AHMAD NADEEM ARSHAD, J. Through this Civil Revision, the petitioners questioned the validity and legality of judgment and decree dated 06.10.2010, passed by the learned appellate Court, whereby, while accepting the appeal of respondents dismissed their suit.
2. Shorn of unnecessary details, petitioners/plaintiffs (herein after referred to as the petitioners) instituted a suit for redemption of property measuring 28 kanals 11 marlas situated in khata No.360/300, mouza Notak Mahmeed, Tehsil and District Dera Ghazi Khan against the respondents/defendants and challenged the vires of mutation No.308, mutation No.309, mutation No.310 & mutation No.311 all dated 13.02.1974 by maintaining that their predecessor namely Ghulam Rasool and Kariman Shah sons of Muhammad Bakhsh were the real owners of the suit property; that Kariman Shah died issueless and his legal heir was Ghulam Rasool being sole real brother; that after the death of Ghulam Rasool his son namely Allah Ditta became owner of suit property and after his death petitioners are his legal heirs; that Ghulam Rasool and Kariman Shah deceased mortgaged the property measuring 47 kanals 15 marlas in favour of Budhoo, etc., through mutation No.163 dated 08.01.1900; that said Budhoo etc. transferred/sold partial mortgage rights in favour of Sarwar Shah through mutation No.557 dated 28.03.1904 and partial mortgage rights in favour of Taga through mutation No.1532 dated 22.12.1915; that share of the property to the extent of Sarwar Shah mortgagee was redeemed by the predecessor of the petitioners but the remaining property remained as mortgage with the Hindoos; that after the Partition, mortgage rights were transferred in favour of Central Government, which are now transferred to Provincial Government; that in the year 1973 the Central Government also got transferred the ownership of said property in his name and according to RL-II No.206 dated 07.02.1973, mutation No.308 dated 13.02.1974 was sanctioned; that the Central Government redeemed said property vide mutation No.309 and vide mutation No.310 transferred the property in the names of respondents/defendants No.2 to 10 (herein after referred to as respondents No.2 to 10); that thereafter respondents No.2 to 10 transferred the property to respondents No.11 to 38/defendants No.11 to 38 through mutation No.311; adds that all above mentioned mutations as well as RL-II are illegal, ineffective qua the rights of the petitioners; that the respondents were asked time and again to accept the claim of the petitioners but they refused, which necessitated them to instituted the suit. The suit was contested by respondent No.1/defendant No.1 (herein after referred to as respondent No.1) as well as by respondents No.11 to 15, 17, 18, 20 to 40 by filing separate written statements. They raised many preliminary as well as factual objections. Contention of the respondent No.1 is that predecessor of the petitioners have failed to redeem the property well within time, therefore, their rights were confiscated in favour of the Central government through mutation No.308, hence, the petitioners have no concern with the suit property; that Settlement Department allotted the suit property to respondents No.2 to 10 according to RL-II No.206 through mutation No.310 dated 13.02.1974; that respondents No.2 to 10 transferred the property in favour of respondents No.11 to 38 through mutation No.311 dated 13.02.1974; that the petitioners have no concerned with the disputed property and they instituted the suit on false facts which is liable to be dismissed. Respondents No.11 to 15, 17, 18, 20 to 40 in their written statement have contended that the suit is time barred; that it is well within the knowledge of petitioners that the suit property was allotted to respondents and they also instituted a suit for pre-emption which was dismissed after trial, hence, the petitioners are estopped to instituted the suit because they have waived their rights in the suit property, if any; that the petitioners are not in possession of the suit property and lastly prayed for its dismissal. The learned trial Court, keeping in view divergent pleadings of the parties framed necessary issues on 25.10.1994 and thereafter again formulated the issues on 26.09.2005. The parties were directed to produce their respective evidence in support of their contentions, which they did and got recorded their evidence, pro and contra. The learned Trial Court after providing opportunity of hearing and appreciating the evidence available on record, passed a preliminary decree of redemption in favour of petitioners vide judgment and decree dated 05.03.2009. Respondents No.2 to 52/defendants No.2 to 52 did not assail the judgment and decree of learned trial court, therefore, it attained finality to their extent.
Feeling aggrieved, respondent No.1 i.e., Province of Punjab preferred an appeal which was allowed via impugned judgment and decree dated 06.10.2010 passed by learned appellate Court, resultantly the preliminary judgment and decree of the learned trial Court was set aside and dismissed the petitioners' suit. Being dissatisfied, the petitioners approached this Court through instant Civil Revision.
3. Through order dated 05.10.2020 ex-parte proceedings were initiated against respondent No.46- A. On the report of Tehsildar, that legal heirs of respondents No.12, 16-A, 19, 31, 39 and 49 are not ascertained, this Court vide order dated 17.02.2022 deleted their names from the array of respondents. Rest of the respondents did not turn up despite repeated notices, therefore, ex-parte proceedings are initiated against them. Even otherwise except respondent No.1, rest of the respondents did not assail preliminary decree of redemption passed by learned trial court, meaning thereby they accepted the judgment and preliminary decree dated 05.03.2009 of learned trial court.
4. I have heard learned counsel for the parties at full length and perused the record with their able assistance.
5. Learned Appellate Court without touching the merits of the case allowed the appeal of respondent No.1 and dismissed the suit of petitioners on the ground that the suit property was an evacuee property and allotted under Rehabilitation Laws, therefore, Civil Court has no jurisdiction to entertain the suit and jurisdiction of Civil Court is clearly barred under the Repealed Settlement Laws.
6. Petitioners in their suit maintained that Ghulam Rasool Shah and Kariman Shah were the owners of the suit property who mortgaged the same in favour of Budhoo etc. (Hindus) through mutation No.163 dated 08.01.1900. Said Budhoo transferred partial mortgagee rights through mutation No.557 dated 28.03.1904 in favour of Sarwar Shah which were got redeemed by Ghulam Rasool mortgagor.
Whereas, Budhoo also transferred rest of the partial mortgagee rights to Taga etc., through mutation No.1532 dated 22.12.1915 which remained under his mortgage till partition. The mortgagee rights of Taga etc., were transferred in favour of the Central Government and thereafter the said rights were transferred in the name of Provincial Government (respondent No.1). In year 1973 the ownership was transferred in the name of Central Government through RL-II No.206 dated 07.02.1973 and mutation No.308 was sanctioned in this regard on 13.02.1974. The Central Government through mutation No.309 dated 13.02.1974 redeemed the suit property and transferred it in favour of respondents No.2 to 10 through mutation No.310 dated 13.02.1974. The respondents No.2 to 10 sold the property through mutation No.311 dated 13.02.1974 in favour of respondents No.11 to 38. The petitioners prayed in their suit that they being legal heirs of original mortgagors are entitled for redemption of the suit property but the respondents have refused to do so. The respondents-defendants while accepting the facts narrated supra mainly emphasized that the petitioners-plaintiffs failed to get redeemed the suit property within time, therefore, the same was rightly confiscated in favour of the Central Government and thereafter transferred in favour of the allottees/vendees.
7. Originally, the suit property was mortgaged by the predecessors of the petitioners/plaintiffs through mutation No.163 dated 08.01.1900 in favour of Budhoo who transferred partial mortgagee rights in favour of Sarwar Shah through mutation No.557 dated 28.03.1904 (which is not disputed in the present suit) and in favour of Taga etc., through mutation No.1532 dated 22.12.1915. This Court in case cited as "ALLAH DITTA & OTHERS V. SARDAR KHAN & OTHERS" (PLD 1997 Lahore 716) while following the dictum laid down by august Supreme Court of Pakistan in the case reported as "BANI BEGUM AND OTHERS V. MUHAMMAD AZAM KHAN AND OTHERS" (PLD 2003 SC 235), held that sixty years limitation period as prescribed under Article 148 of Limitation Act, 1908 has to be counted from the date of latest mutation. Therefore, in the present case the date of latest mutation was 22.12.1915, whereby on the said date original mortgagee Budhoo etc., transferred partial mortgagee rights in favour of Taga etc., through mutation No.1532. It is principle of law that the period of limitation stopped running during which defendant has been absent from Pakistan, enshrined in the provisions of Section 13 of Limitation Act, 1908 which is reproduced as under for ease: "13. Exclusion of time of defendant's absence from Pakistan and certain other territories. In computing the period of limitation prescribed for any suit the time during which the defendant has been absent from Pakistan and from the territories beyond Pakistan under the administration of the Federal Government shall be excluded".
Section 13, which is based on the English Law, provides that in computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from Pakistan and from the territories beyond the Pakistan under the administration of the Central Government shall be excluded. In the instant case, suit property which was initially mortgaged in the year 1900 and subsequently in the year 1915 to the evacuee mortgagee who had migrated to India in the wake of independence, the period of limitation stopped running w.e.f. 15.08.1947 as the period of sixty years was not expired till that date.
In the case titled "MUHAMMAD SHAFI V. GHULAM QADIR & others" (PLD 1978 Lahore 71), this Court observed that "at the time of partition in 1947, when the mortgagees migrated to India, neither a period of sixty years had expired with effect from the date of mortgage i.e. 11.07.1899 or a period of six years w.e.f. 27.05.1946 when the Revenue Authorities rejected the mutation. The period of limitation would then stop running in view of the provisions of Section 13 of the Limitation Act".
This Court in a case "ALLAH DITTA & others V. SARDAR KHAN & others" (PLD 1997 Lahore 716) also observed as under: "The mortgagee of the land in question migrated to India in the wake of independence, period of limitation by that time when counted had not expired the period of limitation stopped running w.e.f. 15.08.1948 against evacuee mortgagee on the basis of provisions of S. 13 of Limitation Act, 1908.
This dictum was also followed by this Court in cases titled "ALLAH YAR V. CUSTODIAN OF EVACUEE PROPERTIES, PUNJAB LAHORE and others" (2000 YLR 728) and in a case cited as "GHULAM MUHAMMAD and 03 others V. MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE & 16 others" (PLD 2005 Lahore 119).
8. Through mutation No.308, the property of the petitioners was confiscated in favour of the Government on 13.02.1974. Meaning thereby, up to this date the concerned authorities were treating the ownership rights in the property to be non-evacuee and only mortgagee rights to be evacuee property. Obviously, this entry was made by virtue of the acquisition of evacuee rights in land under Section 04 of the Displaced Persons (Land Settlement) Act, 1958. The August Supreme Court of Pakistan in "Muhammad Khan V. Chief Settlement and Rehabilitation Commissioner" (PLD 1962 SC 284), considered the effect of evacuee laws and section 4 of the Displaced Persons (Land Settlement) Act, 1958 on the rights of Muslim Pakistani citizens in respect of property subject to mortgage and held that a notification under the last mention section in no way, destroyed the rights of non-evacuees in land in which evacuee had any right under mortgage. Therefore, it cannot be disputed that the successors-in-interest of Ghulam Rasool Shah and Kariman Shah continued to have a right to the equity of redemption in the suit property, notwithstanding the acquisition of evacuee's interest therein by the Central Government. The position, therefore, is that the Central Government merely stepped into shoes of the evacuee and was vested only with the rights of mortgage and nothing more.
9. Indeed, the Settlement and Rehabilitation Commissioner, West Pakistan, Lahore, recognized this position and issued instructions for the redemption of mortgages by locals with evacuees through Memo No.6883-59/7042 R(P) dated 08th December, 1959 which reads as under: "The land mortgaged by locals with evacuees has remained excluded from allotment under the Rehabilitation Settlement Scheme. The question of its final disposal has been considered and it has been decided that the amount (mortgage money) due to the evacuees in such cases should be recovered by the local rehabilitation authorities within their respective areas of jurisdiction. The needful will be done under section 25(2) (L) of the Pakistan (Administration of Evacuee Property)
Act, 1957. Powers under this subsection have since been delegated to the Deputy Rehabilitation Commissioners and Assistant Rehabilitation Commissioners by the Custodian of Evacuee Property, vide Custodian's order dated 28-8-1959/17-11-1959(copies enclosed). The Assistant Rehabilitation Commissioners concerned should immediately issue a notice to the local mortgagors of this category to redeem the properties involved within one month, failing which the evacuees right in the properties shall be auctioned under section 25(2) (s) of the Pakistan (Administration of Evacuee Property) Act, 1957. Cases requiring disposal by means of auction should be reported to the undersigned after one month. The amounts which may be recovered in consequence of the redemption should be deposited in the compensation pool constituted under section 5 of the Displaced Persons (Land Settlement) Act, 1958."
10. In case of failure on the part of the mortgagors to redeem the mortgage after the issue of notice as instructed in the aforesaid memo, only "the evacuee's right in the properties shall be auctioned".
Clearly, therefore, the Government was not claiming any right beyond the mortgage rights in respect of said mortgaged properties in favour of the evacuees. The memorandum No.1980- 60/1489-R (P) dated 22nd April, 1960, described the position in cases in which redemption of land mortgaged by non-evacuees with evacuees is barred by Article 148 of the Limitation Act, 1908 and declared that such property may thus be treated as purely evacuee property and utilized for the settlement of pending claims, which may with advantage be reproduced as under: "A question had arisen as to what will be the position in cases in which redemption of land mortgaged by non-evacuees with evacuees is barred by Article 148 of the Limitation Act, 1908.
Evidently the question of redeeming the land in such cases does not arise. Such land may thus be treated as purely evacuee property and utilized for the settlement of pending claims for agricultural land of the displaced persons. It has, however, been decided that the period of sixty years should be counted up to the date on which a particular non-evacuee mortgagor applies for redemption in terms of this office circular Memorandum No.6883-59/7042-R (P), dated the 8th December, 1959, Deputy Commissioner, Gujrat and No.11-SO, dated the 8th January, 1960, and Memorandum No. dated the 11th February, 1960, respectively."
11. It is, therefore, clear that the basis for claiming full ownership rights in the land in favour of the Government was that the period of limitation for suit for redemption as provided in Article 148 of the Limitation Act, 1908 had expired with the result that the equity of redemption stood extinguished by virtue of Section 28 of the Limitation Act, 1908. For reference, both are reproduced as under: "Article 148.
Description of SuitPeriod of LimitationTime from which period beings to run.
Against a mortgagee to redeem or to recover possession of immovable property mortgaged.[Sixty years]When the right to redeem or to recovery possession accrues: Provided that all claims to redeem arising under instruments of mortgage of immovable property situate in Lower Burma which had been executed before the first day of May, 1863, shall be governed by the rules of limitation in force in that Province immediately before the same day.
"Sec.28 Extinguishment of right to property. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."
Note: The Supreme Court of Pakistan in the case titled "Maqbool Ahmad vs. Federation" (1991 SCMR 2063) declared the provision of Section 28 of the Limitation Act, 1908 repugnant to injunction to Islam with effect from 31.08.1991 and this section was omitted by Act II of 1995 (PLD 1996 Central Statue 1296).
12. In the light of above discussion, the period of limitation stopped under Section 13 of the Limitation Act, 1908, on 15.08.1947. The aforesaid memorandum of the Chief Settlement and the Rehabilitation Commissioner dated 08th September, 1959, wherein the Government acknowledged the right of redemption of the petitioners and more particularly the entry in the revenue record showing the petitioners as owners/mortgagors and the Central Government as mortgagee vide mutation No.308 dated 13.02.1974, constituted acknowledgments in writing before the expiration of the period of limitation, u/s 19 of the Limitation Act, 1908 with the result that a fresh period of limitation accrued in favour of the petitioners. For ease, section 19 of the Act ibid is reproduced as under:
19. Effect of acknowledgment in writing.---(1) Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated; oral evidence may be given of the time when it was signed; but, subject to the provisions of the Evidence Act, 1872, oral evidence of its contents shall not be received."
13. Mutations were, therefore, effected only irrespective of mortgagees right in favour of the Government as the period of limitation for redemption of the mortgage had not yet expired.
Mutation No.309 dated 13.02.1974 was effected on the ground that period of limitation for redemption had by then expired and as such the Central Government was shown as the full owner of the suit property. Mutation entry No.308, however, in acknowledging petitioner's predecessor as the mortgagor, constitutes acknowledgment of liability and right to equity of redemption possessed by them which clearly constitutes acknowledgment for the purposes of Section 19 of the Limitation Act, 1908.
14. Under Section 4 of the Displaced Persons (Land Settlement), Act 1958, evacuee lands acquired, vested in the Central Government or the Provincial Government and by virtue of Section 5 of the said Act form part of the compensation pool for the purpose of granting compensation to displaced persons whose claims have been verified. These lands forming part of the compensation pool were to be administered by the Chief Settlement Commissioner and other Officers in the Settlement Organization. Accordingly, by statutory provisions, the Chief Settlement Commissioner acted as Agent for the Government in the management of the properties in the compensation pool. It follows, therefore, that mutation No.310 being affected in pursuance of this policy instructions in writing, it would sufficiently constitute as an acknowledgment on behalf of the Central Government and would, therefore, bind the respondents. In this view of the matter, a fresh period of limitation had commenced with effect from 13.02.1974. Petitioners instituted their suit on 10.03.1992, therefore, their suit having been instituted within sixty years from the aforesaid date, was well within time.
15. From the perusal of the plaint it appears that the petitioners have prayed for a declaration that the mutations treating the suit property to have wholly vested in the Government were illegal and that they be declared to be the owner of the equity of redemption. The suit instituted by the petitioners is a suit for redemption and the parties to the suit were on notice about the real nature of the suit.
16. Learned appellate court dismissed the suit merely on the ground that the jurisdiction of civil court to try the suit stand ousted as the property has been taken to be evacuee and allotted under the Rehabilitation Laws.
17. No doubt under Section 25 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Act "1958") and Section 41 of the Administration of Evacuee Property Act, 1957 (hereinafter referred to as the Act "1957") barred the jurisdiction of Civil Court. But it is also a matter of fact that both the acts have been repealed through the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975).
18. This Court in a case titled "Iqbal Khan and 9 others vs. Shahid Ullah Baig and another" (1989 CLC 1265) held that "after the repeal Act, XII of 1957 the only forum to determine whether a property is available property or not, is the Civil Court and not the residuary authorities" and in another case titled as "Mst. Kubra Begum and others vs. Shamas Din and another" (2014 YLR 1456) held that "after the repeal of settlement laws the ultimate jurisdiction only vests with Civil Court". Peshawar High Court in a case titled as "Abdul Rashid and others vs. Abdul Ghani and others" (2011 MLD 787) held that "in view of repeal of evacuee laws or otherwise, too, civil court alone could take cognizance of the matter so as to judge veracity of the order." It was further held that if the vires of orders and actions of settlement authorities are in question, then the bar of jurisdiction contained in Section 25 of Land Settlement Act would not operate in that there has to be a forum to resolve such controversy".
19. By virtue of the provisions of Section 3 of Act, 1957, no person or property not treated as evacuee or as evacuee property immediately before the first day of January, 1957 could be treated as evacuee or, as the case may be, as evacuee property, on or after the said date. For reference, Section 3 of the Act, 1957 is reproduced here under:- "3. Property not to be treated as evacuee property on or after 1st January, 1957. (1)
Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January, 1957 shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date.
(2) Nothing in sub-section (1) shall apply,--
(a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or
(b) to any property which is occupied, supervised, or managed by a person whose authority or right so to do after the twenty-eighth day of February, 1947, has not been accepted or approved by the Custodian.
20. The status of a person or of a property as an evacuee or as an evacuee property was to be determined with reference to the Act, 1957. Sub-section (1) of Section 3 provided first day of January, 1957, as the target dated by providing that no person or evacuee property not treated as evacuee or as evacuee property immediately before first day of January, 1957 shall be treated as an evacuee or an evacuee property subject to the exclusion of the cases mentioned in Sub-section
(2) whereof, namely, (a) any person or any property in respect of which action had commenced or the proceedings were pending (b) any property which was occupied, supervised or managed by a person whose authority or right so to do after 12th day of February, 1947, had not been accepted or approved by the custodian. The functionaries under the Act, 1957 and Act, 1958 did not enjoy unfettered and unbridled power to treat any person or property as an evacuee or evacuee property but they were to act within the bounds delineated in the relevant provisions of the relevant statue. There was nothing before the learned appellate court to indicate that the land had been treated as evacuee property by a competent authority prior to January, 1957. The various provisions of Act, 1958 and the Act, 1957 indicate that the jurisdiction to take over any property as an evacuee property or to allot the same as part of compensation to any claimant vested in the custodian or the settlement authorities provided the person and the property fell within the purview of the definition of the terms "evacuee" or an "evacuee property" or otherwise.
21. Admittedly the status of the property that the same was mortgaged is admitted. According to copy of record of rights for the year 1968-69 suit property was incorporated as mortgaged land with the Central Government. Through mutation No.308 suit property was confiscated in favour of the Central Government on 13.02.1974 and through mutation No.309 dated 13.02.1974 land measuring 214-kanals 12-marlas was sanctioned in which the suit property measuring 28-kanals 11-marlas was also included. Only the mortgagee rights could be assumed by the Central Government and the Central Government was not empowered to take the proprietary rights. The mortgagee rights of the evacuee could not be treated as evacuee property as the original owners were local Muslims and there was no law to divest these local Muslims of their right of ownership of such property. The only circumstances which could deprive them from the rights was the expiry of limitation for redemption of the land or under some order of any competent authority or the legal proceedings for recovery of mortgage money and in case of inability of the land owners to pay that amount, then the rights of the ownership could be snatched from them.
22. The ownership rights of the petitioners with regard to suit property were non-evacuee, whereas the mortgagee rights of the suit property were evacuee. Therefore, Section 4 of the Displaced Persons (Land Settlement) Act, 1958 in no way destroyed the rights of non-evacuees in land in which evacuee had any right under mortgage.
23. Learned Trial Court, keeping in view facts & circumstances of the case, rightly declared the petitioners to be the owners of equity of redemption in the suit land and passed a preliminary decree for redemption of the mortgaged property. Learned Appellate Court failed to consider said aspect of the case and merely non-suited the petitioners on the ground that the suit property was an evacuee property and allotted under Rehabilitation Laws, therefore, Civil Court has no jurisdiction to entertain the suit and completely overlooked the question involved in the suit in an arbitrary and fanciful manner.
24. For the foregoing reasons, this petition is allowed. Consequently, impugned judgment & decree of the learned Appellate Court dated 06.10.2010 is set aside and the preliminary decree for redemption of the mortgaged property is restored and learned trial court is directed to prepare preliminary decree for redemption of mortgaged property under Order XXXIV, Rule 7, C.P.C. in Form No.VII-B of Appendix "B", C.P.C. and take further proceedings as required by law. In the circumstances of the case there shall be no order as to costs.
25. Before parting with this judgment, it is observed that respondents No.11 to 38 are bona fide purchasers for value of the suit property which was allotted as far back as 1974 to respondents No.2 to 10. They are being depriving of it at this late stage of the day. They deserve to be properly compensated. It is therefore, observed that they may apply to Member, Board of Revenue/Notified Officer for transfer of alternate land, out of the evacuee land, now forming part of Provincial Government Pool. In case such an application is moved, it shall be treated to be a pending matter within the meaning of Evacuee Laws (Repeal) Act, 1975 and necessary orders from transfer of available land shall be passed in their favour.