IJAZ ANWAR, J. This civil revision petition is filed against the concurrent judgments and decrees dated 30.06.2011 passed by the learned Civil Judge-IV, Swabi and dated 30.05.2014 passed by the learned Additional District Judge-IV, Swabi, whereby, suit and appeal filed by the petitioners were dismissed.
2. In essence, the petitioners have filed a suit for possession through redemption, mesne profit and permanent injunction against the respondents before the learned Senior Civil Judge, Swabi (fully described in the plaint). The respondents/defendants were summoned who appeared and contested the suit by filing written statement. Thereafter, the learned trial Court framed issues and parties were directed to produce and record evidence in support of their respective case, which they produced and recorded. After hearing arguments, the learned trial Court has dismissed the suit of the petitioners/plaintiffs vide judgment and decree dated 30.06.2011. Being aggrieved, they filed appeal before the learned District Judge, Swabi and vide the impugned judgment and decree dated 30.05.2014, the learned Additional District Judge-IV, Swabi has dismissed the appeal and maintained the judgment and decree of the learned trial Court. Hence, this civil revision petition.
3. Arguments heard and record perused.
4. The admitted position in the instant case is that the predecessor of the petitioners/plaintiffs namely Dero has mortgaged the suit property in the year, 1895 through mutation No.1477 decided on 01.06.1895 in favour of the predecessor of the respondents-defendants namely Sarkar s/o Shehenshah and from the said date, the suit property in in the possession of the respondents through inheritance. The revenue record confirms the ownership of the petitioners/plaintiffs while the respondents/defendants are recorded as mortgagee in the column of cultivation throughout.
The suit of the petitioners was concurrently dismissed by the learned two Courts below on the ground that the suit was instituted after about 111 years in the year, 2006 and is thus, hopelessly barred by time in view of Section 148 of the Limitation Act which provides for institution of redemption suit within sixty years.
5. It is evident from the record that the respondents/defendants are enjoying the possession of the suit property since inception of the mortgage and such mortgage, legally speaking, is usufructurary mortgage in terms of Section 58 of the Transfer of Property Act, 1882. Clause (d) of Section 58 of the Transfer of Property Act, 1882 defines "usufructurary mortgage" as follows:- "58(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] part 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. Section 60 of the Transfer of Property Act, 1882 provides 'right of mortgagor to redeem the mortgaged property'. Section 20 of the Limitation Act, 1908, being relevant, is reproduced for convenience as under:- "20. Effect of payment on account of debt or of interest on legacy. 1) Where payment on account of a 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 authorised agent, a fresh period of limitation shall be computed from the time when the payment was made: Provided that an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
(2) Effect of receipt of produce of mortgaged land. 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).
Explanation. Debt includes money payable under a decree or order of Court".
Thus, in terms of Section 20 of the Limitation Act, 1908, receipt of produce during the subsistence of mortgage gave a fresh cause of action to the mortgagor on the receipt of produce of every harvest and it is deemed acknowledgment. This view has been enunciated in the case of "Abdul Haq (1999 SCMR 2531)". In Abdul Haq case, the apex Court, while dealing with a similar question, held as under:- "As mentioned earlier, the mortgage in hand is created and continues throughout 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 existing circumstances, no period of limitation would run against the mortgagor 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.
On the parity of reasoning aforesaid, the learned Single Judge held the view that when the mortgagee is in possession of the mortgaged property and in receipt of the usufruct, such receipts are treated as payments to the mortgagee for the purpose of limitation regardless of what the intention of the party receiving the produce may be or might have been. Subsection
(2) of section 20 of the Limitation Act, was held to have not "expressly referred to the intention of such party". Particular insertion of subsection (2) of section 20 and the specific words thereof were construed to render it altogether self-contained and even independent of the proviso preceding it concerning handwriting or signature of the persons making acknowledgement.
Therefore, the learned Single Judge concluded that simple possession of mortgagee and the receipt of rent or produce by him are sufficient ingredients to constitute absolute acknowledgement".
7. The same view was followed by a Division Bench of this Court in the reported judgment "2002 CLC 1553".
8. In the case titled "Bilawar Khan Vs. Amir Sabar Rahman and others (2013 PLD Peshawar 38)", a Single Bench of this Court has held that "mortgagee having enjoyed possession of mortgaged land for more than 60 years or more would have recovered through its usufruct more than his mortgage money, thus, he could not be bestowed with ownership on expiry of 60 years". In the said case, it was further held that "Section 28 of the Limitation Act having been declared to be repugnant to injunctions of Islam in Maqbool Ahmad's case (1999 SCMR 2063), therefore, on expiry of period prescribed by law for a suit for possession of any property, the right of owner shall remain intact and will not be extinguished".
9. This view was again reiterated in the cases titled "Farid Khan Vs. Fazla Qadir and others (PLD 2019 Peshawar 171), Amal Khan and others Vs. Gul Zaman (2013 YLR 2738), Durranai and others Vs. Hamidullah Khan and others (2007 SCMR 480) and Ahmad Khan and others Vs. Abdur Rehman and others (2009 SCMR 191)".
10. In view of the above and as per the revenue record brought on record by the petitioners/plaintiffs, being owners of the disputed property and the respondents/ defendants, being in possession of the same as mortgagee, the claim of the petitioners for redemption is well maintainable. Accordingly, this civil revision petition is allowed. The impugned judgments and decrees of both the learned Courts below are set-aside and a preliminary decree is passed in favour of the petitioners and against the respondents for redemption of mortgaged property. The petitioners shall deposit in the Court the mortgage amount within a period of sixty days from the date of decree. Office shall draw a preliminary decree sheet strictly in accordance with law.