MUHAMMAD SHAN GUL, J. Through this judgment the titled civil revision is sought to be decided.
2. On the last three dates of hearing i.e. 04.11.2020, 26.1.2022 and 15.2.2022 no one appeared on behalf of the petitioners and only requests for adjournm ents were repeatedly made. Today again the same position obtains but this time no adjournment is forthcoming and, therefore, this civil revision is being taken up and decided on its own merits.
3. This civil revision has been filed against judgment and decree dated 24.1.2020 passed by a learned Additional District Judge by virtue of which the appeal filed by respondent No.1 herein agains t decision of the trial court dated 02.12.2019 was accepted and suit filed by her was decreed.
4. Brief facts of the case are that the petitioners before this Court filed a suit for declaration on 10.6.2014 claiming that the suit property (measuring 05 kanals situated at Mouza Qasba D.G. Khan, Khata No.4031, 4041, Khatooni No.4034, H. No.93, Khasra No.5044, Block No.14) was originally owned by the father of respondent No.1 who mortgaged the same in favour of respondent No.2, Muhammad Aslam through a registered mortgage deed in the year 1962 for a period of 10 years against an amount of Rs.4700/- and possession of the property was transferred.
It was further averred by the petitioner that the property in question was never sought to be redeemed by the father of respondent No.1 and thus respondent No.2 became owner of the property who, in turn, sold out the same to the present petitioner in the sum of Rs.25,00,000/-. It was contended by the petitioner that respondent No.2 promised to get the land transferred in his name but reneged. That after the death of respo ndent No.2 it transpired that the suit property was still in the name of the father of respondent No.1 and the name of respondent No.2 only appeared in the revenue record as a mortgagee and it is, therefore, that the suit for declaration as owner in possession was filed by the petitioners.
5. On the other hand, respondent No.1, Mst. Shehzadi Parveen being the legal owner/daughter of mortgagor denied the allegations through her written statement and contended that the suit property was owned by her late father and the same was never sold by him. Interestingly , respondent No.2 through his written statement also denied the sale of the property in favour of the petitioner and prayed for dismissal of the suit.
6. In addition, respondent No.1 being the legal owner/daughter of mortgagor filed her own independent suit dated 14.10.2015 claiming therein that the property was owned by her real father which was never gotten redeemed by him and that the petitioners were illegal occupants and that she had approached respondent No.2 for redemption of the property in question and upon refusal she had filed the suit for redemption of property as also possession.
7. Both suits were consolidated by the court and consolidated issues were framed on 15.10.2019 as under and both parties produced their respective evidence: "1). Whether the plaintiff is owner in possession of the suit detailed in headnote and entitled for decree for redemption as prayed for?OPP 2). Whether the plaintiff has no cause of action to file this suit?OPD 3). Whether the plaintiff is not legal heirs of Ghous Muhammad?OPD 4). Whether the plaintiff has not come in the court with clean hands?OPD 5). Whether the suit of plaintiff is barred by law?OPD 6). Whether plaintiff is stopped by his words and conduct to file this suit?OPD 7). Whether the suit is not maintainable in its present form?OPD 8). Whether the suit of plaintiff is time barred?OPD 9). Whether the suit is false, frivolous has been filed to harass the defendant and defenants are entitled to special cost under order 35-A CPC?OPD 10). Whether defendants are entitled for decree for specific performance in suit titled as Farooq etc. vs. Ghous Bakhsh etc.?OPD 11). Relief."
It is pertinent to mention here that the right of the petitioner to produce evidence was closed vide order dated 26.11.2019 (this order was never challenged and this is of the essence) and ultimately the learned trial court dismissed both suits vide judgment and decree dated 02.12.2019.
8. Respondent No.1 being aggrieved by the said judgment and decree dated 02.12.2019 filed an appeal before a learned Additional District Judge and vide judgment and decree dated 24.1.2020 her appeal was allowed and her suit for redemption along with possession was decreed. Most importantly yet alarmingly , the present petitioner Farooq Azam did not file any appeal against the dismissal of his suit vide judgmen t and decree dated 02.12.2019.
When this is viewed in the context of the fact that he did not either challenge the order whereby his right to produce evidence was closed it becomes clear that the petitioner has no case because having produced no evidence to prove his claim he could not have possibly filed this civil revision especially when he did not challenge the dismissal of his suit by way of judgment and decree dated 02.12.2019.
9. I have perused the judgment and decree of the learned trial court as also of the learned appellate court and am in a position to straightaway observe that the learned appellate court rightly allowed the appeal of respondent No.1 by upholding her right to redeem the property in question in terms of Article 148 of the Limitation Act, 1908. The suit for redemption of the suit property was filed by respondent No.1 within the prescribed period of 60 years. In this regard the law laid down in the case of "Khushi Muhammad and others v. Muhammad Ashfaq and others"
(PLD 2014 Lahore 26) is very instructive and is relied upon. Also the law laid down in "Hakeem Khan and 6 others v . Anwar Muhammad Khan and 28 others" ( 2014 CLC 1252 ) is relied upon with advantage.
10. Furthermore, the learned appellate court rightly noted that there was no stipulation in the entire registered mortgage deed with regard to the assertion 'that in case of default in seeking redem ption of the suit property within 10 years the ownership of mortgaged property would vest in the mortgagee'. On the said premise the learned appellate court rightly noted that the learned trial court had placed a wrong construction on the said mortgage deed and which had led the trial court to erroneously dismiss the suit filed by respond ent No.1. The learned appellate court rightly held the Punjab Redemption and Restitution of Mortgaged Lands Act, 1964 to be applicable in the present matter since the suit property is situated within the prescribed limits ordained in Section 2(e) of the Punjab Redemption and Restitution of Mortgaged Lands Act, 1964.
11. What is also important in the present context is the ratio of the case reported as "Khushi Muhammad and others v. Muhammad Ashfaq and others" (PLD 2014 Lahore 26) wherein the plea that the mortgage deed contained a clause to the effect that the mortgagee would become owner in possession of property on account of non-payment of mortgage money upon expiry of stipulated period of six months was to be treated as sale was repelled on the ground that right of redem ption as contained in Section 60 of the Transfer of Property Act, 1882 was a statutory right affirming the principle 'once a mortgagee always a mortgagee' and that such a clog in a mortgage deed compromised the mortgagor 's right of redemption and was thus illegal and void. It has been held at page-36, "It has been variously held by the Superior Courts that any clog on redemption of the mortgage will be invalid being violative to the law and equity . Section 60 of the Act ibid unequivocally affirms the right of redemption in all mortgages. following the principle `once a mortgage always a mortgage'. Reliance be made upon Suleman and 3 others v. Custodian, Evacuee Property , West Pakistan, Lahore and 2 other s (PLD 1971 Lahore 77). The contention of learned counsel for the respondent that the transaction of mortgage in dispute should be treated as sale and the respondent be treated as owner in possession of the disputed shop for non-payment of mortgage money I on the expiry of stipulated period of six months therefore is devoid of any force for the simple reason that the impugned stipulation is a clog on the petitioners' right of redemption and as such repugnant to law and void. In this regard reliance is placed upon an observation made by Lord Hanley in a case titled Vernon v. Bethell (2 Eden.1 13) which reads below:-- "The Court, as a Court of Conscience is very jealous of persons taking securities for a loan and converting such securities into purchases. And, therefore, I can take it to be an established rule, that a mortgagee can never provide at the time of making the land for any event or condition on which the equity of redemption shall be discharged and the conveyance absolute. And there is great reason and justice in this rule for necessitous men or not, truly speaking, free men, but to answer a present exigency , will submit to any terms that crafty may impose upon them."
12. Most importantly , however , the fact that respondent No.2 who was the original mortgagee of the suit property and from whom the petitioners alleged to have derived their title not only denied the sale of property in their favour but he also did not challenge the judgme nt of the learned appellate court dated 24.1.2020 in favour of respondent No.1 and against respondent No.2 is crucial and fatal!
13. In view of what has been noted above, the judgment passed by the learned appellate court dated 24.1.2020 is in line with trite and acknowledged law and is, therefore, to be preferred over the judgment passed by the learned trial court in the matter .
14. Seen from any angle the present revision petition merits to be dismissed and is accordingly dismissed.