' Through the instant civil revision petition under section 115, C.P.C. Chaman Khan has challenged the judgment and decree dated 18-1-1987 of the Additional District Judge, Bannu at Lakki whereby he dismissed the appeal filed by the defendant-petitioner against the judgment and decree dated 7-5-1986 of the Civil Judge, Lakki vide which the suit of the plaintiffs-respondents was decreed.
2. Facts of the case in brief are that Naqibullah Khan brought a suit in the Court of Civil Judge, Lakki for a declaration that land measuring 7 Kanals 8 Marlas as detailed in the plaint having not been redeemed by the owners mortgagors within prescribed limit of 60 years he has become owner by way of prescription. The suit was contested by the defendants and the pleadings of the parties obliged the trial Court to frame the following issues:--
(1) Whether the plaintiff has got a cause of action? (2) OPP. Whether the suit is within time? OPP.
(3) Whether the plaintiff has prescribed title to the suit land as time-barred mortgage? OPP.
(4) Whether the impugned mortgage is not 60 years old and the plaintiff is not in possession of the suit land? OPP.
(5)Relief.
' After recording the evidence of the parties pro and contra the learned trial Judge came to the conclusion that since 60 years had elapsed over the mortgage and 12 years for the co-mortgagors to redeem their respective shares the plaintiff matured his title by way of prescription and accordingly decreed his suit. It is worth noticing that during the pendency of the suit Naqibullah plaintiff died and the suit was contested on his behalf by his legal representative. Aggrieved by the conclusion of the trial Court Chaman Khan one of the defendants-co-mortgagors went in appeal in the Court of the learned Additional District Judge who too concurred with the findings of the trial Court and hence the instant civil revision petition.
3. Arguments of the learned counsel for the parties have been heard and record of the case has been thoroughly examined.
4. The land in suit belonged to Mirai and Mira Khel. They mortgaged the said land with one Hakim Khan through Mutation No,1264 attested on 27-6-1910. Subsequently Hakim Khan sold his mortgagee rights in favour of Akbar vide Mutation No,9797 attested on 30-11-1926. On the death of Akbar his inheritance devolved on his son Said Akbar through Mutation No,14940 attested on 21-7- 1936. Said Akbar died and his inheritance devolved on his widow Mst. Fatima and his son Sarfraz vide Mutation No,17347 attested on 3-4-1942. Sarfraz and Fatima sold their rights to Saleh Khan son of Umar Khan by Mutation No,20410 attested on 29-6-1945. Muhammad Ayaz son of Mirai the original mortgagor got his share in the suit land i.e, 19/93 share redeemed in his favour through Mutation No,30275 attested on 8-7-1961 and purchased the mortgagee rights in respect of the rest of the suit land coming to 74/93 share vide Mutation No,30276 dated 8-7-1961. Needless to point out here that on the death of Mirai aforesaid his inheritance had devolved on Baraim, Muhammad Ayaz and one Muhabbat his sons vide Mutation No,7911 attested on 23-1-1923. Plaintiff Naqibullah is the son of aforesaid Muhammad Ayaz, who, as pointed out above, died during the pendency of the suit and is now represented by his legal heirs, the respondents in the instant civil revision petition.
On the other hand defendants Chaman Khan and Taj Muhammad are the sons of Muhabbat.
Muhammad Ayaz is the son of Mirai and Mst. Noor Jana is the widow of Muhabbat. According to the plaintiff 60 years having elapsed since the land was mortgaged by the predecessor.-in-interest of the defendants and having not been redeemed by the owners thereof he has become owner by prescription. The question that falls for determination is whether by getting his share in the suit land redeemed and purchasing the mortgagee rights in respect of the rest of the land by Muhammad Ayaz father of the plaintiff, the plaintiff can claim his right by way cf prescription to the disadvantage of the co-mortgagees. The second question is whether 60 years have elapsed to attract the principle of prescription. It is now well-settled that the possession of one co-mortgagor redeeming the whole property does not at once become adverse automatically i.e, from the date of such redemption as against the other co-mortgagors. When the delivery of possession is made by the mortgagee to the redeeming co-mortgagor the property is delivered to the latter on behalf of all the persons interested and the initial possession taken by him is in a representative capacity, and therefore, not at all adverse, The character of such representative possession would not change unless subsequently there is an assertion of adverse title to the knowledge of the other co- mortgagors. The plaintiff Naqibullah purchased the mortgagee rights from Akbar Ali Khan through Mutation No,37918 attested on 28-11-1981. This Akbar Ali Khan had previously purchased the mortgagee rights from Muhammad Ayaz son of Mirai through Mutation Nos.37594 and 37595 on 22-2-81. It is an admitted proposition of law that a co-mortgagor redeeming the mortgaged property his possession becomes that of a charge holder and the suit by an other co-mortgagor in that situation would be hit by the provisions of Article 144 of the Limitation Act and that too when the possession of such defendant-co-mortgagor is adverse only on open assertion of exclusive title by him. In Behram Khan v. Khawas reported as (PLD 1964 (W.P.) Peshawar 154) it was held that:-- "the position of a co-mortgagor who redeems the whole of the mortgaged property is that of a charge-holder and that a suit by another co-mortgagor for possession of his share is governed by Article 144 and not by Article 148. The possession, of such co-mortgagor becomes adverse only when there is any open assertion of an exclusive title by him,"
' In the instant case as pointed out above Najibulah plaintiff stepped into the shoes of the mortgagee on 28-11-88, and therefore, his possession if at all is taken to be adverse is to be reckoned from that date. The co-mortgagor of the land in suit i.e, the petitioner has as such ample time for redeeming the land from the plaintiff who is instantly a charge-holder on their behalf because under Article 144 a suit for the recovery of possession can be brought within 12 years.
Naqibullah became the charge holder in November, 1981 and immediately thereafter instituted the instant suit which on its very face was premature and the learned trial Court has wrongly opined that the co-mortgagors had to redeem their shares within 12 years of the purchase of mortgagee rights by Muhammad Ayaz because even Muhammad Ayaz Khan sold his rights to Akbar All Khan through Mutations Nos.37594 and 37595 attested on 22-2-1981. It has nowhere been established that Muhammad Ayaz ever asserted adverse possession as a charge holder. The land in suit was mortgaged with Hakim Khan by Mirai and Mirakhel on 27-6-1910. This Hakim Khan sold his mortgagee rights to Akbar son of Jandar on 30-11-1926. On the death of Akbar the mortgage was inherited by his son Said Akbar on 21-7-1936. The inheritance of Said Akbar on his death devolved on Mst. Fatima his widow and Sarfraz his son on 3-4-1942. Said Fatima and Sarfraz further sold the mortgagee rights to Saleh Khan on 29-6-1945. For the redemption of the mortgagee rights the limitation is fixed as 60 years under Article 148 of the Limitation Act. It is well established that sale of mortgagee rights amounts to acknowledgement and the time for redemption of mortgage in such cases starts afresh from the date of sale of the mortgagee rights. Similar view was expressed in All Bakhsh v. Member, Board of Revenue (1988 M LD 922). Thus on this principle as well the suit in hand is premature as 60 years have not as yet elapsed since the sale of the mortgagee rights.
5. Learned counsel for the plaintiff-respondent argued that such pleas had not been taken by the defendant-petitioner in his written statement and that at this stage the matter should not be viewed beyond the pleadings of the parties. This objection of the learned counsel carries no weight because the position of a charge holder and the question of acknowledgement are legal questions and plea of non-observance with provisions of law having not been specifically taken in the written statement is no bar for its raising in the upper forums. The application and interpretation of a question of law is the duty of the Court which has to be performed by the Court itself and the non- observance of such a plea in the pleadings cannot oust the affected party from taking such a plea at any stage. In Khan Azizul Hassan Khan appellant v. Haji Muhammad Ismail respondent (PLD 1972 Lah. 143) it was held that:-- "Plea of non-observance with provisions of law not adverted to in written statement before trial Court--Duty of Court to apply that law."
' Similar view was expressed in Samar Qand and another appellants v . Muhammad Yunis (PLD 1972 Pesh. 115) wherein it was held that:- "Point not raised in written statement and no issue framed by trial Court-- Certain law on facts admitted or proved, becoming applicable-- Duty of Court to apply that law even in second appeal."
' In this context it may well be observed that despite the fact that the learned Additional District Judge in his impugned judgment admitted the factum of sale and purchase of mortgagee rights, he did not give any finding with regard to the legal liabilities coming out of the sale of the mortgagee rights. The judgment of the Additional District Judge would suggest that he has disposed of the appeal in a summary manner having no regard to the facts and the law involved in the matter. It is needless to remind the learned Appellate Court of his E liabilities that appeal is the statutory right of a party and once it is admitted for hearing the entire case is reopened and the Appellate Court is supposed and required to give his findings on all the issues both on the points of law and facts.
6. For the foregoing reasons I am of the firm view that the suit filed by the plaintiff-respondent was premature and both the Courts below have committed illegality and irregularity in decreeing the suit of the plaintiff-respondent. Accordingly by accepting this civil revision petition I set aside the judgments and decrees of the Courts below and dismiss the suit of the plaintiffs-respondent as premature. Keeping in view the peculiar circumstances of the case the parties are left to bear their own costs.