IKRAMULLAH KHAN, J.- Through the instant Revision petition, petitioners have challenged the impugned judgment and decree dated 18.2.2009 rendered by learned Additional District Judge, Mardan, whereby appeal of respondents No.1 to 20 was allowed and the judgment and order of learned trial Court dated 26.7.2006 was set aside.
2. In essence, respondents No.1 to 20 brought a suit against predecessor of petitioners and others before the Court of learned Civil Judge, Mardan, which was contested by petitioners/defendants through filing written statements denying therein the claim of respondent No.1, by raising various legal and factual objections. From the pleadings of the parties, the required issues were framed by learned trial Court. After recording pro & contra evidence as well as hearing the parties, the learned trial Court dismissed the suit of respondents No.1 to
20. Aggrieved from the same, the respondents filed appeal which was allowed by learned appellate Court thereby setting aside the judgment and decree of learned trial Court vide impugned judgment, hence the instant civil revision petition has been preferred by petitioners.
3. I have heard learned counsel for the parties and have gone through the record.
4. Petitioners claimed to be owner of the suit property on the basis of sale deed No.94 dated 26.6.1958. In order to prove the execution of the sale deed by the respective vender, petitioners had examined PW-1, the clerk of Sub-Registrar, Mardan who had placed on record, copy of sale deed dated 26.6.1958 from the official record as Ex. PW 1/1. PW-5 was the son of one Zarnosh, who was scribe of sale deed. He correctly verified signature of his father, over the sale deed which was scribed by him. PW-6 was son of one of the attesting witness namely Tila Muhammad, who also correctly verified signature of his father as an attesting witness over the sale deed EX. PW 4/1.
5. The revenue papers placed on record, reveals that the suit property was the ownership of predecessor-in- interest of respondents No.3 to 20, who had mortgaged the same to predecessor-in-interest of respondents No.2 and 3 namely Nauman which still holds the field, however , on his death, the suit property was shown to be mortgaged with legal heirs of Nauman, respondents No.1 and 2. The respondents No.3 to 20 had not contested the case, although they were shown to be owners of the suit land and due to default in appearance they were proceeded ex-parte. Contesting respondents have taken the plea of ownership, only on the ground that they were mortgagee of the suit property and after lapse of more than 60 years petitioners could not redeem the suit property , as respondents have matured their title while the suit of petitioners was hopelessly time barred.
6. On one hand presumption of truth is attached to official record, produced from safe custody and respondents have not raised any objection over the mode and manner of production of record pertaining to the sale deed dated 26.6.1958 while on other hand, the attesting witnesses were admittedly dead however the owners/mortgagors had not contested the suit. Contesting respondents hold status of mortgagees only, whether they could claim ownership of the suit land, on basis of period of limitation and prescription of title in view of section-28 of the Limitation Act, as well as Article 144 of the same Act.
7. As this proposition of law has already been resolved by the Apex Court as well as by this Court where it is held that no mortgagee shall claim ownership of land on the basis of adverse possession after the judgment of the apex Court rendered in case of "Maqbool Ahmad Vs Government of Pakistan" (1991 SCMR 2063) wherein, it is held as:- S.28--Constitution of Pakistan 1973, Art. 203-F-- --Repugnancy to injunction of Islam--Provision of Section 28 of the Limitation Act, 1908 was repugnant to injunction of Islam insofar as same provided for extinguishment of right in the property at the determination of period prescribed for instituting suit for possession of property Decision of Supreme Court would take effect from 31st August 1991 and on that date S.28 Limitation Act 1908, would also cease to have effect."
8. It is admitted position that respondents have not succeeded to get decree of foreclose of rights of mortgager nor ever succeeded in getting decree from competent Court of law on prescription of their title in view of Section 28 of the Limitation Act, before the target date i.e, 31.8.1991.
9. The second proposition of law was as to whether the suit of the petitioners was time barred in view of Article 143 of the Limitation Act. It is admitted fact that petitioners had acquired proprietary rights over the suit property on 26.6.1958 while they had instituted the suit in the year 2000. The period of limitation against the petitioners would commence, from 26.6.1958 when they acquired the proprietary rights and the suit filed by petitioners was within time.
10. This Court in case of "Bilawar Khan Vs Amir Sabir Rahman & another (PLD 2013 Peshawar 38) also held as:- Besides that, a fresh period of limitation would be computed from the date of subrogation. It is evident from the record as discussed earlier that defendants/mortgagees have been enjoying possession and usufruct of the suit property since inception of the mortgage. According to the revenue record, it is also shown in possession of the defendants, which clearly suggests that mortgagees have been enjoying the possession and usufruct of the suit property since 1918, the year of creation of mortgage. By virtue of section 20(2) of the Limitation Act, 1908, the receipt of rent or produce of the mortg aged land by the mortgagee, when it is in his possession, is deemed to be the acknowledgment of the payment of debt for the purposes of sub-clause (1) of the Ibid Section and the time would be computed from the date of such acknowledgment. Section 20 of the Limitation Act, 1908, reads as follows:-- "S.20. Effect of payment on account of debt or of interest on legacy.--(1) Where payment on account of 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.
Effect of receipt of produce of mortgaged land.
(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)".
It clearly postulates that when a mortgaged property is in possession of the mortgagee and he is receiving rent or usufruct thereof, the receipt of the produce on every harvest, is deemed as an acknowledgment. By virtue of this provision of law, the time would be reckoned afresh from every harvest and the mortgagor shall have recurring cause of action on each harvest, regardless of what the intention of the mortgagee may be or might have been. Reliance placed on Abdul Haq's case ( 1999 SCMR 2531 ).
11. In so far as the institution of the suit on the basis of sale deed is concerned, question of limitation, would have been agitated by the original owners, who had shown no any interest in case to contest the same, meaning thereby that they had admitted the sale deed, while in case of Salam Akhtar (PLD 2000 Lahore 385), it is held that every wrong entry in record of rights accrue fresh cause of action to the plaintiff and plaintiff had the option to file suit for declaration on every denial of his rights.
12. As the contesting respondents could not legally deny the proprietary rights of petitioners in the suit property nor could claim ownership, as not only section 28 but also Article 144 of the Limitation Act is not part and parcel of the statute book, while the petitioners have filed their suit within prescribed period of limitation provided thereunder Article 148 of the Limitation Act. Therefore, the findings of learned Courts below which are not sustainable by acceptance of this Revision Petition, are set aside, the suit of the petitioners is decreed as prayed for, on payment of the mortgaged money of Rs.600/- to be paid with acknowledgement receipt to the learned trial Court. However, this judgment shall not affect rights of any person (if any) who was not made party to the suit.