IJAZ ANW AR, J. This civil revision petition is filed against the concurrent judgments and decrees dated 30.10.2010 of the learned Civil Judge-III, Swabi and dated 07.02.2012 of the learned Additional District Judge-III, Swabi, whereby , suit and appeal filed by the petitioner and proforma respondents were dismissed.
2. Arguments heard and record perused.
3. Perusal of the record reveals that the predecessors of respondents No.27 to 47 (hereinafter to be referred as "the original owners") were the owners of the suit property comprising khasra No.2298 measuring 15 Kanal and 12 Marla situated in the Revenue Estate of Mauza Kotha Tehsil & District Swabi. The record further transpires that their predecessors have mortgaged the suit property somewhere in the year, 1870. It appears that the contesting respondents No.1 to 13 (hereinafter to be referred as "the original defendants") purchased the mortgaged rights from the original mortgagees vide mutations No.14091 attested on 01.03.1974 and No.16353 attested on 28.11.1981 and thereby claimed ownership of the suit property as they were in possession of the suit property as tenants since long. The original plaintif fs filed a suit for declaration claiming ownership of the suit property and questioned the above mutations as illegal and violative of their rights. In addition, prayer for possession, additional prayer for possession through redemption and recovery of produce from 1998 till the year, 2000 and onward was also made. During the pendency of the civil suit, the present petitioner purchased the suit property from the original plaintif fs through registered deed No.113 attested on 19.10.2005, registry No.2 7 attested on 15.06.2006 and registry No.129 attested on 05.12.2005, regarding which mutations No.3562, 3583 and 3584 were duly entered and attested. The petitioner , thus, sought impleadment in the suit which was duly allowed and accordingly an amended plaint was filed. The record further transpires that except the original defendan ts, the remaining respondents submitted their cognovits. The suit of the petitioner/proforma respondents was dismissed mainly on the ground of limitation and prescriptive rights accrued in favour of contesting respondents, as according to the learned Civil Judge, the suit is filed after more than about 160 years. Similar was the fate of appeal filed by the present petitioner .
4. There are certain very important legal questions involved in the instant case, firstly , that by dent of Article 148 of the Limitation Act, 1908, whether suit for redemption of mortgage of the petitioner was barred by time and secondly , whether when once the mortgagee has sold out his mortgaged rights, fresh period of limitation would start from the date of attestation of such mutations.
5. Vide the above mutations purchasing mortgage rights, the respondents stepped into the shoes of the previous mortgagees, thus, a fresh period of limitation would be computed from the date of subrogation. It is evident from the record that the original plaintif fs were enjoying the possession of the suit property since inception of the mortgage. Such mortgage, by legally speaking, is usufructuary mortgage in terms of Section 58 of the Transfer of Property Act, 1882. Clause (d) of Section 58 of the Act ibid, being relevant, is reproduced as under:- "(d) Usufructurary mortgage. Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to mortgagee, and authorizes him to retain such possession until payment of the mortgagee-money , and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money , or partly in lieu of interest or partly in payment of the mortgage-money , the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee".
6. Similarly , Section 60 of the Act ibid provides right of the mortgagor to redeem the property . Thus, in terms of Section 20 of the Limitation Act, 1908, receipt of the produce during the persistence of mortgage gives fresh cause of action to the mortgagor on the receipt of produce on every harvest and it is deemed as an acknowledgment.
Reference can be made to the cases titled "Abdul Haq Vs. Ali Akbar and others (1999 SCMR 2531 )" and "Khushi Muhammad and others Vs. Muhammad Ashfaa and others ( PLD 2014 Lahore 26 )".
7. Merely because the respondents have purchased the mortgage rights would not give them any right of a rightful owner by efflux of time in view of the celebrated principle "once a mortgage is always a mortgage" . The Hon'ble Supreme Court of Pakistan, while firming views of an order of this Court in the case of Abdul Haq supra, reproduced the same with approval, as under:- "Mortgage, the subsistence thereof and prescription of title by the mortgagee, are the conditions that militate against the right of a rightful owner , therefore, the Courts of law, which also are the Courts of equity , should construe various transactions concerning mortgage in such a liberal way that the right of rightful owner survives and the one who has enjoyed the possession and produce for nearly sixty years and had recovered the amount manifold, should not be allowed to get away with the land as well".
In the same judgment dealing with a similar situation, wherein too, mortgagees' rights were purchased and it was termed in the above referred judgment as a novation of contract, because the old mortgagees were ousted and new mortgage was created in favour of the respondents. Relevant para is reproduced as under:- "As mentioned earlier , the mortgage in hand is created and continues through out under the conditions that squarely fall within the parameter contemplated by subsection (2) of section 20 of the Limitation Act, and hence amounts to acknowledgement under section 20(1) of the Limitation Act; which acknowledgement is repeated with every crop every year, if not twice a year. Thus, with the existin g circumstances, no period of limitation would run against the mortg agor at all beyond one year. The property can be redeemed to any stage without the mischief of the law of Limitation barring redemption after the passage of sixty years."
8. Besides, Section 28 of the Limitation Act, 1908 has been declared against the injunction of Islam by the Hon'ble Supreme Court of Pakistan in the case titled "Maqbool Ahmed Vs. The Government of Pakistan (1991 SCMR 2063 )", so no question of attaining title by mortgagees on prescription on the expiry of sixty years would arise.
9. In the instant case, admittedly , till date as per statement of Patwari Halqa, in terms of Jamabandi 1999-2000 (Ex.Pw-1/1), the original plaintif fs were recorded as mortgagor , while the original defendants were recorded as mortgagees and when they purchased the mortgage rights from the original mortgagees, they were recorded as tenants of the suit property . Admittedly , the mortgagees have failed to get any decree in their favor within the target date given in Maqbool Ahmed's case i.e. 31.08.1991. As such, they cannot be given the protection of defunct law.
Reference can be made to the case titled "Durranai and 35 others Vs. Hamidullah Khan and 15 others (2007 SCMR 480 )". As such, petitioner has every right to redeem the suit property .
10. The nutshell of the above discussion is that the concurrent findings of the learned Courts below , non-suiting the petitioner and dismissing the suit, is based on wrong premises of law and facts and are the result of misreading of evidence and misinterpretation of the record and law .
11. For the reasons stated above, this revision petition is allowed and disposed of in the manner that the impugned judgments and decrees of the learned Courts below are set-aside and suit, filed by the present petitioner , is decreed in terms that he is entitled to a decree of redemption of the mortgage. A preliminary decree in terms of Order-XXXVI Rule 7 of Civil Procedure Code, 1908 is, therefore, passed in favor of the petitioner and against the contesting respondents and that he shall be put in possession of the suit property free from all encumbrances.