IJAZ ANWAR, J. The petitioners/plaintiffs have brought a suit for declaration and perpetual injunction against the respondents before the learned Civil Judge, Charsadda (details are given in the head note of the plaint). The respondents-defendants were summoned by the trial Court who appeared and contested the suit by filing written statement. Initially, the said suit was dismissed by the trial Court vide judgment and decree dated 16.02.1997, however, in appeal, the case was remanded to the trial Court by the learned Additional District Judge, Charsadda vide his judgment and order dated 18.10.2000. After the remand, the petitioners submitted amended plaint and the respondents also submitted written statement. Issues were framed by the trial Court and the trial Court directed the parties to produce and record evidence in support of their respective cases, which they produced and recorded accordingly. The learned Civil Judge, Charsadda, after hearing arguments of counsels for the parties, dismissed the suit of the petitioners vide judgment and decree dated 30.10.2004. Being aggrieved, the present petitioners filed appeal before the learned District Judge, Charsadda, however, it was also dismissed vide the impugned judgment and decree dated 29.09.2006 by the learned Additional District Judge-III, Charsadda. Hence, this Civil Revision petition.
2. Arguments heard and record perused.
3. Perusal of the record reveals that the land in question measuring 09 Kanal 17 Marla was shown in possession of the petitioners as mortgagor since the year 192627 which is available on record in the shape of Misle Haqiyat for the year 1926-27 in favour of one Non-Muslim lady namely Mst.
Manori, widow of Saran Singh Dhana Singh. It appears that in the year, 1947, the said lady has migrated to India and this entry remained the same which also duly finds mention in the Jamabandi (Ex.Pw-1/8) for the year 1953-54. The petitioners came to know about the mortgage in question when the predecessor of the respondents brought a suit for produce against them alleging to be the owners of the suit property. This prompted the petitioners to file a declaratory suit for redemption of the suit property.
4. Given the above background, the record further reveals that vide mutation No.3353 attested on 27.01.1990, the Federal Government, terming the land in question as evacuee property, transferred the suit property in favour of the Federal Government as mortgagee. Interestingly, on the same day, another mutation No.3354 was attested from the Federal Government in favour of the Central Government of Pakistan in the column of cultivation. The matter not ends here as again vide mutation No.3356 attested on 19.08.1990, the same land was allotted to one Abdul Majeed s/o Kher Muhammad alias Medo. The said allottee then transferred the suit land in favour of the predecessor of the respondents through sale mutation No.3356 attested on the even date i.e. 19.08.1990 on the basis of which, now the respondents claim its ownership. The evidence, so brought on the record, is evident of the fact that throughout, the possession of the petitioners was never disturbed.
5. The only issue on the basis of which the suit is concurrently dismissed holding the suit as barred by time in terms of Article 148 of the Limitation Act, 1908 which has since been repealed vide Khyber Pakhtunkhwa Amendment Act No.XV of 2016 dated 19.08.2016. For the convenience of the parties, the repealed Article 148 of the Limitation Act, 1908 is reproduced as under:-
148. Against a mortgagee to redeem or to recover possession of immoveable property mortgaged[Sixty years]. When the right to redeem or to recover possession accrues: Provided that all claims to redeem arising under instruments of mortgage of immoveable 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.
6. The starting point of limitation for the purpose of redemption of the suit property has been held by the Courts below to be 1926-27, wherein, the entries in the revenue record shows the disputed property to have been mortgaged to a Non-Muslim, above referred, and as such, the period of sixty years expired in the year 1986-87. While perusing the judgment of the learned appellate Court, I find that exactly on the same law point and facts, the Hon'ble Supreme Court of Pakistan has rendered a judgment in the case titled "Muhammad Hanif and another Vs. Ghulam Rasool through LRs and others (2005 SCMR 1004)", however, the appellate Court considered it as inapplicable on the ground that it is not clear that Mst. Manori has left the country after the year 1947 and thus, in such circumstances, the petitioners were required to have asked for redemption of the property within a period of sixty years. Such determination of the learned appellate Court is completely against the record and was having no relevance to the present controversy. If this argument of the learned appellate Court is accepted then there was no occasion for the Federal Government to have declared the suit property as evacuee and transferred it in their favour in the year, 1990. Thus, the learned appellate Court has gone on completely wrong premise while dismissing the appeal of the petitioners.
7. Mst. Manori, when left the country, was having only the title of mortgagee of the property and as such, the Federal Government, while declaring the property in question as evacuee, could, at the most, become a mortgagee and under no circumstances, can become the owner of the suit property by further allotting the same to the settlers in terms of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.
8. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Hanif (supra) has reproduced a notification of acknowledgment issued by the Chief Settlement Commissioner's memo dated 08.12.1959, which, being relevant in the present controversy, is reproduced 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 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" orders 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 evacuee 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".
9. Under the above memo, the powers under Section 25(2)(L) of Pakistan (Administration of Evacuee Property) Act, 1957 were delegated to the Deputy Rehabilitation and Assistant Rehabilitation Commissioner to issue notice to local mortgagors to redeem the property within one month failing which the property would be liable to be auctioned under Section 25(2)(s) of the Act.
In the instant case too, nowhere it has been mentioned that at any time, the petitioners were having given any notice, as such, from the acknowledgment of the right of redemption, a fresh period of limitation would be computed for the exercise such right in terms of Section 19 of the Limitation Act, 1908. Thus, if the period of limitation is counted from the year, 1947, still the suit of the petitioners was not barred by time; similarly, in terms of the judgment of the Hon'ble Supreme Court of Pakistan, the starting point of limitation after the acknowledgement of the rights of the petitioners vide letter Memo dated 08.12.1959, a fresh period of limitation would be computed for exercise of such rights in terms of Section 19 of the Limitation Act, 1908 and as such, from the year, 1959 too, the suit of the petitioners was not barred by time. Para-7 and 10 of the judgment passed in the case of Muhammad Hanif (supra), being relevant, is reproduced as under:-
7. There is no cavil to the proposition that if the suit for redemption of mortgage would have been filed beyond the normal period of sixty years prescribed under the law, after acquisition of full ownership rights by the Central Government, it would definitely be hit bar of limitation under section 28 read with Article 148 of the Limitation Act, 1908 but in the present case only the mortgagees rights of non-Muslim evacuee, were with Central Government and since, the right of equity of redemption of the mortgagors stood acknowledged by memo. dated 8-12-1959, therefore, the limitation for the redemption of mortgage would be counted from the date of acknowledgement in terms of section 19 of the Limitation Act, 1908 and not from the date of mortgage.
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10. We in the light of foregoing discussion, are of the considered view that since Central Government acquired only mortgagee right of the non-Muslim evacuees and the right of redemption of local mortgagors was acknowledged vide memo. dated 08.12.1959, therefore, the limitation for filing suit would start from the date of acknowledgement and notwithstanding the provisions of section 5 of the Pakistan (Administration of Evacuee Property) Act, 1957 which may exclude the effect of section 13 of the Limitation Act in the cases in which the evacuee interest in the properties vested in Central Government, the suit for declaration/redemption of mortgage, would not be hit by bar of limitation.
10. I refrain myself from commenting upon the manner in which the mutation of transfer of land of the petitioners was firstly issued in favour of the Federal Government, then in favour of one Abdul Majeed and then in favour of Shams-ur-Rehman, predecessor of the respondents, who at the relevant time, was serving as Head Clerk in Deputy Commissioner's Office/Settlement Office.
11. In view of the above, I am of the view that both the learned Courts below have failed to consider the question of limitation in its true perspective. The suit filed by the petitioners for redemption was well within time in terms of Article 148 of the Limitation Act, 1908. Accordingly, this Civil Revision petition is allowed. The judgments and decrees passed by the learned Courts below are set-aside and the suit of the petitioners is decreed as prayed for.