1. ANWA1tUL HAQ; J.-'This appeal, by leave of the Court is by the defendants, and has arisen out of a suit instituted on the 16th of January 1957 by respondents Nos. 1 and 2, via., Sherdil and Abdul Qayum, for the redemption of 15 kanals and 2 marlas of agricultural land situate within the limits of Hoti village in the Mardan district.
2. The land in dispute forms part of a bigger holding of 56 kanal originally owned by two brothers, Yar Mohammad and Ata Mohammad, sons of Dost Mohammad. They mortgaged the entire holding with one Muntazir Shah for Rs. 1,400 for a period of 12 years by a registered deed dated the 21st of November 1903. In the revenue settlement of 1925-26, fresh Khasra numbers were allotted to the land and on re-measurement, its area stood at 48 kanals and 11 marlas, Ata Mohammad died issueless but his brother Yar Mohammad was survived by his son Pordul. Pordul died issueless in or around the year 1939 and the land was then inherited by his coilaterals, Shah Pasand, Gul Faraz and Abdul Ghafur, under a mutation attested on the 19th of May 1939.
3. After thus being shown as owners of the land by entries in the revenue records, the three brothers applied to the Collector, Mardan, for the redemption of the mortgage under section 4 of the N.-W. F.
4. P. Redemption of Mortgages Act, 1935. The application was contested by the mortgages Muntazir Shah on the ground that the three brothers were not the owners or mortgagors of the property.
5. However, on Muntazir Shah's death, his legal representatives entered into a compromise with these brothers, as a result of which a compromise order was made by the Collector on 6-3-1944. The com--promise contemplated that possession of the land shall be delivered to them on the 1st of Har, corresponding to the 14th of June 1944. The decree for redemption granted by the Revenue Court was implemented by way of redemption mutation No. 1334 attested on the 25th of August 1944. For the first time, the change of ownership and possession was reflected in the Jamabandi prepared in 1948-49.
6. On the 13th of July 1956, the two sons of Shah Pasand exchanged 8 kanals out of the disputed land with some land belonging to respondent No. 1 Sher Dil. In the same year, by four unregistered deeds the children of Gul Faraz sold an area of 7 kanals and 2 marlas in favour of the repondents, Sher Dil and Abdul Qayum, with the result that these two respondents acquired a total area of 15 kanals and 2 marlas out of the entire holding held by shah pasand, Gul Faraz and Abdul Ghafur.
7. The vendees, Abdul Qayum and Sher Dil filed the present suit on 16-1-1957 for redemption of the mortgage in favour of Muntazir Shah, asserting that Jan Baz, Lal Baz and Alam Baz had no connection with the last owner Pordul, and any entry made in the revenue records connecting them with the said Pordul was obtained by fraud and was, as such, ineffective as against the interest of the true owners of the land.
8. The suit was resisted by the three brothers on the grounds that they were the real heirs of Pordul; that the mutation of inheritance attested on the 19th of May 1939 in favour of Shah Pasand, Gul Faraz and Abdul Ghafur was a mistake, which had been duly corrected by the mutation of 13th of March 1943 in their favour ; that the suit was barred by time, and that the plaintiffs were estopped by their conduct from challenging the correction mutation of 1943.
9. Upon the pleadings of the parties, the trial Court framed the following issues :- "(1) Whether the suit is within time ?
(2) Whether the plaintiffs have any cause of action against defendants Nos. 1 to 3 ?
(3) Are the plaintiffs estopped to bring the present suit against defendants N os. 1 to 3 ?
(4) Whether Shah Pasand etc. Were not the heirs of Pordul and mutation No. 715 was wrong ?
(5) Whether defendants Nos. 1 to 3 are the sole heirs of Pordul ?
(6) Whether plaintiffs are owners in the suit land by exchange and sale ?
(7) Whether plaintiffs are entitled to the possession of the suit area on payment of the mortgage amount, if so, how much ?"
10. The trial Court held that the suit was within time, that the plaintiffs had a cause of action, that they were not estopped from instituting the suit, that Shah Pasand etc. Were the heirs of Pordul, that defendants Nos .1 and 3 were not the heirs of Produl, that the plaintiffs were the owners of 15 kanals and 2 marlas of land on the basis of exchange and sale, and that they were entitled to the redemption of the whole of the land on payment of Rs. 1,400. On these findings, a preliminary decree for possession was passed in favour of the plaintiffs. This was followed by a final decree in due course.
11. The defendants thereupon went up in appeal, but the same was dismissed by the learned Additional District Judge, Mardan, on the 16th of December 1959. He upheld the findings of the trial Court on the question of the relationship of the contesting parties with the last owner Pordul. He observed that the pedigree-table of 1870 was not helpful as it was torn at certain places and, therefore, reliance was rightly placed on the pedigree-tablet of 1895-96 and 1925-26, according to which Shah Pasand etc. And not the defendants were the heirs of Pordul. On the question of limitation both the Courts took the view that there was nothing to show that Shah Pasand etc. Had any notice of the corrections made in the revenue records at the instance of the defendants, and, therefore, the suit was one for redemption of a mortgage, and had been filed within 60 years.
12. Thereafter, the defendants went up to the High Court in second appeal but failed. In his judgment dated the 30th of May 1969, a learned Single Judge upheld the findings of the two Courts below on all the issues arising in the suit.
(a) The legal position of the appellants, Lal Baz, Jan Baz and Alam Baz, with respect to the suit land after they had entered into possession in pursuance of the compromise redemption decree, obtained by them from the Revenue Court on 6-3-1944; and
(b) Whether the suit was barred by time or not?
13. On the first question, the submission made by the learned counsel for the appellants is that the Courts below have erred in thinking that the appellants had simply stepped into the shoes of the mortgagee. Relying on Raja Janaki Nath Roy v. Raja Pramatha Nath Malia (AIR 1940 P C 38), the learned counsel contends that this is not a case of subrogation in terms of sections 91 and 92 of the Transfer of Property Act ; on the contrary, it is a case of adverse possession as held in Behram Khan v. Khawas (PLD 1964 Pesh, 155).
(a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same ;
(b) any surety for the payment of the mortgage debt or any part thereof; or
(c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property.
92. Any of the persons referred to in section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.
14. The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of mortgagee whose mortgage he redeems.
15. A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated.
16. Nothing in this section shall be deemed to confer. a right of subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full."
17. It will be seen that in order to acquire the right of subrogation, it is necessary that the person redeeming the mortgage should fall within any of the categories enumerated in section 91. As, on the concurrent findings recorded by all the Courts below, the appellants are not persons having any interest in or charge upon the property mortgaged, or in or upon the right to redeem the same, they do not fall within clause (a) of section 91 ; nor do they fall within clauses (b) and (c) thereof: The learned counsel for the appellants is, therefore, clearly right in submitting that this is not a case of subrogation of mortgagee rights.
18. However, this finding does not in any manner advance the case of the appellants. In the case of Behram Khan, relied upon by the learned counsel, it was held that possession of a co-mortgagor, who has redeemed the' mortgage, becomes adverse only when there is an open assertion of exclusive B title by him. In the first place, the appellants were not co-mortgagors of their property ; in the second place, there is no evidence whatsoever on the record to support the assertion that the appellants had at any time asserted open and hostile possession as against the true owners of the property. It is significant that no issue was framed on the question of adverse possession, although in the written statement, the appellants had asserted that they were in possession as owners. The appellants had succeeded in surruptitiously getting the pedigree table corrected and by that device also having a consequential mutation of inheritance of Pordul entered in their favour. But Gul Faraz, Shah Pasand and Abdul Ghafur, the recorded owners of the property, were never given notice of these proceedings. It is indeed surprising that the Collector who ordered the correction of the pedigree--table, and the Revenue Officer who attested the mutation of inheritance in favour of the appellants, _and deleted the names of the previous owners, never thought it necessary to give an opportunity of being heard to the persons who had been shown as owners of the property since 19th of May 1939. In these circumstances, the possession, said to have been obtained by the appellants in June 1944, could not be described as overt, open and hostile as against the true owners. Ostensibly, the appellants had entered into some arrangement with the mortgagee and, therefore, the true owners would be entitled to presume that the appellants had stepped into the shoes of the mortgagee.
19. At this stage we may also refer to the statement made at the trial by the mortgagee's son Abdul Malik Khan, who was then a practising Advocate, and had entered into the compromise with the appellants. He stated that mortgagee rights were sold to the defendants. We have already held that the appellants, being strangers to the property, had no right to redeem the mortgage, which, therefore, remained intact. The appellants can, therefore, be treated only as purchasers of mortgagee rights from Muntazir Shah.
20. Now, on the question of limitation, it is clear that in these circumstances the suit must be treated as one for the redemption of a mortgage, and could be instituted within 60 years under Article 148 of the First Schedule to the Limitation Act. It was, therefore, clearly within time.
21. Even otherwise, if the suit is treated as a suit for possession, governed by Article 142 or 144 of the First Schedule to the Limitation Act, it is pertinent to mention that for the first time the corrected entry of inheritance in favour of the appellants appeared in the Jamabandi of the year 1948-49, and prior to that there was no evidence of any hostile assertion of title by the appellants.
22. Accordingly, the suit instituted on the 14th of January 1957 would be within 12 years of the cause of action, whichever Article might be held to apply.
23. For the foregoing reasons, we are satisfied that the suit has been correctly decided by the Courts below. The appeal, therefore, fails and is hereby dismissed. However, the parties are left to bear their own costs.