' The land in dispute measuring 560 Kanals 2 Marlas situated in Khanpur North District Muzaffargarh was originally owned by Nooran who mortgaged it to one Naseer on 12-7-1886 as stated by the learned counsel for the petitioners. The said Naseer further mortgaged the same to a Hindu named Diala Mall vide Mutation No. 16 sanctioned on 25-12-1886. On the death of Nooran the land was inherited by his two sons namely Ramzan and Sultan. Both died and it devolved on Mst. Sarwar daughter of Sultan, she being the only heir of both of them. In the year 1915 some of the successors of said mortgagee through family settlement partitioned the land in between, themselves and a Mutation No. 401 was sanctioned on 20-12-1915 on the basis of this partition. After the partition of the sub-continent the evacuee mortgagees migrated to India and the land in question on 5-2- 1965 was allotted to Hoshiar in lieu of his claim at Khata No.
101. After the death of Hoshiar the land in dispute allotted has been inherited by the present petitioners.
2. Respondent No.1 made an application on 22-2-1966 before the Revenue Assistant with powers of Collector, Muzaffargarh for redemption of the land in dispute. The said officer vide his order, dated 1-2-1968 allowed the application and on the, question of the limitation raised by the present petitioners he recorded findings that sanction of Mutation No. 401 of partition of land between some of the mortgagees on 20-12-1915 contains signatures of two of the mortgagees, namely Darbari Ram and Jewana amounted to acknowledgment of liability within the meaning of section 19 of the Limitation Act, therefore, fresh period of limitation was to be computed from the said date, and as such the application was within time. This order was assailed in appeal before the Additional Commissioner (Revenue), Multan by the petitioners which was rejected on 21-8-1968 upholding the findings of the Revenue Assistant. The petitioners challenged the said orders in revision petition before the Board of Revenue which was allowed and the impugned orders were set aside, resultantly the application of respondent No. 1 stood dismissed. This order of Board of Revenue was challenged in W.P. No. 421 of 1970 by respondent No.1 in the Lahore High Court, which was accepted and the case was remanded to the Board of Revenue to decide the said revision petition afresh in accordance with law. After the remand the Board of Revenue vide its order, dated 21-7-1986 dismissed the revision petition of the petitioners and the orders of the officers below were thus maintained. The petitioners have challenged the said orders in this writ petition.
3. Learned counsel for the petitioners maintained that vide notification under section 4 of the Displaced Persons (Land Settlement) Act, 1958, all evacuee properties vested in the Central Government which ultimately became part of compensation pool, free from all encumbrances, therefore, the land in dispute shall also be deemed to have vested absolutely in the Government free from mortgage as per force of this notification.
4. I see no force in this argument. This controversy has been set at rest by the Supreme Court of Pakistan in the judgment reported as Samar Gul v. Central Government PLD 1986 SC 35 wherein it has been held that in pursuance of the said notification only the interest of evacuees in the properties vested in the Government and nothing more. This argument otherwise also has no relevancy in the context of the facts of the present case inasmuch as for the reasons to follow the land in dispute otherwise vested in the Central Government after partition free from the said mortgage without the aid of the terms 'free from encumbrances' in the said notification.
5. However, the case of the petitioners is on stronger footing on the point of limitation. I have gone through Mutation No. 401 sanctioned on 20-12-1915 for partition of rights of some of the mortgagees in the land in question which has been signed by two of them namely Darbari Ram and Jewana. It is also clear from this mutation that there were in all more than six mortgagees who appeared to have inherited the land in specific shares by succession. The question which falls for consideration is as to whether signatures of two of the mortgagees on this mutation amounts to acknowledgment of liability within the meaning and scope of section 19 of the Limitation Act, so as to compute fresh period of limitation from the said date for lodging claim for redemption of the entire land, for admittedly from the date of the original mortgage made on 25-12-1886, action of respondent No. 1 for redemption is clearly barred by time, as prescribed by Article 148 of the Limitation Act. Learned counsel for the petitioners has laid a good deal of emphasis and rightly so upon fact that the said acknowledgement of right of redemption having been signed by two of the mortgagees would not have entitled respondent No.1 to redeem the entire land or to compute fresh period of limitation from the said date. According to the learned counsel partial redemption is specifically prohibited by law, therefore, the application of respondent No.1 qua the entire land shall be barred by time and so was liable to be rejected as a whole.
6. On the other hand learned counsel for respondent No.1 maintained that the signatures of two of the mortgagees on Mutation No. 401 would constitute legal and valid acknowledgment within the meaning of section 19 of the Limitation Act so as to give fresh start of period of limitation, therefore, the application of respondent No. 1 was rightly held to be within time. He has also urged that even after partition of sub-continent in the record of rights for the year 1978-79 the land in dispute has been shown to be under mortgage and respondent No. 1 has been recorded as owner thereof, therefore, this amounted to still a fresh acknowledgment and the claim of respondent No. 1 for redemption of the land cannot be thrown out on the plea of limitation. Learned counsel further submitted that in any case respondent No. 1 at least could not be refused to redeem the share of those mortgagees in the land who signed the said mutation which could be treated as acknowledgment qua their shares.
7. I have considered the arguments advanced on behalf of the learned counsel for the parties. The argument of the learned counsel for the petitioners has considerable force. An acknowledgment of right of redemption in order to save limitation should necessarily be signed by all the mortgagees and if it is not so signed by all of them it does not hold good even with regard to the shares of those who signed it since the mortgage is indivisible. Law does not permit partial redemption of mortgaged property. The alternative contention of the learned counsel for respondent No. 1 that acknowledgment should hold good as regards the shares of the mortgagees who signed it cannot be accepted as there was one single mortgage and mere fact that each of the mortgagees were recorded as having specific shares would not entitle respondent No. 1 to sue each one of them separately for redemption. Likewise the acknowledgment cannot be separated so as to save limitation in regard to the claim for a part of the mortgage property while the same is ineffectual for the remaining land. To support this view reference may be made to Nadar Shah and others v.
Ishar Das and others (67 Indian Cases 463).
8. As regards the argument of learned counsel for respondent No. 1 that in the record of rights of 1978-79 and for that matter in any of the records after partition respondent No. 1 having been recorded as owner of the land in dispute under mortgage would not make any difference inasmuch as if that is to be treated as an acknowledgment as is being canvassed, the same having not been made during the currency of the period of limitation which in this case expired in 1946. Therefore, this plea of learned counsel for respondent No. 1 has no merits.
9. Lastly learned counsel for respondent No. 1 relied upon PLD 1986 SC 35 to contend that it was held that acknowledgment of liability shall give fresh start of limitation, therefore, the application of respondent No. 1 was well within time. This judgment does not advance the case of respondent No. 1 any further. In this case the acknowledgment was made within the period of limitation as originally prescribed by Article 148 of the Limitation Act. Having held that the acknowledgment in this case did not have the effect of saving the limitation, therefore, computed from 25-12-1886, the period of limitation of 60 years for redemption of land had expired in 1946 i.e. Before partition of the sub-continent, therefore, the rights of mortgagor in the land stood extinguished by operation of section 28 of the Limitation Act in 1946 and it vested in the evacuee mortgagees absolutely free from said mortgage and so in the Central Government under the Land Settlement Act and when allotted to the petitioner it carried with it the same status.
10. For the foregoing reasons this writ petition must succeed. It is hereby accepted and the proceedings initiated by respondent No. 3 for redemption of land and the impugned orders passed by the authorities below are hereby declared to be without lawful authority and of no legal effect and are, therefore, quashed. However, the parties are left to bear their own costs.