' MIAN BURHANUDDIN KHAN, J.-Leave is sought to appeal against the judgment and decree of the Peshawar High Court dated 13-10-82 passed in Civil Revision No, 303 of 1981.
2. The facts are that Mst. Chand Sitara instituted a suit for possession by redemption of 18 Kanals and 8 Marlas out of land measuring 298 Kanals and 2 Marlas on the ground that the land in question was mortgaged with possession in favour of Humayun Khan defendant/petitioner on the basis of a registered mortgage deed dated 30-1-1968 for a period of 10 years started from Kharif 1968 for a sum of Rs 3,000. The petitioner resisted the suit giving rise to as many as 9 issues and two additional issues. The learned civil Judge granted to the plaintiff/respondent a preliminary decree for possession of the suit land by redemption on payment of Rs, 3,000 against the defendant/petitioner with costs vide order, dated 20-9-1980. An appeal was filed against the said judgment and decree but the same was dismissed by the learned Additional District Judge, Charsadda vide order dated 26-4-1981. Thereafter, petitioner filed a revision petition in the Peshawar High Court which was dismissed vide the impugned judgment.
3. Learned counsel contended that the learned Courts below have ignored the evidence on record which clearly established that the case of the plaintiff/ respondent was premature; that the civil Court had no jurisdiction in the subject-matter of the suit as it was exclusively triable by a revenue Court, in view of the provisions of West Pakistan Restitution and Redemption of Mortgaged Lands Act, 1961; that the Courts below also ignored the fact that improvements were made in the suit property by the defendant/petitioner to which he was entitled in case of redemption and lastly that the plaintiff/ respondent was not entitled to possession of a specific portion of the suit land from a co-sharer as the defendent/petitioner was also admittedly a co-sharer in the suit Khatas.
4. We have examined the contentions raised by the learned counsel and find that the first contention is based on oral evidence which has been rightly excluded by the learned Courts below as oral agreement is not admissible under section 91 of the Evidence Act when the original mortgage deed is in existence. The relationship of mortgagor and mortgagee also stands prove by the sale of ownership rights by Mst. Aulia Begum in favour of the plaintiff/respondent vide mutation No, 230 attested on 18-10-1969 out of an area measuring 23 kanals and 12 marlas which is established by the statement of Fazal Haq, Patwari Halqa. It is in the statement of Patwari Halqa that Humayun Khan petitioner had become owner through mutation No, 298 attested on 8-5-1978 by purchase from Alamzeb in the column of ownership. The petitioner being mortgagee from the vendor of the plaintiff/respondents cannot deny the relation of mortgagee in this case, and, therefore, the Courts below rightly came to the conclusion recorded in the impugned judgment.
5. As regards the improvements made in the suit property the Court below have held that there is no evidence on the record to that effect. Thus, 18 this question of fact cannot be gone into by this petition before us. As far at the jurisdiction of the Court is concerned, all the courts below have arrived to the conclusion that there is no specific bar for the matter to be tried by a civil Court. We find no merit in this petition. Leave is refused. .