1. MUHAMMAD YAQUB ALI, J.-The facts out of which this appeal by leave arises are by no means easily ascertainable on the present record.
2. On some date prior to 13-3-1903 Bhai Khan, predecessor-in---interest of the respondents mortgaged 107 bighas of land in village Janiwala to one Gurdit Singh. The latter either sold or further mortgaged his rights to Malik Jehan Khan Tiwana. On 26-9-1892 Bhai Khan created a second mortgage in favour of Malik Sher Bahadur of 107 bighas of land which was either free from any encumbrance or was included in the land earlier mortgaged to Gurdit Singh. Part of consideration was left with Malik Sher Bahadur to redeem the first mortgage. On the 25th September 1902, Malik Mumtaz Khan and Malik Mubariz Khan exchanged 54 bighas of the mortgaged land with an equal area of land in village Vijh belonging to Sahib Khan and Agar Khan, the prede--cessor-in-interest of the appellants.
3. On the death of Malik Jehan Khan, his sons Malik Mumtaz Khan and Malik Mubariz Khan succeeded to the mortgagee rights. Later on Malik Sher Bahadur died and his heirs sold one-half of the mortgagee rights to Malik Mubariz Khan and the other half to Suan Singh Kishan Singh. The latter sold away their rights to one Chandial Singh. Lastly Bhai Khan the mort--gagor sold his equity of redemption to Mohammad Khan father of Mohammad Asghar, appellant No. 3. On 26-4-1924 Moham--mad Khan brought Civil Suit No. 517 in the Court of Lala Ram Rang, Sub-Judge, Sargodha, against Chandial Singh and others for redemption of half of the land under mortgage with him. The suit was decreed by the trial Court, but on appeal Lala Jaswant R.I, District Judge, Sargodha, dismissed it on 4-12-1925. It is said that the dispute is in relation to the remaining one-half of the land originally mortgaged by Bhai Khan to Gurdit Singh or to Malik Sher Bahadur.
4. In the exchange of 1902 evidenced by M. Nos. 36, 38 and 39 of village Janiwala and M. No. 786 of village Vijh, it was speci--fically provided that the land given in exchange was mortgaged by Bhai Khan and that it will retain its character on the same terms and conditions. The mutations in both the villages are signed by the parties or their agents.
5. On 15-9-1959 the respondents as successors-in-interest of Bhai Khan filed an application for redemption of the Vijh land against the appellants under section 4 of the Redemption of Mort-- gages (Punjab) Act II of 1913. The application was accepted on 20th November 1961, by the Collector who directed redemption of the land in the hands of Malik Habibullah Tiwana, legal heirs of Malik Mubariz Khan and Malik Mumtaz Khan. On 8-11-1962 the respondents presented a second application for redemption of the Janiwala land against the appellants who inter alia claimed that there was no subsisting mortgage which the Collector could redeem under section 4. The objection was overruled by the Collector on the finding that the mutation pertaining to exchange of mortgaged land in 1903 contained an acknowledgment that the land exchanged thereby was under mortgage. The application for redemption filed, on 8-11-1962 was, therefore, within time. The order was on appeal maintained by the Commissioner and the Member, Board of Revenue, West Pakistan.
6. Dissatisfied with the orders passed by the Revenue authorities the appellants filed Writ Petition No. 1640 of 1968 in the High Court reiterating the claim that the mortgage being of a date earlier them 1902 the application for redemption filed on 8-11-1962 was beyond the prescribed period of 60 years. The Writ Petition was not pressed at the hearing and was dismissed on 11-10-1968. The appellants thereafter filed a review petition before the Board of Revenue which was rejected on 19- 10-1968 on the ground that the pleas taken in support of the application were not raised at the hearing of the appeal. A second writ petition was then filed by the appellants which too was dismissed on 12-11-1968 on the finding inter alia that it involved disputed question of fact which could not be resolved without embarking on an elaborate inquiry.
7. Leave to appeal was granted on the 15th April 1969, to con--sider the plea that the learned Judges in the High Court had omitted to advert to the question of limitation though specifi--cally raised in both the writ petitions.
8. We have indicated in the beginning that the facts leading to the appeal are full of complexity and no satisfactory finding could be recorded as to the identity of the land mortgaged to Gurdit Singh and Malik Sher Bahadur by Bhai Khan. The latter mortgage created in 1902 fixed a period of 55 years for redemption. If the land in dispute is included in that mort--gage or it was received in exchange for it in 1903, the application for redemption would be within time whether there is an acknow--ledgment within section 19 of the Limitation Act or not. Alterna--tively, if the land in dispute was not mortgaged to Malik Sher Bahadur, but had remained in the hands of Malik Jehan Khan and on his death passed onto his sons Malik Mumtaz Khan and Malik Mubariz Khan who gave it in exchange to the predecessors of the appellants in 1903, then the mutations evidencing the exchange contain a clear acknowledgment that the land given in exchange by Sahib Khan and Agar Khan was under the mortgage created by Bhai Khan. The relevant entry in the mutation is to the following effect: This unequivocal acknowledgment of the mortgage by the successors of the original mortgagees furnished a fresh period of limitation for redemption to the successors of Bhai Khan under section 19 of the Limitation Act.
9. The learned Judges were, therefore, right in dismissing the writ petition in limine on the ground that it involved an elaborate inquiry into facts which falls outside the exercise of writ juris--diction under Article 98 of the 1962-Constitution. The proper B remedy open to the appellants, therefore, was to take the dispute to a civil Court for determination. It was contended by Mr. D. M. Awan that such a suit would be barred by section 14 of the West Pakistan Redemption 0 Mortgaged Lands Act XIX of 1964 which provides "14.-(1) Save as otherwise provided by this Act, an appeal shall lie from an original order of the Collector to the Commissioner.
(2) Save as otherwise provided by this Act, an appeal shall lie to the Board of Revenue from every order passed in appeal by the Commissioner, on any one of the following grounds, namely :-
(a) The decision being contrary to law or to some usage having the force of law ;
(b) the decision having failed to determine some material issue of law or usage having the force of law ;
(c) a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, which possibly have produced an error or defect in the decision of the case."
10. The bar applies to orders made with jurisdiction under Act XIX of 1964. If there be no subsisting mortgage as claimed by the appellants then a civil suit would lie as the proceedings in the redemption application would in that event be without juris, diction. We should not, however, be understood as lying down in these proceedings that a civil suit is competent on the facts of the present case. This will, of course, be decided by the Courts seized with the issue if such a suit is at all filed by the appellants.
11. In the result we concur with the view expressed by the High Court and dismiss the appeal leaving the parties to bear their own costs.