1. SALAHUDDIN AHMED, J.-This petition for special leave to appeal is from the order of a learned Single Judge of the Peshawar High Court dismissing the second appeal preferred by the petitioners.
2. The petitioners are successors-in-interest of one Gujjar to whom Rahim Bakhsh had mortgaged the house in dispute with possession, first for a sum of Rs.500 for three years on the 16th of April 1936, and again for a further sum of Rs.500 on the 28th of July 1938, with the period extended till the 22nd of April 1942.
3. On the 16th of September 1939, Gujjar created a sub-mortgage of his mortgage right, and also mortgaged a house of his own in favour of Thakkar Singh for Rs. 1,000 with the stipulation that the amount would be payable on demand. It is stated that the sub-mortgage was with possession but Gujjar was to continue in possession of both the houses as a tenant at a monthly rent of Rs.15.
4. Gujjar died in 1940/41, and he was ultimately succeeded by the petitioners as successors-in- interest.
5. It may be stated here that the disputed house originally belonged to Amin, who died in 1935, leaving behind as his heirs, a son Haji Rahim Bakhsh, the original mortgagor, and a daughter, Mst.
6. Amena Bibi.
7. On the 29th of October 1941, Haji Rahim Bakhsh executed a sale deed in favour of his sister, Mst.
8. Amena, in respect of his 2/3rd share in the disputed house, and therein admitted the 1/3rd share of Mst. Amena Bibi in the house.
9. On the 17th of May 1944, Mst. Amena Bibi paid Rs. 1,000 to the sub-mortgagee Thakkar Singh, and the payment was endorsed on the sub-mortgage deed as well as acknowledged by a separate receipt., On the 19th of May 1947, Mst. Amena Bibi made a gift of the entire disputed house in favour of a distant relation, Abdulla Jan, and the latter made a gift of a half of the house to his wife, Azmat Begum on the basis of a dower deed.
10. On the 17th of November 1953, Abdulla Jan and Mst. Azmat sued the petitioners for ejectment of the petitioners and for recovery from them of rents amounting to Rs. 1,080 for the period 1-11-1950 to 1- 11-1953. The suit was dismissed in July 1957, on the ground that the relationship of land--lord and tenant was not-established. The plaintiffs' appeal was dismissed by the Additional District Judge, Peshawar, on the 29th of April 1959, On the 1st of September 1959, Abdulla Jan and Mst. Azmat filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, against the petitioners for their ejectment. This applica--petition was also dismissed on the 27th of February 1962, on the ground that the relationship of landlord and tenant was not established. The appeal from this order was dismissed by the District Judge, Peshawar on the 26th of May 1962. The second appeal was dismissed in limine by the Peshawar High Court.
11. On the 31st of October 1962, Abdullah Jan and Mst. Azmat filed the present suit against the petitioners for possession of the entire house or in the alternative for possession by redemption but without payment of the mortgage amount inasmuch as the amount had already been entered in the mortgage deed and also acknowledged in the aforesaid receipt. The trial Court dismissed the suit. The Court, inter alia, held that the suit was barred under Article 142 of the Limitation Act, and that the question of any subsisting mortgage in respect of the disputed house did not arise inasmuch as upon the plaintiffs' own evidence, Mst. Amena Bibi had redeemed the house from Thakkar Singh, the sub-mortgagee, and, therefore, the question of redemption did not arise. On appeal before the District Judge, the plaintiffs pressed only these points which were covered by issues Nos.4 and 5 before the trial Court. The learned District Judge held that the mortgage between the original mortgagor Rahim Bakhsh and mortgagee Gujjar or for the matter of that his successors the present petitioners still subsisted, and the suit was, therefore, within time under Article 148 of the Limitation Act. The appeal was accordingly allowed and the plaintiffs' suit was decreed. On second appeal the High Court maintained the order of the learned District Judge.
12. Hence the present petition.
13. The learned Single Judge of the High Court has held that the transaction between Gujjar and 1hakkar Singh so far as the disputed house is concerned, was a sub-mortgage, and it did not operate as severing the relation of Gujjar as mortgagee with the original mortgagor Haji Rahim Bakhsh. Furthermore that there was no privity of contract between Haji Rahim Bakhsh and Thakkar Singh sub-mortgagee. It was held that Mst. Amena Bibi had stepped into the shoes of the original mortgagor Haji Rahim Bakhsh on the basis of the aforesaid sale deed of 1941, and she had a subsisting right to redeem the mortgage within the period of 60 years a prescribed under Article 148 of the Limitation Act. The learned Single Judge observed that this right of the plaintiffs- mortgagors to redeem could not be extinguished or destroyed by any admission of the plaintiffs. In other words there can be no admission on a question of law.
14. We agree with the views expressed by the learned Single Judge and accordingly find no substance in the contention advanced on behalf of the petitioners that the suit had become barred by limitation.
15. The petition is accordingly dismissed.