KHALIL-UR-REHMAN KHAN, J.-The facts necessary for the disposal of this second appeal are that Sultan, respondent, was owner of agricultural land measuring 80 kanals and 1 maria situated in village Natha, Tehsil Nankaha, District Sheikhupura. He had mortgage this land with Amir, Said, Sarwar and siddique respondent for Rs. 6500/- through mortgage deed dated 22.1.1958. Later on Sultan on 8.3.1961 sold land measuring 24 kanals and 16 marlas out of the total land owned by him in favour of Sohawa, appellant for ostensible consideration of Rs.1 1,000/- subject to mortgage of Rs.3000/- outstanding against the land. Sultan, respondent on the same day executed another sale deed in respect of land measuring 8 kanals for an ostensible consideration of Rs300/-. The land so sold was under the mortgage as indicated above against mortgage money of Rs.1000/-. It will, therefore, be noted that Sohawa appellant through to transactions purchased the land measuring 32 kanals and 16 marlas.
2. Inayat Ali, respondent, by filing to suits for possession through pre-emption sought to pre-empt the land subject-matter of aforesaid to sales. Both the suits were decreed on 283.1964. Inayat Ali, pre- emptor/respondent in the suit pertaining to 24 kanals and 16 marlas was directed to deposit Rs.7593/- less the zar-i-panjum already deposited by 5th of May 1964. In the civil suit pertaining to 8 kanals, Inayat Ali, pre-emptor was required to deposit Rs.2500/- less the amount of zar-i-panjum by 5th of May, 1964. Inayat Ali respondent admittedly failed to deposit the amount representing the mortgage money in Court. The pre-emption money minus the mortgage money was, however, deposited in Court within the the fixed under the decrees dated 28.3.1964.
3. Sohawa appellant submitted an application in each suit (Ex. P5 and Ex. P6) for payment of the decretal amount. The report was called for by the learned trial Court and the report submitted by the office was that full amount having not been deposited, the decrees do not subsist. Sohawa, appellant, thereafter withdrew the applications. Sohawa, appellant, then filed a suit for possession against Inayat Ali and others on the averments that the pre-emption decrees became ineffective and the suits stood dismissed as the pre-emption money as directed by the Court was not deposited in Court; that the decrees of pre-emption no longer subsist; that the defendants/mortgagees acting in collusion with each other have themselves broken the integrity of mortgage existing in favour of respondents No3 to 6 and with a view to defeat the right of the plaintiff/appellant redeemed the land subject-matter of the to sale transaction by delivering the possession to the respondents/pre-emptor and hence the plaintiff/appellant is entitled to seek possession on payment of Rs.4000/- the mortgage money. Para 6 of the plaint is reproduced for ready reference: The suit was resisted by the respondents on various grounds including the preliminary objection to the effect that the Civil Court had no jurisdiction to entertain the suit.
4. The issue pertaining to the a forenoted preliminary objection was framed and was decided by the learned trial Court in favour of the appellant/plaintiff vide order dated 15.3.1982. It was held that the Civil Court had the jurisdiction to entertain the suit. This order was challenged in revision jurisdiction (C.R.208/67) and the revision petition was dismissed by this Court vide judgment dated 26.11.1977. The observations made in the judgment dismissing the revisions petition read as under: - "There is nothing in the plaint to suggest that the respondent treated petitioner No.1 also as a mortgagee nor has the learned counsel for the petitioners been able to show me, any law that in the circumstances of this case petitioner No.1 could be deemed to be a mortgagee. On the other hand on the basis of averments in the plaint his position is more a kin to that of a trespasser who has secured possession of the land without being entitled to it and without having deposited the pre-emption money as required by 0.20 R 14 CPC. The petition has no force and is dismissed with costs".
5. The suit was then tried on merits and the learned trial Court vide judgment and decree dated 8.3.1976 dismissed the suit. The appeal of Sohawa appellant also- failed vide judgment and decree dated 17.6.1977. Both the learned Courts below recorded the findings that the preemption money was paid by Inayat Ali respondent in the manner noted in the judgment in compliance with the to decrees passed by the Civil Court and that the pre-emption money was deposited and paid within the and hence the pre-emption decrees stand intact with the result that appellants no more owner of the suit land and he has no right to get the suit land redeemed. This led to the filing of the present second appeal under Section 100 C.P.C.
6. Learned counsel for the appellant in support of the appeal argued that the payment allegedly made to the mortgagees out of Court cannot be treated as a payment in compliance with the direction of deposit in Court made in the decree and resultantly the alternative decree of dismissal of suit became operative. It was added that the finding returned by the learned Courts below is against the view of this Court expressed in Ghulam Mohyuddin vs. Muhammad Bakhash and another (PLD 1979 Lahore 766)
Ghulam Muhammad and another vs. Irshad Ahmad and another (PLD 1982 S.C. 282) and Muhammad Rafique vs. Barkat Ali and others (1984 CLC 3049). It was also argued that the assertion that the payment to the mortgagee was made with the the specified in the decreed does not stand established on record and as such learned Courts below erred in law in observing that the decree was duly complied with.
7. In reply, learned counsel for the respondents argued that the principle of equitable setoff applies and as the payment to the mortgagees has been certified by the to courts below in the present suit for possession, the learned Courts below were right in holding that the decree was complied with on account of deposit of the part of the pre-emption money in the Court and payment of the balance to the mortgages. In support of this plea reliance was placed on certain judgments whereby the deposit of the pre-emption money after deducting the cost awarded was treated to be valid and in each case the decree was held to have been sufficiently complied with. These cases need not be noticed as these proceed on altogether different principle and are not otherwise relevant as question of deduction of cost is not involved in the present case. It was argued that the judgment and decree passed in the pre-emption suit, did not contain the direction to deposit the amount in court. According to the learned counsel in the absence of special direction, the payment which now stand certified though made outside the Court was rightly treated as the one made in due compliance of the decree of the Court. Lastly, it was contended that the suit seeking redemption of a part of the mortgaged land in any case was incompetent and was thus liable to be dismissed on this score alone.
8. The last submission of the learned counsel for the respondents may be taken up first of all. The admitted factual position is that Sultan respondent had mortgaged the land measuring 80 kanals and 1 maria against Rs. 6500/- vide mortgage deed dated 22.1.1958. The land measuring 32 kanals and 6 marlas out of the aforesaid land was sold in to lots to Sohawa, appellant. Inayat Ali respondent filed to pre-emption suits which were decreed in his favour on 283.1964. He purchased the mortgagee rights vide mutation No389 (Ex. Dl) and mutation No.390 (Ex. D2)in respect of these to lots separately. The mutation of redemption (Ex. D3) was then got sanctioned. Inayat Ali respondent and other respondents, the mortgagees, themselves treated the land, the subject- matter of the to sale transactions separately from the remaining land. They thus having themselves broken the integrity of the mortgage, are estopped to contend that the land was initially mortgaged as one unit and as such cannot be got redeemed in lots. Moreover, the question of competence of the suit cannot be raised at this stage in view of the fact that the preliminary issue framed in this respect stands finally decided by the judgment of this Court in civil revision No.208 of 1967. This plea is, therefore, repelled.
9. The plea that Inayat Ali respondent was entitled to make payment out of Court as there was no direction in the judgment and the decree for making the deposit in Court, is without merit. The direction made in the judgment and decree is that, the plaintiff shall deposit Rs.2500/- which includes one-fifth pre-emption money already deposited on or before 5.5.1964 failing which the plaintiffs suit shall stand dismissed with cost. Similar is the direction made in other decrees. The zar-i-panjumand the balance of the pre-emption money short of mortgage amount admittedly was deposited in Court. Moreover this decrees was passed in terms of the Order 20 rule 14 CPC. A perusal of the decree and the rule quoted above, makes clear that the deposit was required to be made in Court and it is not necessary to specifically mention the word 'Court' in the judgment or decree as it is to obvious that the pre-emption money is to be deposited in Court.
10. The next plea that the principle of equitable set-of applies, has not been supported by citing any provision of law or precedent. In the case of Ghulam Mohyuddin vs. Muhammad Bakhash and another (PLD 1979 Lahore, 766) a Division Bench of this Court over-ruled the view taken in the case of Noor Ahmad and another vs. Muhammad Ramzan and another (PLD 1973 BJ 42) to the effect that the payment made out of Court though is not is strict compliance of the terms of the decree but if the same has been certified by the Court, it would be sufficient compliance. It was held that the alleged payment made out of Court by the respondents notwithstanding so-called certification was not in accordance with law and was of no avail to them. This very view was also taken by me in the case of Muhammad Rafiaue vs. Barkat ALi and others (1984 CLC 3049). It will also be noted that the certification of payment in the present proceedings is also of no avail as the pre-emptor did not the get the alleged payment certified from the Court which had granted the decree. Even otherwise the alleged payment of the mortgage money to the mortgagee/respondents cannot be held to be a payment made in due compliance of the decree dated 283.1964. As per direction in the decree, the payment was to be made less the amount of zar-i-panjum by 5th May, 1964. Inayat Ali allegedly made payment to the mortgagees oon 20,4.1964. The factum of purchase of mortgage right was got entered in the revenue record many months later as per Inayat Ali himself as to mutations were got attested on 3.11.1965. The redemption mutation No. 392 was also got attested on 3.11.1965 (Ex. D3). The fact that the payment was really made on 20.4.1964 has not been established by producing any sufficient evidence. It will be noted that the endorsement acknowledging payment of the mortgage money appearing on mortgage deed has not been proved though one of the mortgagees namely Muhammad Saeed (DW.I) and Muhammad Aslam (DW.2) the scribe of the said endorsement appeared in the witness box. Muhammad Saeed in his examination in chief stated that he had redeemed the land mortgaged with him and that on receipt of the money, mutation was got attested. He failed to give the date either of the receipt of the money or of attestation of mutation. Muhammad Aslam (DW.2) deposed that Inayat Ali had paid the mortgage money to Saeed and had received possession and that the payment had been made in his presence. In cross- examination, however, he added that Inayat Ali had redeemed the the land on 20.4.1964. It will, therefore, be seen that as per endorsement appearing on the deed, the payment was allegedly made on 20.4.1964 but the mortgage was redeemed on 3.H.1965. a perusal of Ex. Dl and Ex. D2 would show that the report of the purchase of mortgagee right was made to the patwari on 23.10.1965. The patwari accordingly recorded the statement in the relevant column of Mutation Register and mutation was ultimately entered on 3.11.1965. The purchase of the mortgagee rights took place for Rs.4000/- through endorsement made on the mortgage deed but the same is ineffective in law without registration.
Moreover, the assertion of Muhammad Aslam DW.2 that the land was got redeemed sq 20.4.1964 runs contrary to the version of Inayat Ali because according to him the land was got redeemed on 3.11.1965. It will, therefore, be seen that cogent evidence is not available on record to establish purchase of mortgagee rights by making payment to the mortgagees within the the specified in the decree i.e. By or before 5.5.1964
11. The net result of the above discussion is that the view formed by the learned Courts below that Inayat ALI was entitled to make payment of the mortgage money to the mortgagees out of Court and that the payment so made is to be recognized as sufficient compliance of the decree, is unwarranted in law. Even otherwise, the payment so made was not established to have been made before the date fixed in the decree. The result is that the decree remained uncompiled with and as such the alternative decree of dismissal of suit became operative. The learned Courts below were, therefore, not right in holding Inayat Ali respondent as owner of the land is dispute.
12. For the reasons given above, I have no hesitation in setting- aside the judgments and decrees of the learned Courts below and to hold that the appellant is entitled to the decree of possession. The payment of Rs.4000/- to the mortgagees made by the respondent is otherwise not disputed. The appellant is prepared to pay this amount to the respondent. In view of above, decree of possession of land, subject-matter of the suit is hereby granted in favour of the appellant subject to deposit of Rs.4000/- in the trial Court within to months. This sum of Rs.4000/- will be received by Inayat Ali respondent. In the above terms, the appeal is accepted. The parties are left to bear their own cost.