Pir Zaman Shah and - others instituted this suit against Dost Muhammad for a declaratory decree for the effect that. They and the defendant No. 2 (Ali Asghar Shah) having remained as mortgagees in possession for over 60 years of 1/3 share in the land represented by Khasra No. 93, situated in village Oghra, Tehsil and District Mansehra, have become owners thereof and that the entry in the revenue record showing the entire land to be the ownership of defendant No. 1 was wrong and inoperative against their rights. In the alternative, they also claimed possession of the suit land. It was alleged in the plaint that the land in suit had been mortgaged by mutation No. 576, attested on 23-5-1897 and defendant No. 1 only got redeemed his 2/3 share by filing a petition before Collector, Hazara on 5-12-1956 but in collusion with the revenue officials he got the entries of redemption made in the revenue record in respect of the entire Khasra number which being wrong were later corrected by correction mutation No. 3515, attested on 8-6-1971; that since the plaintiffs and defendant No. 2 remained in possession of the suit land as mortgagees for more than 60 years, they have become owners thereof by prescription and the name of the defendant No. 1 wrongly appears in the revenue record as owner of this land; that although the possession of the suit land is with 'the plaintiffs and defendant No. 2 but in case it is not found to be so, then the plaintiffs and defendant No.-- 2 are also entitled to a decree for possession of the suit land.
2. The suit was contested by the defendant No. 1 on legal and factual grounds. On the pleadings of the parties the learned trial Judge framed the following issues: (1)Whether the plaintiffs have got a cause of action O.P.P.
(2)Whether the suit is within time? O.P.P.
(3)Whether this Court 'has no jurisdiction to entertain this suit? O. P. D,
(4) Whether the suit is incompetent- in its present form? O.P.D.
(5)Whether the suit is properly valued for the purposes of court-fee and jurisdiction? O.P.P..
(6)Whether the plaintiffs and defendant No.2 have prescribed their title to the, suit land being its mortgagees for over sixty years and the entries in the revenue papers in favour of defendant No.1 are wrong and inoperative against the rights of the plaintiffs and defendant No.2? OPP.
(7-)Whether in the alternative the plaintiffs are entitled to the possession of the suit land? O.P.P.
(8)Relief.
3. On conclusion of the proceedings, the learned trial Judge, by the judgment and decree dated 4- 7-1972, dismissed the suit. The aggrieved plaintiffs filed appeal from the decree of the learned Civil Judge, which was accepted by the learned Additional District Judge, vide the judgment and decree dated 2$-6-1975, and the suit was remanded to the learned trial Judge for decision afresh.
After remand, Member, Board of Revenue, N.W.F.P. Was added as defendant in the suit, who, however, did not contest the suit. One additional issue No.7-A "Whether the suit is bad for non- joinder of necessary parties? OPD" was also framed after the remand.
4. The suit was; by the judgment and decree dated 19-10-1977, decreed by the learned Civil Judge, and the appeal. Filed by the contesting defendant before the learned District Judge, by the judgment and decree dated 9-7-1978, failed. The aggrieved defendant Dost Mohammad has come to this Court in revision. Mr. Mohammad Hussain Lughmani, Advocate appeared on behalf of the petitioner and Mr. Fazal Hussain, Advocate appeared on behalf of the respondents. They have been heard and the record of the case perused with their assistance.
5. The learned counsel for the petitioner contended that the petitioner and evacuees were joint owners of the disputed khasra, the petitioner owning 2/3 share and the evacuees owning 1/3 share.
He contended that since the disputed khasra was coming mortgaged with the respondents, the petitioner applied to the Collector for restitution of mortgaged land under N.W.F.P Act 32 of 1950 without payment of mortgage charge, but the Collector redeemed 2/3 share only belonging to the petitioner by order dated 5-12-1956 and it was further directed that the possession shall be given to the petitioner after partitioning the property with the evacuees. It was in pursuance of that order made by the Collector that partition mutation N.o.1981 relating to the disputed land along with other land, in all measuring 56 kanals 3 marlas, for partitioning the land between the evacuees and non-evacuees, was entered by Patwari Halqa on 9-7-1959 and was attested by Assistant Rehabilitation Commissioner, Mansehra on 20-7-1959, in accordance with paragraph 15 of the Rehabilitation and Settlement Scheme made for the purpose under the Pakistan Rehabilitation Act, 1956. By this mutation 1/3 share out of the entire land mentioned in the mutation was given in partition to the evacuees and 2/3 share was given to the petitioner, the disputed khasra falling as a whole to his share. He contended that the order made under this, Scheme could be objected to within 15 days of the making of the order, after which it became final and could not be challenged by any one, nor was this order ever challenged by any party. The learned counsel further contended that after this partition physical possession of the suit land had actually been taken by the petitioner, and not only entry to that effect appeared in the revenue record, but this fact had also been admitted by 'the respondents themselves when they added in the suit prayer for possession of the suit land. The learned counsel also argued that the findings of the learned two Courts below on this question of fact are also in favour of the petitioner; and that being the position and the mortgagees having gone out of possession no decree could have been, granted to the mortgagees against the mortgagor in possession as Article 148 of the Limitation Act and section 28 thereof were not applicable to a case of mortgagees out of possession at the time of suit. In this argument the learned counsel sought support from P L. D 1979 Peshawar 87.
6. Next ground urged by the learned counsel for the petitioner was that the limitation did not run against an evacuee and it stopped running the moment the evacuees migrated from Pakistan and their property came to vest in the custodian. He contended that in this case the evacuee-owners would be deemed to have 'migrated from Pakistan on 1-3-1947 and on that date limitation stopped running against them by virtue of section 13 of the Limitation Act and it re-started only after 20-7- 1959, when it was allotted in partition to the petitioner who could claim benefit of this period as - against the mortgagees and in this manner since he came to possess the suit land before the expiry of period limited by law, his title in the suit land was not extinguished and the respondents, in the circumstances, could not avail of the benefit of Article 148 and Section 28 of the Limitation Act.
7. His last contention was that since the suit land had been allotted in partition to the petitioner in the year 1959; this allotment gave fresh start of limitation against the mortgagor-owner and the limitation having not run out, the decrees passed by the learned Courts below having been based on misconstruing the law were liable to be set aside. In this respect the learned counsel relied on PLD 1986 Supreme Court 35.
8. The learned counsel representing the respondents contended that the mortgage in respect of the disputed land having come into being on 23-5-1897 when mutation No.576 was attested and since then possession of the suit land having continuously remained with the mortgagees and the mortgage having not been redeemed by the evacuee-owners, nor by the Custodian or any one else, even till today after it has wrongly and unauthorisedly been entered as ownership of the petitioner, the mortgagees acquired indefeasible title in the suit land by virtue- of Article 148 of the Limitation Act read with section 28 thereof, and the mortgagor-owners having lost their title much before the land was allotted in illegal partition to the petitioner who could not revive that title by illegally dispossessing the tenant of the respondents from the suit land. He contended that after coming into force of the Displaced Persons (Land Settlement) Act, 1958, which aimed at permanent settlement of the displaced persons, the Assistant Rehabilitation Commissioner had no authority or jurisdiction left to ask for or order' partition or deal with the evacuee property in any way and the order made by him for partitioning the property between ,the evacuees and non-evacuees being without jurisdiction was a nullity. His other- contention was that the property having not been treated as evacuee property could not be treated as such and for that reason no Rehabilitation Authority ever had jurisdiction with- respect to it.
9. The other contention of the learned counsel for the respondents was that the disputed land having come to vest on the Ist March, 1947 in the Custodian, it could have been redeemed by him from the mortgagees and section 13 .Of the Limitation Act had no application to this case. He argued that the limitation started from the following day of the creation of the mortgage and having run uninterrupted and the land having not been redeemed from the mortgagees in possession within 60 years could not thereafter be redeemed thereby creating fn the mortgagees ownership rights by afflux of time.
10. His last contention was that it was not correct to plead section 19 of the Limitation Act in favour of the petitioner as there was 'no acknowledgement in writing within limitation of the respondents which could give a fresh start of limitation and the dictum of the Supreme Court laid down in PLD 1986 Supreme Court 35 was not attracted to the facts of this case. He contended that the concurrent findings of fact reached by the two courts below, after discussing evidence brought on record, that the respondents possession on the suit land as mortgagees was for more than 60 years, could not be disturbed in revisional jurisdiction by this Court and the revision petition on this ground also merited to be dismissed. .
11. Before I go further and deal with the legal questions agitated before me by the learned counsel for the parties, I would like to refer to the documentary and the oral evidence in the light of which certain fact stand established on the record.
12. The Goshwara of jamabandis (Ex.P.W.2/1) placed on the record shows that in the jamabandi of 1899/1900 the land in suit was represented by khasra No.685 which was owned by Sher, Mehra and Gohra s/o Hassan Ali. By mutation No.576, attested on 23-5-1897, the entire khasra was mortgaged by the owners to Sukhraj s/o Teerat. By mutation No.632, attested on 13-6-1898, Sukhraj mortgagee sold his mortgagee rights to Akbar Ali. Both these mutation were incorporated in the jamabandi of 1899-1900, wherein the entire khasra No. 685 was shown to have been in possession of the mortgagee. It was by mutation No.745, attested on 16-4-1904, that 1/3rd share of Sher was sold to Kashkol s/o Teerat and this mutation found its place in the column of ownership in the settlement record of 1904-05, wherein this land was shown as represented by khasra No.43, but the possession of the mortgagee, however, remained unchanged. In the jamabandi of 1907-08 entry with respect to owners remained unchanged but Sher and Mehr Ali s/o Behram Din were recorded therein as mortgagees on the basis of mutation No,193, attested on 6-6-1908. The possession of the land- was recorded as that of tenant--at-will. In the jamabandi of 1911/12 the entry with respect to owner- mortgagors remained unchanged, but Mir Abdullah having purchased the mortgagee rights of Sher and Mehr Ali by mptation No.601, attested on 4-2-1912, was recorded as mortgagee in- possession of this land. In the jamabandi of 1915-16 Hazrat Shah was entered as mortgagee of this land, having purchased these rights from Mir Abdullah by mutation No. 916, attested on 21-5-1916.
The possession of the land also remained with the mortgagee. In the subsequent Jamabandis the successors of owners-mortgagors were entered as such and Hazrat Shah was entered as mortgagee of this land. The possession, however, was entered as that of the tenant-at-will. In the settlement record of 1946-4'/, old Khasra No. 43 was allotted new khasra No. 93 which entry exists till today. The entry regarding the successors of Hazrat Shah mortgagee, who are respondents in this case, was incorporated in this record; the possession remaining with the tenants. As in the Khasra girdawari (Exh. P.W.1/5) and the jamabandis of 1959-60 and 1962-63, one Said Alam son of Arsala was in possession of some share of the disputed khasra and while appearing in the witness box as P.W. 4 he categorically stated that he was holding possession of the suit land on behalf of mortgagees (plaintiffs and defendant No. 2) and that he had been dispossessed by the petitioner herein (defendant No. 1) two years ago, which statement has been accepted as true by the learned Courts below. The order made by the Collector, Hazara (copy Exh. P.W.3/4) on 5-12-1956 would clearly show that the present petitioner, admitting that the possession of the suit land was then with the mortgagees had applied for restitution of the mortgaged land and by that order decree with respect to 2/3 share only was passed in his favour but the possession was directed to be delivered to him after partition with the evacuee who was also party in the redemption petition. It was in pursuance of this order made by the Collector, Hazara that the A.R.C. Subsequently partitioned the disputed land along with other land belonging to the evacuee and. Non-evacuee owners and the petitioner herein entered into possession of the entire suit land by dispossessing Said Alam tenant after such partition. All this happened after the expiry of sixty years from the original mortgage which had come into being on 23-5-1897. It is further established that the tenants-at-will who in the revenue record,, referred to above, were recorded as, in possession of the disputed land were holding possession on behalf of the mortgagees, which would mean that the mortgagees remained in possession of the suit land till the tenant under them was dispossessed by the petitioner after the land had in partition been allotted to him.
13. The dispute between the parties, as already noticed, relates to 1/3 share in the disputed khasra, which was evacuee property but after partition by the A.R.C. Between the evacuee and Muslim owners has been allotted to the present petitioner. In this partition other land was also involved, which is not the subject-matter of, this suit. Respondents in the suit claim that they have, become owners of this land, having continuously remained in its possession as mortgagees for over 60 years. They in the plaint averred that the evacuee-owner having lost his right of redemption under Article 148 of the Limitation Act also lost his title in the suit land by operation of section 28 thereof, which stand has been seriously controverted by the present petitioner, on whose behalf the contention raised is that the evacuee-owner having migrated from Pakistan in the wake of partition of the Sub-Continent, his rights relating to equity of redemption vested in the Custodian since 1-3-1947 and from that day the limitation stopped running against the .Custodian by operation of law until it was allotted to the present petitioner in partition' who could have thereafter sued for redemption, but having gained possession thereof out of Court was not obliged to file a suit arid plea of section 28 of the Limitation Act was, therefore, not available against him in a suit which was instituted against him after he had gained such possession. This regard the learned counsel for the petitioner has referred to Ayub Khan's case, already noted. '
14. The point relating to limitation agitated before me had also arisen in the case of Suleman and others PLD 1971 Lah. 77 before the Lahore High Court wherein his Lordship -dealing with this point observed as under: "The cumulative effect of the provisions mentioned in the preceding paragraph of the Pakistan (Administration of Evacuee Property) Ordinance 1999 and the corresponding provisions of the Pakistan (Administration of Evacuee Property) Act, 1957) is that from the first day of March, 1947 the interest of the evacuee owner vested in the Custodian by operation of law, and evacuee property so vested became immune from all legal process of any kind. Any one holding the property or being in its possession was to be deemed to be doing so on behalf of the Custodian of Evacuee Property... At this stage we might take note of section 4 of the Ordinance (corresponding to section 5 of the Act) which lays down that "the provisions of this Ordinance, and any rule or order made thereunder, shall have effect notwithstanding anything inconsistent herewith contained in any other law for the time being in force, or in any instrument having effect by virtue of such law". It will be seen that the obvious intention of this sweeping provision is that once the property has vested in the Custodian of evacuee property then it shall not be taken away from him or his control by the operation of any other law for the time being in force. And this would include section 28 of the Limitation Act as well which contemplates extinguishment of the right to property at the determination of the period of limitation. Any other position would have been simply impossible, as the Custodian of Evacuee Property could not be expected to acquire knowledge of time in the various legal obligations which the non-Muslim evacuee owners numbering several millions had already incurred or were liable to incur with the passage of time. The Legislature, therefore, in its wisdom, chose to freeze the respective rights of the parties as they existed on a certain specified day, namely, the first day of March, 1947. On this view of the matter it follows that time ceased to run against the Custodian from the 1st of March, 1947 and, therefore, the question of limitation has to be decided in such cases with reference to this date and not to any subsequent date on which action may in fact be initiated by the Custodian/ Rehabilitation authorities. On the 1st of March, 1947 the right to redeem was clearly in subsistence in the instant case".
This authority was subsequently followed by the A.J. K. High Court in the case of Muhammad Hussain and 2 others 1980 CLC 593. I am in respectful agreement, with the reasoning adopted and the law laid down in these two authorities. I am, therefore, of the view that in this case the limitation under Article 148 of the Limitation Act had ceased to run against the Custodian, in whom the disputed property had come to vest by operation of law on the 1st of March, 1947, by which date certainly the, possession of the mortgagees had not prescribed into title. The partition mutation No. 1981 was attested on 20-7-1959 whereby the petitioner became exclusive owner of the disputed Khasra. In this partition the share owned by evacuee-owner in the disputed khasra was given to the petitioner in lieu of which the share owned by him in other land was given to evacuee-owner.
This partition, as in. Paragraph 8 of the amended plaint filed by the respondents, was not challenged by the respondents, and rather appears to have been accepted by them. It has also been averred in this paragraph of the plaint that the possession of the suit land after partition remained with the present petitioner and any contradictory stand or argument respecting this partition and respecting possession of the present petitioner on the suit land being beyond pleadings, cannot be permitted to be agitated. That being so, and the present petitioner having gained possession of the suit land out of Court, section 28 of the Limitation Act would come to his rescue in defence and the question of extinguishment of his title in the suit land, therefore, did not arise Ayub Khan's case already noted supports this view.
15. There is force in the arguments of the learned counsel for the petitioner that section 13 of the Limitation Act was applicable in this case in favour of the evacuee-owner respecting the share owned by him which by operation of law vested in the Custodian. Since the respondents could not lay claim on the ground of limitation against the evacuee, they equally could not .Lay such claim against the Custodian, in whom evacuee interest came to vest by operation of law from the first of March, 1947.
16. The disputed land was evacuee property, which vested in the Custodian from the first of March, 1947 by operation of law, stands. Established on the record and in view of averments contained in paragraph 8 of the amended plaint and the finding of the learned Additional District Judge in first round of litigation, which finding was not challenged before higher forum and thus became final between the parties, it was not open to the learned counsel for the respondents to urge any contrary argument, which in any case is without substance.
17. It is wrong to say that partition effected by A.R.C. Gave fresh start of limitation to the owner- mortgagor because the record placed before me does not suggest that the mortgagees were also party to that partition or had in any manner given in writing accepting mortgagor as owner of the land. Section 19 of the Limitation Act was, therefore, out of application.
18. The learned District Judge while deciding the appeal proceeded on absolutely wrong premises when he held that the partition of the land between non-Muslim-owner and Muslim-owners had been initiated when the non-Muslim owner had not become evacuee. There is absolutely no evidence on the record in support of this finding, which having been based on no evidence-is not sustainable.
19. From the discussion above it is clear that both the learned Courts below misconstrued the law while holding that respondents had matured their title to the suit land by prescription. Such finding, therefore, suffers from illegality and cannot be maintained. The revison petition must, therefore, succeed.
20. Consequently, while accepting this revision petition, I would set aside the judgments and the decrees of the learned Courts below and dismiss the suit instituted by the respondents. Since intricate questions of law were involved in this case, I shall make no order as .To costs.