1. HAMOODUR RAHMAN, C. J.-The dispute in this case relates to an evacuee property situated at Dera Ghazi Khan. It was transferred to one Dinu in January 1960. Thereafter, the said Dinu, on the 8th of December 1960, executed a deed described as a mortgage deed for Rs. 5,578. In this deed, there was a recital to the effect that Dinu had realised the full consideration for the property and that he would get the sale deed executed and registered on getting full rights. It was further stipulated that, if the mortgagor did not get the house redeemed within a period of four years, the mortgagee would become full owner.
2. Dinu, unfortunately, died on the 4th of November 1962, before the P. T.' D. Could be issued in his favour. The P. T. D. Was subsequently issued in his name on the 5th December 1962.
3. The respondents-mortgagees thereupon, on the 13th of May 1968, filed a suit for specific performance against the heirs of Dinu, and alternatively prayed that if it was found that title had not passed to them, then a mortgage decree for Rs. 12,500 should be passed in their favour. The suit was, ' however, valued only for the amount shown in the deed as the mortgage money.
4. The defendants, who are the heirs of Dinu and now the petitioners, contested the suit. They denied that the deed was a deed of sale out and out but admitted that it was a mortgage and, therefore, claimed that they were entitled 'to redeem the mortgage notwithstanding that, according to the condition of the deed, redemption was to be barred after four years., This clause was, according to the petitioners, illegal as a clog on the equity of redemption. They further maintained that they were entitled to redeem on payment of only the mortgage sum of Rs. 5,578. The plaintiffs were not, according to them, entitled to the additional amounts claimed by them. They also raised the plea that the suit should have been valued according to the market value of the house and not according to the amount of the deed, but this issue was decided against them.
5. The trial Court passed a preliminary mortgage decree and allowed the petitioners to redeem on payment of the mortgage amount of Rs.- 5,578 and Rs. 200 as expenses of litigation. The petitioners were directed to deposit this amount before the 10th of December 1969.
6. Against the judgment, `the respondents herein went up in appeal to the District Judge who allowed the appeal, set aside the decree passed by the trial Court and granted a decree for specific performance.
7. The petitioners filed no cross-objection before the Appellate Court nor did they raise the question as to the proper valuation of the suit, but when they came in second appeal to the High Court, the objection as to court-fees was taken in the grounds of appeal. It does not appear, however, to have been urged before the High Court, as there is no reference to it in the judgment of the Lahore High Court. There is also no averment the petition filed in this Court to the effect that this question of court-fees was agitated before the High Court. The High Court dismissed the appeal in limine.
8. The petitioners now seek special leave to appeal, and- it is contended on their behalf that the mortgage, being without the sanction of the. Settlement Authorities, was void. There is no substance in this contention, for, under paragraph 37 of the Settlement Scheme No.1 itself- it is specifically mentioned that a person in whose favour a provisional transfer order has been issued may lease out or mortgage the property to any person subject to such conditions that may be laid down by the Chief Settlement Commissioner, but he shall not pending the issuance of a permanent transfer deed, alienate the property in any other manner.
9. The next contention of the learned counsel is that if it was an agreement to' sell, then the suit was time-barred. This question was raised before the trial Court and decided against the petitioners but they did not file any, cross-objection in the First Appellate Court. They cannot, therefore, now reagitate this question.
10. The question of court-fees also cannot be raised at this stage for the same reason. In any event; since it is admitted that the suit was properly valued and court-fee was properly paid in respect of a suit for specific performance, no objection can be taken to the decree for specific performance, the other reliefs not having been granted to the respondents.
11. Lastly, it is urged that the R T. D. Was invalid, because, it was issued in the name of a dead person and, there--fore, the suit was premature. There is no substance in this contention either, for, if the transfer was validly made, in favour of Dinu, the naives of his heirs or of the transferees can be substituted in the P. T. D. By the Settlement Authorities.
12. These are all the points urged; and since we find no substance in any one of them, the petition is dismissed.