' IKRAMULLAH KHAN, J.---Petitioner invoked the jurisdiction of this Court through instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 whereby he impugned the judgments and orders of the respondents Nos. 15 to 17 to be declared as void, wrong, against the law, without lawful authority, void and ineffective upon his rights and are liable to be set aside.
2. Brief facts leading to the instant petition are that petitioner filed an application against respondents Nos.1 to 14 on 31.10.1993 before the learned Assistant Collector Mansehra for redemption of suit land bearing Khasra Nos. 6970 and 6963 measuring 22 Kanals and 07 Marlas situated at Titwal, Baffa Lughmani Liari, Tehsil and District Mansehra, which was contested by the respondents by filing their written statements, whereafter both the parties were directed to adduce their respective evidence, which they accordingly produced and after recording evidence and hearing learned counsel for the parties, application of the petitioner was dismissed on 31.03.1996.
3. The petitioner, being dissatisfied from the aforesaid judgment, preferred an appeal before the learned Additional Commissioner Hazara Division Abbottabad which too met the same fate, whereafter the petitioner moved before the Member Board of Revenue by filing a Revision Petition but that too was dismissed on 10.10.2012, hence, the instant constitutional petition.
4. It is pertinent to mention here that during pendency of the appeal before the Commissioner, respondents Nos.l to 14 instituted a declaratory suit before the Civil Court Mansehra on the ground that they became owner of the suit land due to possession of the suit/mortgaged property for the last sixty years and, as such, the learned trial court decreed the said suit whereagainst the petitioner preferred an appeal before the court of learned District Judge Mansehra which was entrusted to the court of learned Additional District Judge-I, Mansehra, who accepted the appeal on 14.11.2002 and set-aside the judgment of the learned trial court by declaring the respondents to be mortgagee only, whereafter the respondents went in revision before this court but subsequently withdrew the same.
5. Arguments heard and record perused with the assistance of learned counsel for the parties.
6. The record reveals that the suit property had mortgaged with one Dosar son of Jiya vide mutation No, 4967 on 18.08.1914, in lieu of Rs,240 with delivery of possession to the then mortgagee.
The suit property was one again mortgaged for an additional amount vide mutation No, 25331 for Rs, 500/- on 31.01.1943.
7. In the year, 1948, one of the owner/mortgagor, namely Ghulam Qadir sold his half share to one Abdur Rehman son of Jan Muhammad vide sale mutation No, 395 attested on 21.08.1948. In the year 1981 Ali Haider, the mortgagor, also sold his half share in the suit property to one Dawood, the present petitioner, who is son of Ghulam Qadir vide sale mutation No, 7629 attested on 04.01.1981.
8. The rights of mortgage were purchased by Maroof and Aurangzeb sons of Abdur Rehman vide mutation No, 2125 attested on 15.02.1955, the legal heirs of them are now respondents herein, who are owners to the extent of half of the suit property while mortgagee to the rest of the suit property.
9. The respondents Nos. 15 to 17, being revenue officials, have dismissed the claim of petitioner in order to redeem the suit property on the sole ground of limitation in view of Article 148 of the Limitation Act 1908, wherein a suit for redemption could only be instituted within 60 years, while the suit property had, for the first time, mortgaged in the year 1914.
10. Learned counsel for the petitioner made his submissions that the impugned judgments are against the principle of law, enumerated thereby the Apex Court, in case of "Maqbool Ahmed v.
Hakoomat-e-Pakistan" reported as 1991 SCMR 2063 and argued that, as respondents have not declared by any competent court as owners on the basis of prescription, respondents could not be made as such, thereafter, the target date provided therein the ibid judgment i,e, 31.08.1991, and that no bar of limitation could be placed in matter of redemption of the suit property by petitioner.
11. The contention of learned counsel could not be thrown away as based and protected by the canon of law, enunciated by the Apex Court.
12. It is now settled proposition of law, that a mortgagee of immoveable property if not succeeds to obtain a decree for foreclosure or sale in terms of Section 67 of the Transfer of Property Act, 1882 or a declaratory decree in terms of Section 28 of the Limitation Act, 1908 on the basis of prescription before the target date i,e, 31.08.1991, provided therein the case of Maqbool Ahmed ibid, could not be awarded any decree as not only Section 28 but also Article 144 of the Limitation Act have been declared to be against the injunction of Islam and both sections of law ibid are no more part and parcel of the relevant Statute, thereafter 31.08.1991.
13. Respondents have filed a suit for the purpose to be declared as owner, in a competent Court of law and the same has already been dismissed, which is not challenged by respondents furthermore, in B any court, which has attained finality and such dismissal of the suit deem to be a decree in favour of the petitioners in terms of section 2(2), C.P.C. Which reads as under:-- "means the formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of plaint [the determination of any question within section 144, and an order under rules 60,98,99, 101, or 103 of Order XXI] but shall not include:--
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default. Explanation:---A decree is preliminary when farther proceedings have to be taken before the suit can he completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
14. Petitioner has invoked the jurisdiction of the concerned Collector in view of Section 3 of the West Pakistan Redemption and Rectitution of Mortgaged Lands Act, 1964, which reads as:-- "After the principal money become due and before a suit for redemption is barred, a mortgagor of land not exceeding fifty acres in area or of land the principal money secured by which does not exceed five thousands rupees, may apply to the Collector for an order directing that the mortgage be redeemed and that hereby put in possession.
Explanation: I. The area of any share in the common land of the village or of a sub-division appertaining thereto and mortgaged with the land, shall not be taken in to consideration while determining the area of 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.
15. The above mentioned section of law confers jurisdiction upon the concerned Collector, to redeem any mortgage, if the two conditions, provided therein is fulfilled and to restore the possession of the mortgaged land to the mortgagor with specific bar that if the suit for redemption was not barred by time.
16. The suit/application of the petitioner has been throughout dismissed by the revenue hierarchy as all have reckoned the period of limitation therefrom the creation of the first mortgage on the suit property vide mutation No, 4967 dated 18.08.1914, but the provision contained in Article 148 of the Limitation Act 1908 shall not be applied to usufructuary mortgagees as section 20 of the Limitation Act itself saves such like usufructuary mortgage therefrom the operation of section 148 of Limitation Act, 1908, which reads as:-- "S.20. (1) Where payment on account of a 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 computed from the time when the payment was made.
' Provided that an acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
(2) Where mortgaged land is in the 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).
Explanation:- Debt includes money payable under a decree or order of Court.
17. A perusal of the above quoted provisions in general and its subsection (2) in particular, has made it quite clear in unequivocal term that when the mortgagee is in possession of the mortgaged property and receives the usufructs, shall be deemed to be a payment of the mortgage money but its 'acknowledgment as well and thus a fresh period of limitation shall be computed from time when such payment was made. This legal aspect of the case finds lucid expression in the judgment rendered in case of Muhammad Iqbal and 17 others v. Ghaunsullah Khan and 17 others (2002 CLC 1533) relevant paragraph whereof as under:-- "Where mortgagee was in possession of the mortgaged property and was in receipt of the usufructs, such receipt would be considered as an acknowledgment of mortgage and would be counted towards the payment of mortgage money within the terms of section 20(2) of the Limitation Act, 1908, and every such receipt would give rise- to a fresh period of limitation, when the mortgage was usufructuary in nature, the question of extinguishments of title of the mortgagor and perfection of the title of the mortgagee through prescription would not arise."
18. This Court in the case of Baidullah Jan v. Hawas Khan (PLD 2002 Peshawar 92) has held a similar view. The author of both the above cited judgments was his lordship Mr. Justice Ijaz Afzal Khan.
19. In case of Abdul Haq v. Ali Akbar (1998 CLC 129) this Court held that:-- "Where mortgaged land is in possession of the mortgagee, the receipt of the rent or produce of such land under section -20(2) of the Limitation Act, 1908, is deemed to be a payment on account of debt or of interest under section 20(1) of the Act and amounts to an acknowledgment, giving fresh time of limitation provided such receipt of rent or produce is before the expiration of prescribed period of limitation".
20. In case of Nawaz Ali Jan v. Nawabzada and others (PLD 2003 SC 425) it was held as:-- "We are inclined to hold that as predecessor-in-interest of the appellants by acquiring the mortgage rights from Abbas Khan on 2nd March, 1962 has entered into a fresh agreement with the mortgagor, i,e, predecessor-in-interest of the respondents, therefore, from the date of acquiring of such right till expiry of the period of 60-years under Article 148 of the Limitation Act, 1908, the appellants cannot claim themselves to be the owner of the land by prescription according to section 28 of the Limitation Act, 1908.
21. The apex Court in case of "Abdul Haq v. Ali Akbar" (1999 SCMR 2531) delivered thereof, in C.P.L.A.
No, 1324 of 1997 filed thereof against the judgment of this Court reported as 1998 CLC 129 referred supra herein and in the concluding paragraph held as under:-- "We are in complete agreement with the conclusions arrived at by the learned single Judge that;- [There were no reasons to why this also should not be interpreted as novation of contract because in addition to additional charge, the old mortgagee including Abdul Haq petitioners were ousted and thereafter, a new mortgagee was created in their favour".
22. The facts of the case in hand could not be distinguished therefore the case, mentioned hereinabove, except that in case in hand, the petitioner/mortgagor had applied to the concerned Collector in terms of Section 3 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, instead of invoking the jurisdiction of civil court.
23. The principle of law, enunciated in the above mentioned cases are fully attracted to and are well applicable in the present circumstances and facts of the instant case.
24. The period of limitation in such like situation shall be reckoned from the last transfer of the right of the mortgagee and not from the first creation of the usufructuary mortgage, over the mortgaged property as, every new acquisition of right in the mortgaged property is an acknowledgment of liability in respect of the mortgaged property, however it is not required nor it.
Is the requirement of the provisions of section 20(2) of the Limitation Act, 1908, that such acknowledgment be signed by the mortgagor or any other person on his behalf, for the sole reason that the provisions of subsection (2) of the E section 20 of Limitation Act, 1908, is an exception to section 19 or subsection (1) of section 20, when read in juxtaposition to the above two sections of law in this regard.
25. For the reasons given hereinabove, this writ petition is allowed and impugned judgments/orders of the respondents are accordingly set aside as a result thereof, the suit property is thus restored/redeemed to the petitioner, being the owner of the property in lieu of the mortgaged money .Of Rs,500/- plus Rs,320/- Izafa Rehn i,e, total Rs,830/-. The petitioners shall deposit if not already deposited the mortgage consideration in the trial Court right now from the date of announcement of this judgment positively within a month. No order is to costs.