MUHAMMAD AMEER BHA TTI, CJ:- The concurrent findings of facts recorded by the learned Courts below , whereby the suit and appeal of the petitioners were dismissed vide order/judgment dated 09.12.201 1 and 08.05.2012, respectively , have been called-in-question through this revision petition.
2. The brief facts of the case are that the land-in-question was mortgaged with the present petitioners by the owner/predecessor-in-interest of present respondents-defendants No.4 to 15 on 14.06.1933. Record reveals that the mortgagor did not apply for the redemption of land-in-dispute within the stipulated period of sixty years, however , the honourable Supreme Court in a judgment titled, Maqbool Ahmad v. Hakoomat-e-Pakistan? reported as 1991 SCMR 2063 declared the provisions of Section 28 of the Limitation Act, 1908, repugnant to the Injunctions of Islam and target date for the commencement of its effect was given as 31.08.1991 directing the Government to amend/promulgate the law accordingly . The order of the honourab le Supreme Court is reproduced hereunder:- "For reasons recorded in two separate judgments, the Court is unanimous in holding that section 28 of the Limitation Act, 1908 (Act No.IX of 1908) is repugnant to the Injunctions of Islam in so far as it provides for extinguishment of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said property . It is further held that this decision shall take effect from 31st of August, 1991 and on this date section 28 aforesaid shall also cease to have ef fect."
The respondents-defendants No.4 to 15 moved an application for redemption of their mortgaged land on 18.12.2004 to the DDOR, which was accepted vide order dated 04.05.2005, appeal whereof preferred by the present petitioners before the EDOR, was dismissed vide order dated 31.08.2006. Consequently , the petitioners filed the revision petition before the Board of Revenue which also met with the same fate as the Member Board of Revenue vide impugned order dated 08.01.2010 dismissed the revision petition holding that the concurrent findings of facts by the lower forum fell within the parameters of the law laid down by the apex Court in Maqbool Ahmad' s case.
Aggrieved from the orders of revenue authorities, the petitioner instituted a civil suit challenging the validity of orders passed by the revenue hierarchy for their declaration as without lawful authority and asked for its consequent effect of declaration relating to the land-in-dispute of permanent owne rship of the petitioners-plaintif fs.
The respondents-defendants No.4 to 15 filed an application under Order VII rule 11, C.P.C., which was accepted, as a result whereof, the plaint was rejected vide order dated 09.12.201 1 holding that the plaintif fs-petitioners have no cause of action. The petitioners challenged the validity of the said order before the appellate Court for seeking declaration with the prayer that the order was illegal, unlawful, based on misreading/non-reading and misapplication of material available on record, however , the learned first appellate Court vide impugned judgment dated 08.05.2012 dismissed the appeal; hence, this revision petition.
3. The contention of the learned counsels for the petitioners is that since effect of the filing of the application for redemption of land-in-dispute was accepted beyond the limitation which was objected in the plaint and it is also settled law that question of limitation whenever is required to be determined shall be decided being mixed question of facts and law after recording evidence of the parties and non-following the settle d principle postulates to declare the exercise of power under Order VII rule 11, C.P.C. illegal and unlawful, hence, same may be set-aside, therefore, the decisions impugned are unsustainable in the eye of law .
4. On the other hand, the learned counse l for the respondents submits that the target date mentioned in Maqbool Ahmad' s case for conferring the rights under Redemption of Mortgages (Punjab) Act, 1913, was 31.08.1991 and no right had accrued to the petitioners before the said date as he failed to get any decree from the Court of competent jurisdiction, therefore, the question of limitation, which in this particular case was a pure question of law, was rightly dealt with by the learned Courts below without inviting the evidence, hence, not committed any illegality and irregularity , thus, this petition is not maintainable and liable to be dismissed. Reliance is placed on Ismail and 22 others v. Rehmat Ali and 15 others (1993 SCMR 92) and 'Durranai and 35 others v. Hamidullah Khan and 15 others ( 2007 SCMR 480 ). In the later judgment, it has been held as under:- "A suit for prescription of title could be fruitful only if mortgagee is fortunate to obtain a decree before 31.8.1991 because, after the aforesaid target date, the right or title of the mortgagor shall not be deemed extinguished. We, therefore, hold that if a mortgagee makes an option to bring a suit for prescription of title, it must be brought so as to obtain a decree before 31.8.1991. A similar view has been taken by this Court in Muhammad Hussain?s case 2004 SCMR 1 137."
'Zwahir Jan and others v. Lal Rehman and others (2010 YLR 2503 ) being identical is also referred to, wherein it was held that, "The petitioner/mortgagees herein though were entitled to ask for their title through prescription much prior to the cut off date and had they not been in slumber and vigilant regarding their rights provided under the law, certainly they would have got such declaration much prior to the target date. Since they filed their suit for the first time in the year 2006, when section 28 of the Limita tion Act was no more there to their misfortune, they cannot ask for the decree of title through prescription and as such the right of the owners/mortgagors to redeem their property cannot be extinguished by efflux of time. Contention of the learned counsel that the said decision of the apex Court was not applicable to their case finds no favour ."
5. I have heard the learned counsels for the parties and gone through record of the case.
6. The admitted fact is that the land was mortgaged on 14.06.1933 and its redemption period as stipulated under the Limitation Act was sixty years, which if calculated from the date of mortgage, becomes 14.06.1993, so, the respondents-mortgagors had the right to apply for redemption of mortgaged land till the said date but before the completion of that period the condition of period imposed in the Limitation Act for redemption of land had already been removed by the honourable Suprem e Court by declaring it repugnant to the Injunctions of Islam, hence, by removing the condition of sixty years for applying to get the mortgaged land redeemed leaves no room for the mortgagees to oppose redemption process initiated on applying even after sixty years. Even otherwise before the judgment of apex Court in Maqbool Ahmad's case , came in the year 1991, declaring the condition to apply for redemption of mortgaged land within sixty years repugnant to Injunctions of Islam, two years were still on the credit of the respondents from the target date/period given in the Limitation Act, hence, petitioners' right to claim themselves owners on account of commitment of default in not applying for redemption of mortgaged land within the time stipulated in Limitation Act and that too required to obtain decree from Court of competent jurisdiction did not arise, therefore, the respondents who were facilitated by the judgment of the apex Court were at liberty to move application for redemption of their mortgaged land at any time provided the mortgagors had not got its full ownership by obtaining any decree before 1991. Here in this case the petitioners' time to apply for getting declaration of their being full owners had not commenced when the verdict of honourable Supreme Court came in field declaring the disadvantageous condition of limitation of getting back the mortgaged land unfortunately extinguished the right of the petitioners/plaintif fs, so, after the judgment of the apex Court the petitioners-plaintif fs lost all the rights, which otherwise were available to them on account of committing default for claiming redemption of mortgaged land from the mortgagors by the mortgagees, therefore, the applic ation filed by the respondents- defendants No.4 to 15 before the DDOR on 18.12.2004 for redemption of their land was competently dealt with by the revenue authorities in accordance with law .
7. Since the limitation imposed by the Limitation Act for redemption of mortgaged land had already been waived off by the honourable Supreme Court, therefore, question of limitation neither could be framed nor condensed in issue nor any evidence in this regard was required to be produced. Therefore, the learned Courts below have not committed any illegality and irregularity by rendering the impugned decisions, thus, this revision petition has no force and is dismissed . No order as to costs.