrieved, the petitioners filed appeal before the learned District Judge, Lakki Marwat, which was entrusted to learned Additional District Judge-I, Lakki Marwat for adjudication, who vide judgment and decree dated 3.9.2009 dismissed the same and upheld the judgment and decree of learned trial Court. Hence, the instant Revision Petition.
4.(sic) Mr. Arif Awan, Advocate, learned counsel representing the petitioners argued that the suit land was mortgaged on 5.4.1869 much prior to settlement in the year, 1878 while the instant suit was instituted in the year, 1999, after expiry of sixty (60) years, the right of mortgagor, to redeem the property has become time barred and respondents have no right to sue after expiry of time. He contended that both the learned subordinate Courts have failed to appreciate the evidence in its true perspective, therefore; the judgments and decrees passed by the lower Courts are the result of misreading and non-reading of evidence and correct law has not been applied to the facts of the case.
5. On the other hand, Mr. Zafar Iqbal Khan, Advocate, learned counsel representing the respondents argued that in the instant case, mortgagee rights were transferred from time to time and mortgagee changed hands acknowledging the mortgage and accepting the liability of mortgage.
According to him, had the parties novated the previous mortgage, the fresh limitation would start.
He further contended that where mortgage land is in possession of mortgagee, receipt of rent or produce of such land is deemed to be a payment and amounts to an acknowledgment and to be considered extension in the period of limitation for redemption of mortgaged property. The learned counsel supported the judgment and decree of subordinate Courts.
6. Arguments heard and record perused.
7. Mr. Gulab Khan Patwari Halqa Samandar Tatar Khel appeared as PW-1 and produced jamabandi for the year 1992-93 Ex.PW.1/1, copy khata for the year 1904-05 Ex.PW.1/2, Ghoswara mutations since 1904-05 Ex.PW.1/3, Goshwara of cultivation for the year, 1904-05 Ex.PW.1/4 and jamabandi for the year, 2000-2001 Ex. PW. 1/5.
' Mr. Gul Marjan ADK Lakki Marwat appeared as PW-2 and produced Goshwara mutation since 1878 to settlement in the year, 1904-05 Ex.PW. 2/1, 2/2 and Ghoshwara Kasht Ex.PW.2/3. The above revenue officials again appeared and recorded their statement, after remand, as RPW-1 and RPW- 2 respectively and submitted the same record before the Court.
8. It appears from the revenue record that according to entries in khata pertaining to the year, 1878 Ex.PW.1/2, the suit land was mortgaged vide registry dated 5.4.1869 vide which Khoedad and Zafar sons of Dadu caste Khokar was mortgaged to Chander Bhan son of Hassu Ram caste Orh and this mortgage right was further purchased by Muqarrab son of Hakeem mentioned in jamabandi for the year, 1888-89 Ex.PW.1/4. This land was further sold out `Bahafaz Rehan' in favour of one Shahbaz Khan son of Mir Baz Khan vide mutation No. 2269 dated 13.6.1934. Mutation No. 168 dated 11.10.1909, mutation No. 488 dated 3.11.1911, mutation No. 706 dated 11.12.1914 mutation No. 918 of 1917, mutation No. 2269 dated 13.6.1934, mutation No. 3189 dated 1 .2.1942, mutation No. 3737 dated 18.1.1946 and mutation No. 5151 dated 11.1.1964 also transpire that mortgagee rights were being sold out from time to time.
9. No doubt, the suit land was mortgaged in the year, 1869 but its mortgagee rights were transferred in the years, 1889, 1909, 1911, 1914, 1917, 1934, 1942, 1946, 1960 and 1964 which clearly considered acknowledgment on the part of petitioners, predecessor or prior mortgagor.
10. According to consensus settled by the superior Courts, mortgagee changed hands acknowledging the mortgage and accepting the liability and right of redemption of the mortgagor to redeem the mortgage in fresh period of limitation after acknowledgment. When mortgagee call himself as mortgagee, he implicitly acknowledges the mortgagors right. The Hon'ble Apex Court in the case reported in PLD 1986 SC 35 has held that:-- "The only question, therefore, that falls for determination is whether the view taken by the Courts below as correct that suit of the appellant for redemption of the mortgage was out of time and properly dismissed as time-barred. The mortgage was created on 31st March, 1916 and the sixty years limitation computed from this date would ordinarily expire, as observed by the learned Judge in the High Court, on 31st March, 1976. On the admitted facts the appellant seems to have moved the relevant authorities for redemption of mortgage in pursuance of instructions issued by the Chief Settlement and Rehabilitation Commissioner on 1st August, 1977 and as in terms of the aforesaid instructions the period of limitation of sixty years had already expired, his request was not entertained. It has, however, been urged with considerable force that the aforesaid memorandum of the Chief Settlement and Rehabilitation Commissioner, dated 8th December, 1959 wherein the Government acknowledged the right of redemption of the appellant and more particularly the entry in the Revenue Record showing the appellant as owner/mortgagor and the Central Government as mortgagee, dated 11th January, 1969, constituted acknowledgments in writing before the expiration of the period of limitation, under section 19 of the Limitation Act, with the result that a fresh period of limitation. Accrued in favour of the appellant".
The above said precedent was followed and referred by this Court in the case of Faqir Gul and others v. Abdur Rehman and others (1999 CLC 346).
11. Quite apart from this after emerging from the judgment of this Court in the case of Abdul Haq v.
AU Akbar anti. 12 others (1998 CLC 129), it is by now settled that where mortgagee is in possession of the mortgaged property and is in receipt of the usufruct, such receipt is Considered acknowledgment of mortgage. This dictum of law was followed by the Hon'ble Apex Court in the case of Nawaz Ali Khan and another v. Nawabzada and others (PLD 2003 SC 425) on examining the question "whether the transfer of mortgagee rights from time to time falls within the purview of Section 19 of Limitation Act, 1908 (acknowledgment) so as to give fresh start of period of limitation in a suit for redemption" and held that:-- "It may be noted at the outset that section 19 of the Limitation Act deals with the effect of acknowledgement in writing for the purpose of computation of limitation for instituting the.
Proceedings from the time when the acknowledgement has been made in writing i.e. Accepting the liability, whereas subsection (2) of section 20 of the Limitation Act directly deals with the receipt of produce of mortgaged land therefore, to determine the question of limitation for filing proceedings for redemption of the mortgaged property, this provision of law would be application."
The above said principle was followed by this Court in the case of Muhammad iqbal and others v.
Ghaunsullah and others 2002 CLC 1533 and hashim khan and others v. Muhammad jamil and others (2011 YLR 1300).
According to revenue record, the E oral evidence supported possession of petitioners/defendants over suit land and use of its fructose as its owner as well as D mortgagee since long would be deemed to be acknowledgment of payment of debt, thus, time would be computed from date of such acknowledgment and receipt of produce on every harvest would be deemed as an acknowledgment giving fresh start to period of limitation.
12. As far as the view taken by both the subordinate Courts whereby decreeing the suit of respondent/plaintiff relying on the judgment of Shariat Appellate Bench of Supreme Court of Pakistan in the case of Maqbool Ahmad v. Government of Pakistan (1991 SCM R 2063) is concerned, the same is erroneous in the instant case for the reason that Article 148 of the Limitation Act neither was challenged nor discussed in the above cited case. For guidance of the learned subordinate Court, the relevant dictum of law of the Hon'ble Apex Court in the case of Khatamir and others v.
Mst. Sho Begum and others (2003 SCM R 589) is reproduced wherein it has been held that:-- "It may be noted that this Court in the judgment of Maqbool Ahmad v. Hakoomat-e-Pakistan (1991 SCMR 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 extinguisher of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said properly.
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".
13. of Hayat Mir v. Govt. Of Khyber Pakhtunkhwa (PL 2015 Peshawar 170) and held that:-- "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".
14. In view of what has been discussed above, this Court finds no merit in the instant revision petition which is hereby dismissed with no order as to costs.