' AMIN-UD-DIN KHAN, J.---Through this civil revision the petitioner has challenged the judgment and decree dated 25.03.1998 passed by the learned Additional District Judge, Dera Ghazi Khan, whereby the appeal filed by respondent No, I plaintiff was accepted, by way of which, the judgment and decree dated 26.06.1996 passed by the learned Civil Judge 1st Class, Dera Ghazi Khan dismissing the suit for declaration filed by the plaintiff/respondent No,1, were reversed.
2. The brief facts of this case are that the plaintiff/respondent No,1 on 10.09.1989 filed a suit for declaration against the petitioners as well as respondents Nos,2 to 5 with the assertions that the plaintiff be declared owner of suit property and defendant No,2. The Central Government is mortgagee and the entries of revenue record whereby the ownership of plaintiff has been extinguished be declared null and void. The prayer for redemption of suit property as well as possession has also been made. The case as narrated by the plaintiff/respondent No,1 was that the original owners of suit property were Ghulam Muhammad, Ghulam Rasool, Karim Bakhsh and Nabi Bakhsh sons of Moosa. They mortgaged the suit property along with other property with Sadhu Ram son of Thakur Das through registered mortgage deed No,269 registered on 18.07.1888 and mutation No,283 was also attested on 19.06.1889. It is the case of plaintiff that the suit land reached to the Central Government after the migration of non-Muslims at the time of independence of the country and the land was allotted to defendant No,3 and mutation No,300 was attested on 27.07.1988. It is the case of plaintiff that through attestation of mutation No,269 on 30.06.1988 the name of plaintiff was removed from the array of owner of suit property.
3. The written statement was filed and suit was contested. The case of petitioner as defendant No,5 was that he is bona fide purchaser without notice and legal objection with regard to maintainability of the suit was also raised. It was further pleaded that even the plaintiff himself had tried to purchase the suit property from the allottee of the Central Government and the suit is absolutely not maintainable. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 26.06.1996 suit was dismissed by the learned trial court. An appeal was preferred before the learned first appellate court, which was accepted vide judgment and decree dated 25.03.1998 and the suit was decreed. Hence, this civil revision.
4. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
5. For appreciation of facts involved in this case and the law it is necessary that the definition of land noted in section 2 of the Punjab Redemption and Restitution of Mortgaged Lands Act, 1964 (W.P. Act XIX of 1964) be noted, which is as under:-- "2. Definitions. (e) "land" means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes?
(i) the sites of buildings and other structures on such land;
(ii) a share in the profits of an estate or holding;
(iii) a right to receive rent;
(iv) any right to water enjoyed by the owner or occupier of land as such; and
(v) all trees standing on such land;"
' Section 3 of the Punjab Redemption and Restitution of Mortgaged Lands Act, 1964 (W.P. Act XIX of 1964) relates to petition for redemption. It is also noted for ready reference as under:-- "3. Petition for redemption.---After the principal money becomes due and before a suit for redemption is barred, a mortgager of land not exceeding fifty acres in area or of land the principal money secured by which does not exceed five thousand rupees, may apply to the Collector for an order directing that the mortgage be redeemed and that he be put in possession.
' Explanation I.---The area of any share in the common land of the village or of sub-division appertaining thereto and mortgaged with the land, shall not be taken into consideration while determining the area of the land mortgaged.
' Explanation II.---This section shall not apply to usufructuary mortgage effected for a specific number, of years and intended to terminate without the repayment of any part of its consideration."
' Section 17 of the Punjab Redemption and Restitution of Mortgaged Lands Act, 1964 (W.P. Act XIX of 1964) relates to jurisdiction of civil Court, which is also noted for ready reference:- "17. Jurisdiction of Civil Court barred.---No Civil Court shall have jurisdiction to entertain any claim or enforce any right under a mortgage declared extinguished "under this chapter or to question the validity of any proceedings under this Chapter."
6. The plaintiff/respondent No,1 came to the court for a declaration that he be declared owner of suit property and has challenged the entries of revenue record as well as, as per plaintiff, it be declared that the suit property was mortgaged by the predecessors of plaintiff to the non-Muslim evacuees and thereafter the same was transferred in the name of Central Government and subsequently it has transferred by the Central Government in favour of defendant No,3, then it was sold to defendant No,4 and lastly to defendant No,5 and further to declare his right of redemption as his claim is within the period of limitation. The plaintiff had opted not to appear in the witness box and no sufficient ground for non-appearance as witness was offered. He produced his son as his attorney as PW-2. At the time of appearance as witness on 25.02.1993 he was 33 years old. Most of the previous things/events were not in his knowledge. The plaintiff tried to take the benefit of Ex.P-1 (Fard-e-Intikhab) prepared by the Patwari and Ex.P-2 (the reply of Band Sawalat). I have minutely gone through the same and just producing these two documents does not prove the case pleaded by the plaintiff. Even he has not produced the copy of mutation, according to which, the endorsement of plaintiff and his predecessors as owner of suit property were removed by transferring all rights in favour of the Central Government. The plaintiff was required to prove that the suit property was mortgaged by for brothers i,e, Ghulam Muhammad, Ghulam Rasool, Karim Bakhsh and Nabi Bakhsh sons of Moosa and plaintiff is the sole heir of all the above for br-Ithers, as he is son of Karim Bakhsh, one of the alleged mortgagor. The plaintiff failed to prove this fact.
Furthermore, he was required to prove that his suit is within the prescribed period of limitation and further his suit for redemption of suit property was competent.
7. An application under section 3 of the (Punjab) Redemption and Restitution of Mortgaged Lands Act, 1964 was competent before the District Collector and the civil Court was having no jurisdiction under section 17 of the Act. Admittedly the plaintiff/respondent No,1 or his predecessor never applied for redemption of the land in question before the Collector. When it is so, the suit was not competent. I am clear plaintiff was bound to -how that the principal money had become due and he was ready to pay back the principal money and entitle to redemption. The plaintiff/ respondent No,1 has not approached the appropriate forum and as such his suit was not competent. In this view of the matter, the impugned judgment and decree passed by the learned first appellate Court are not sustainable under the law.
8. The resume of above discussion is that this Civil revision is allowed and the judgment and decree dated 25.03.1998 passed by the learned Additional District Judge, Dera Ghazi Khan are set aside and those of the learned trial Court dated 26.06.1996 are restored.