SULTAN TANVIR AHMAD, J. Through the present Civil Revision, filed under section 115 of the Code of Civil Procedure, 1908 (the 'Code), revision-petitioner has assailed the judgment and decree dated 02.12.2006 passed by the learned District Judge, Dera Ghazi Khan whereby, the judgment and decree dated 22.02.2006 passed by the learned Civil Judge 1st Class, Dera Ghazi Khan has been upheld and Civil Appeal No.69/13 of 2006 has been dismissed.
2. Brief facts of the case are that revision-petitioner instituted a suit on 06.02.2003 for declaration and redemption of property situated in khata No.63, 64 and.87 of Mouza Rohri, Teshil and District, Dera Ghazi Khan, as further detailed in the suit (the suit land'), with the averments that the suit land was mortgaged in favor of one Punjomal son of Raja Kaival son of Jaisa (the 'evacuee') by the then owner Ahmad son of Laal and later on the evacuee left Pakistan in the year 1947 and the plaintiff is the owner of suit land as he acquired the rights of the mortgagor in due course; that Fail Muhammad son of Noor Ahmad was allotted the suit land through Mutation No. 911 dated 16.12.1966 by respondent No. 1 after acquiring the evacuee rights, thus, jumped into the shoes of mortgagee / the evacuee which remained subject to rights of redemption of the revision-petitioner. The respondents Nos.16, 17, 18, 20, 23 to 26 filed the contesting written statement, whereas, respondents Nos. 22, 27 to 35, 38, 39 and 40 conceded the most of contents of the suit. Out of the propositions of law and facts, affirmed by the revision-petitioners but denied by the rivals, the following issues were framed: -
1. Whether the plaintiff is owner of the disputed property? OPP
2. Whether the plaintiff is entitled to a decree for redemption of the disputed property? OPP
3. Whether entries in the revenue record are against facts and void? OPP
4. Whether the suit is within time? OPP
5. Whether the suit is not maintainable in its present form? OPD
6. Whether the suit has been improperly valued? If so, what is its correct valuation? OPD
7. Relief.
3. The parties led their respective evidence. The revision-petitioner appeared as PW. 1 and one Muhammad Usman appeared as PW.2. As documentary evidence, Exh. P-1 to Exh. P-19 are produced, which include mutations and missal haqeeqat bandobast and other revenue record as well as Mark-A to Mark-C are also on record. In rebuttal, Allah Ditta son of Muhammad Bakhsh appeared as DW. 1 and he produced a copy of register haqdaran zameen-missal haqeeqat for the year 1872 as Exh. D-1.
4. The learned trial Court gave issue-wise finding and vide judgment and decree dated 22.02.2006 concluded the case as follows:- "keeping in view of my findings and discussion upon the above said issues supra, the suit of the plaintiff is hereby dismissed, with no order as to cost. However, plaintiff is directed to submit requisite court fees worth of Rs.15000/- within 30 days of this judgment, otherwise, his suit/plaint will be considered as dismissed/rejected for non-submission of court fees also. File be consigned to the record room after due completion."
The revision-petitioner assailed the above judgment and decree through Civil Appeal No.69/13 of 2006. The learned Appellate Court, vide judgment and decree dated 02.12.2006, upheld the findings of learned trial Court on issues Nos. 1 to 5, however, disagreed with the findings of learned trial Court as to issue No.6. As a result of judgment-in-appeal, suit stood dismissed. Finding of learned Appellate Court to the extent of issue No. 6 was not assailed, hence attained finality. The revision- petitioner has assailed the judgments and decrees of learned two Courts below to the extent of dismissal of suit and findings on issues Nos. 1 to 5.
5. Mr. Yafis Naveed Hashmi, learned counsel for the revision-petitioner has submitted that the suit land was mortgaged by Ahmad son of Laal to the evacuee-Punjomal in the year 1887-88 and the mortgage rights were allotted to Faiz Muhammad son of Noor Muhammad, who subsequently sold the rights to the respondents, which remained subject to redemption rights of revision-petitioner; that the revision-petitioner has acquired the suit land through Mutation No.891 / Exh. P-8 and Mutation No.899 / Exh.P-9 and one Mst. Aysha daughter of Izat acquired rights through Mutation No.901 / Exh. P-10 and jumped into shoes of previous owners and their rights to redeem the suit land have wrongly been declined. It is further submitted by learned counsel for the revision-petitioner that as per Article 148 of the Limitation Act, 1908 (the 'Limitation Act') suit for redemption can be filed within 60 years and learned two Courts below, while computing period of limitation, have ignored that the time when the evacuee left the Country, in the year 1947, till the filing of suit is required to be excluded in terms of section 13 of the Limitation Act. Learned counsel for the revision-petitioner has further submitted that jamabandies passed in the years 1887-88 (Exh. P-2), 1889-90 (Exh. P-3), 1897-98 (Exh. P-4) and jamabandi for the year 1901-02 (Exh. P-5) have amounted to fresh start of limitation in terms of section 19 of the Limitation Act. It is added by learned counsel for the revision-petitioner that through the notification in the year 1959-60, the Central Government / respondent No.1 acknowledged the rights which resulted into Mutation No.911 (Exh. P-6), hence due to this written acknowledgment, the fresh limitation started once again.
During the course of arguments, learned counsel for the revision-petitioner has relied upon case titled "Ghulam Muhammad and 3 others v. Member, Board of Revenue Punjab, Lahore and 16 others" (PLD 2005 Lahore 119), case titled "Muhammad Hanif and another v. Ghulam Rasool through L.Rs and others" (2005 SCMR 1004), case titled "Abdul Haq v. All Akbar and others" (1999 SCMR 2531), case titled "Samar Gul v. Central Government and others" (PLD 1986 Supreme Court 35), case titled "Allah Ditta and others v. Sardar Khan and others" (PLD 1997 Lahore 716) and case titled "Muhammad Akhtar v. Mst. Manna and 3 others" (2001 SCMR 1700).
6. Conversely, Sardar Tariq Sher Khan, learned counsel for the respondents Nos.4 to 15 and 24 to 27 has opposed this revision-petition and he has submitted that learned two Courts below through their detailed judgments have dismissed the suit and the concurrent findings do not require any interference through this revision petition in terms of law laid down in cases titled "Malik Muhammad Hussain v. District Returning Officer and others" (2008 SCMR 488), "Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others" (2006 SCMR 12), and "Firm Sriniwas Ram Kumar v. Mahabir Prasad and others" (AIR (38) 1951 Supreme Court 177). He has further submitted that the period of limitation for filing the suit was 60 years in terms of Article 148 of the Limitation Act, which lapsed much prior to filing of suit. Learned Law Officers have supported the arguments of Sardar Tariq Sher Khan advocate and they have further submitted that revival of period of limitation by acquiring the rights by the State or its subsequent allotment could only have been the issue if there was any right that survived at the time of such acquisition.
7. I have heard the arguments of the learned counsel of the parties and perused the record with their able assistance.
8. The parties have not disputed that Article 148 of the Limitation Act applies to the suit, which provides that the suit for redemption is required to be filed within 60 years. The main thrust of arguments between two sides remained regarding fresh start of limitation of 60 years, on account of acknowledgement in terms of section 19 the Limitation Act, which reads as follows: -
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.
Explanation I. For the purposes of this section an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right or avers that the time of payment, delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to a set-off; or is addressed to a person other than the person entitled to the property or right.
Explanation II. For the purposes of this section, "signed" means signed either personally or by an agent duly authorized in this behalf.
Explanation III. For the purposes of this section an application for the execution of a decree or order is an application in respect of a right."
(Emphasis Supplied)
The above reproduced provision of the Limitation Act clearly reflects that signed written acknowledgment by a party, against whom such property or right is claimed, can revive limitation provided this written acknowledgment is prior to the expiring of the prescribed period for filing the suit or application. Further, the acknowledgment within original limitation period has to be signed personally or through authorized agent by the one against whom the rights are claimed. The burden to prove that this acknowledgment is prior to expiry of original period, to give fresh start of limitation period, is on the one who is asserting this fresh start of limitation. The Honourable Supreme Court of Pakistan in case titled "Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others" (PLD 1991 Supreme Court 524) has already settled this proposition as to burden of proof in the cases where the mortgagor is asserting his rights of fresh start of limitation on the basis of acknowledgment. Here it will be beneficial to reproduce paragraph No.10 of the said judgment: - "10. In case of Zarif Khan and others v. Muhammad and others PLD 1983 Pesh. 58 acknowledgment on the basis of the entries in the mutation register was directly brought under consideration and dealt with as hereunder-- "In the case in hand, in order to prove acknowledgment giving fresh start to the period of limitation, it is incumbent upon the mortgagors to prove the same within the four corners of the law relied upon. On going through the record of the ease and the evidence produced by the parties acknowledgment as a question of fact was never specifically raised nor proved in the trial Court. The important ingredient for attracting the provisions of section 19 of the Limitation Act that the same must be in writing and signed by the person making it is totally missing. All the sub- mortgages were created from time to time through mutation referred to above which are not required to be signed or thumb-impressed by the parties to the transaction. Mutations are the effect of the oral transaction entered into between the parties and reported to the relevant authority. Keeping in view that the above-mentioned mandatory element of acknowledgment is missing in the present case, I have no hesitation in holding that the defendants appellants have utterly failed to prove a valid acknowledgment of the original mortgage giving fresh start of limitation under section 19 of the Act. The creation of sub-mortgage unless in writing and singed by the mortgagors (original mortgagees) and proved in Court of law as a fact does not amount to acknowledgment within the meaning of section 19 of the Limitation Act.
This, according to us, lays down the correct law on the question of acknowledgment and not the decision in the case of Allah Bakhsh."
(Emphasis supplied)
Further reliance in this regard can be placed on case titled "Udhavji Anandji Ladha and others v.
Bapudas Ramdas Darbar" (AIR (37) 1950 Bombay 94). The relevant part of said judgment is as follows: - "Then we come to S.19, Limitation Act and that deals with acknowledgments and provides that where, before the expiration of the period prescribed for a suit 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. Therefore, it is clear that an acknowledgment starts a fresh period of limitation, and the one condition that has got to be satisfied is that the acknowledgment must be made before the prescribed period of limitation has expired".
(Emphasis supplied)
9. Having said that the acknowledgment for fresh start of limitation has to be in the original period of limitation and the burden was on the revision-petitioner to show that acknowledgment was issued within this period of 60 years of limitation, it is now appropriate to revert to the facts of the case. As per paragraph No.1 of the suit, Ahmad son of Laal mortgaged the suit land to the evacuee / Panjumal for an amount of Rs.75/- against which entry exists in jamabandi for the year 1887-88, but Exh. P-12 and Exh. P-13 missal haqeeqat bandobast pertaining to year 1872 reveals that the name of Panjumal son of Raja Kavail already exists as mortgage holder, over the suit land, created in his favor by Ahmad son of Laal.
10. More importantly, to discharge the abovesaid burden of proof, the revision-petitioner when himself appeared as PW.1, clearly deposed that he only knows that jamabandi for the year 1887-88 contains the entry of lien but cannot tell the original date of creation of the mortgage. The following part of his statement in cross-examination is relevant: -
11. Besides the revision-petitioner another witness namely Muhammad Usman appeared as PW.2 who also deposed that he is unable to tell the year of creation of mortgage. In response to one of the questions, he deposed that:-
12. As discussed above, to obtain the benefit of section 19 of the Limitation Act, it was incumbent upon the revision-petitioner to show from record that his right was acknowledged in writing and signed before expiry of original limitation. Undoubtedly, the mortgage rights were created in favor of the evacuee / Panjumal if not before somewhere in the year 1872. The period of limitation of 60 years expired much prior to 1947. The suit is totally silent as to any discharge of liability or acknowledgement, from 1872 till next 60 years, by the one against whom such property or right is claimed.
13. Learned counsel for the revision-petitioner has next relied upon section 13 of the Limitation Act which provides as follows: - "13. Exclusion of time of defendant's absence from Pakistan etc and certain other territories. In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from [Pakistani and from the territories beyond Pakistan under the administration of the Federal Government shall be excluded."
14. I am afraid that above provision does not help the revision-petitioner as the migration of the evacuee / mortgagee to India in the wake of independence (1947) is after expiry of limitation, thus, his absence thereafter is immaterial. Reference in this regard can be made to case titled "Allah Dawaya and others v. Ghulam Mustafa and others" (1990 CLC 1990).
15. Upon creation of mortgage, the subsequent purchaser has purchased or acquired the rights subject to mortgage. Charge of mortgage kept travelling even the suit land was further sold or it was exchanged. Its existence could only come to end on payment of mortgage money, by the consent of parties or by operation of law. Upon expiry of limitation, it matured into ownership. I am also fortified in my view by law laid down by Honourable Supreme Court of Pakistan in the cases titled "Nazeef v. Abdul Ghaffar and others" (PLD 1966 Supreme Court 267) and "Kara Mir and others v. Mst. SHO Begum and others" (2003 SCMR 589). The relevant part of "Nazeef" case (supra) is as follows:- "Once a mortgage has been created it will remain in existence till it is brought to a termination either by operation of some law or by agreement of parties and if it remains unredeemed for the period of limitation provided for by the Limitation Act it matures into ownership. In the present case a mortgage had been created in 1870 if not earlier. The limitation for redemption being sixty years the mortgagor will have to show that this mortgage somehow came to an end if he wants to avoid the consequence that on account of lapse of time the mortgagee has become the owner."
In case titled "Ghazi Marjan and others v. Alam Gul and others" (PLD 2009 Pesh. 83), the honourable Peshawar High Court has also observed as follows: - "This is undisputed fact that the mortgagor failed to redeem the disputed land till 1946 and lapse of sixty years from the date of accrual of right of redemption. Suit by mortgagor beyond sixty years when there is no acknowledgement in the said period, the mortgagor shall be debarred to seek decree for possession through redemption. It is also an established principle of administration of justice in civil disputes that burden always lies upon the plaintiff to establish among other thing that the suit is well within time. If the plaintiffs fail to establish that the suit is within time, he cannot be granted decree being barred by time.
5. The petitioners-plaintiffs have purchased the title of mortgagor and in this way the land which was already mortgaged with them, become full owner instead of mortgagee. In the year, 1997 purchasing the title of original owner from her successors was already barred by time because after 1946 the original owner or her successors were barred to file a suit for redemption. The petitioners are vendee of the title have step into shoes of original owner and they have purchased the title of the mortgagor which could not be enforced through Court."
(Emphasis supplied)
16. During the course of arguments, learned counsel for the revision-petitioner has relied upon cases titled "Ghulam Muhammad", "Samar Gul, and "Allah Ditta" (supra) but none of said case laws support the stance of the revision-petitioner. Principle(s) therein are only applicable when the mortgagee or an evacuee left Pakistan in the year 1947 before expiry of limitation as provided in article 148 of the Limitation Act or the Government took over the evacuee land before said expiry of limitation, which has been construed as revival of limitation by Honourable Courts in the above cases. Thus, cases cited by the learned counsel of the revision-petitioner are clearly distinguishable from the facts of present case.
17. For what has been discussed above, I have found no merits in the present revision petition, which is accordingly dismissed. No order C as to costs.