' This civil revision arises from the judgment and decree of the learned Additional District Judge-II, Swabi dated 7-10-1989 affirming the judgment and decree of the learned Additional Civil Judge-II, Swabi dated 11-10-1987 whereby the suit for redemption of land measuring 8 kanals 8 marlas and situate in village Yar Hussain, Tehsil Swabi, was decreed in favour of the plaintiffs-respondents.
2. The relevant facts, briefly stated, are that Mutazam and Azam sons of Hasham and Karim and Dooranai Sons of Rahim were owners-mortgagors of land bearing Khasra No,2396 corresponding to new Khasra No,265 while Saadat and Khanizaman sons of Jalal were the mortgagees. The said mortgagors got the mortgage redeemed from Saadat and Khanizaman mortgagees through Mutation No,11323 sanctioned on 22-2-1924 (Exh.P.W.3/1) and created a new mortgage of the same land in favour of Nauroz who has been later on described as Noorullah in Revenue Record by Mutation No,11324. This mutation (Exh.P.W.2/10) was entered on 16-2-1924 but was sanctioned on 9- 3-1924. By Mutation No,2049 sanctioned on 26-6-1928 Dooranai, one of the mortgagors, sold equity of redemption of his share to Zaristan and in the subsequent Jamabandis for the year 1933-34 onwards till the year 1959-60, extracts Exh.PW.1/3 to Exh.PW.1/9, Zaristan came to be recorded as one of the mortgagors. On the basis of Mutation No,90Q2 sanctioned on 2-11-1965 Noorullah transferred his mortgagee rights to Said Muhammad for a sum of Rs300. On 9-6-1983 Muhammad Akram and six others, successors-in-interest of Zaristan aforesaid, filed a suit in the Court of Civil Judge, Swabi, for redemption of the land measuring 8 Kanals 8 Marlas bearing Khasra Nos.264 and 265 on payment of Rs,70 representing the original mortgage charge. In the alternative, a decree for possession of 4 Kanals and 7 Marlas of land out of Khasra Nos.264 and 265 aforesaid was claimed.
The suit was resisted by the successors-in-interest of Said Muhammad, defendants Nos.1 to 10, both on the legal plane as well as on merits. It was, inter alia, submitted that there was no relationship of mortgagors and mortgagees between the parties and that, in any case, the answering defendants had become owners of the sui land by efflux of time and the mortgagors had lost their rights to redeem the same and the mortgage stood extinguished.
3. On the pleadings of the parties as many as sixteen issues including the relief were framed but for the purposes of this revision petition only the following issues are relevant:-
(4) Whether the suit is within time?
(5) Whether the defendants have become owners of the suit land on acco of time-barred mortgage?
(9) Whether in the alternative the defendants have matured their title to t suit property through adverse possession for more than twelve years?
(10) Whether Khasra No,2396 was redeemed through Mutation No,113 attested on 22-2-1924 from ex-mortgagees?
(11) Whether Khasra No,2396 was mortgaged vide Mutation No,113 attested on 9-3-1924 by Muzzam etc. With Nauroz?
(12) Whether the predecessors-in-interest of defendants Nos.1 to 10 h purchased the mortgagee rights of Noorullah?
(13) Whether the plaintiffs are entitled to the decree for redemption of suit land?
4. The learned Addl. Civil Judge-II, Swabi found issues Nos.4, 10, 11, 12 and 13 in favour of the plaintiffs while issue No,9 against the defendants and in consequence granted a preliminary decree for possession by redemption of the suit land on payment of Rs,75 to the plaintiffs including the share of pro forma defendants Nos.11 to 13 and left the parties to bear their own costs. The petitioners challenged this judgment and decree before the learned Additional District Judge-II, Swabi, who, on the findings on the issues aforesaid, concurred with the learned trial Judge and dismissed the appeal. Dissatisfied with the said judgments and decrees, the petitioners have filed the revision petition before this Court.
5. The learned counsel for the petitioners vehemently contended that the judgment of the Appellate Court could not be treated as "judgment" within the meaning of Order XLI, rule 31, C.P.C. In this context he drew my attention to the observations of the learned Additional District Judge contained in para. 6 of his judgment that the petitioners "have assailed the findings of the lower Court on almost all the issues by stating that the defendants/appellants have prescribed their title through adverse possession for more than 12 years regarding Khasra No,2397 while (they) have prescribed title over the suit land bearing Khasra on.2396 by time-barred mortgage for having been in possession thereof for at end of years" still he expressed his view in para-8 of his judgment in the following words:- "Otherwise too, the parties have well understood the dispute between them and have produced all available evidence, therefore, this matter cannot be re-opened at this stage. So far the findings of the learned lower Court in respect of other issues are concerned they are also based on the proper appraisal of the evidence in view of the law on the subject and, therefore, call for no interference."
' The learned counsel for the petitioners, therefore, submitted that the peal was disposed of by the learned Additional District Judge without adverting the mandatory requirements of Order XLI, rule 31, C.P.C. To record its own clings on all the issues agitated before him after independent appraisal of the material on record.
6. No doubt the impugned judgment of the learned Appellate Court cannot said to be qualitative, nonetheless use of the words "they have assailed the dings of the lower Court on almost all the issues" does not mean that findings all the issues in their entirety were assailed before him. The judgment is bled up. Nonetheless after reading the impugned judgment as a whole it pears that only following points were agitated before the learned Appellate court:--
(i) That the petitioners have prescribed their title to the land bearing Khasra No,2397 old corresponding to Khasra No,264 by adverse possession;
(ii) that as the mortgage of Khasra No,2396 old corresponding Khasra No,265 new having remained unredeemed for more than sixty years it had matured into the petitioners' ownership;
(iii) that the petitioners had made improvements in the disputed land -and, therefore, they were entitled to compensation therefor;
(iv) that the trial Court had not properly settled the issues whereby the petitioners have been prejudiced in their defence, and
(v) that the trial Judge had failed to appreciate the evidence adduced before him.
7. The Appellate Court had dwelt at length on the first four points. However, it did not dispose of point (v) properly. The question is whether it would be in the interest of justice to remand the case merely because out of five points agitated by the petitioners the learned Additional District Judge had not discussed only one of them and had not adverted to oral or documentary evidence for its decision.
8. It is well settled, no doubt, that when the judgment of the Appellate Court is not strictly in accordance with the provisions of Order XLI, Rule 31 of the Code of Civil Procedure (V of 1908) it should be remanded. But it is equally settled that an identical argument that the learned Judges in the High Court should not have decided the case themselves but should have remanded the case to the proper Court for determination of the question as to whether there was a valid tenancy in the case, was repelled by their Lordships of the Supreme Court in Paramatha Nath Choudhry v.
Kamir Mandal PLD 1965 Supreme Court 434 and it was observed:- "A remand should not be lightly ordered if the evidence on the record is sufficient for the Appellate Court to decide the question itself. There can be no bar to the Court doing it."
9. Even in a case of Aulad Hussain v. Khairunisa (1986 MLD 1989) a similar prayer made by the appellants was not acceded to and this principle was reiterated that notwithstanding the fact that the judgment of the Appellate Court was not strictly in accordance with Order XLI, rule 31 ibid the High Court in second appeal would not order the remand of the appeal when already protracted litigation will have a further chequered career with the result of giving long rope to the tenant and no relief to the landlord in good time provided there is also sufficient material to decide the point in controversy.
10. Respectfully following the dictum of the Supreme Court laid down in the case of Paramatha Nath Choudhry, I must hold that remand of a case should be sparingly resorted to and should not be ordered as a matter of routine even if the judgment of the lower Court does not come up to the prescribed standard provided, however, that there is sufficient material on the file to decide the point in controversy. While disapproving the slipshod manner in which the appeal had been disposed of by the learned Additional District Judge, I am not inclined to remand the appeal, for, sufficient material is available on the file to dispose of the points agitated before him and reiterated before me.
11. As indicated earlier the appeal before the learned Additional District Judge was pressed on many grounds, but those which have been reiterated before me are that the findings of the two Courts below on points (i) and (ii) formulated in para. 6 ante suffered from misreading and non- reading of evidence. Both these contentions, I am afraid are devoid of force. Both the Courts below have concurrently found that the Khasra No,2396 old corresponding to Khasra No,265 new was originally mortgaged in the column of cultivation by Mutazim on the one hand and Karim and Durrani on the other in equal shares to Saadat and Khanizaman which was redeemed by Mutation No,11323 (Copy of Exh.PW3/1) sanctioned on the 18th of February, 1924 and re-mortgaged to Nouroz or Noorullah the same day, by Mutation No,11324 (copy Exh.PW-2/10). The equity of redemption to the extent of 1/2 share thereof was indeed sold by Durrani to Zaristan predecessor-in-interest of the plaintiffs-respondents herein by virtue of Mutation No,49 sanctioned on the 26th June, 1928.
Similarly Noorullah sold his mortgagee rights to Said Muhammad the predecessor-in-interest of the defendants-petitioners herein on the strength of Mutation No,9002 attested on the 2nd of November, 1965. In this factual background it cannot possibly be agitated on behalf of the petitioners that disputed Khasra No,265 remained unredeemed for the period of limitation provided for by the Limitation Act, 1908. In the present case the original mortgage was created by Mutation No,11324 dated 11-2-1924. This suit for redemption brought on 9-6-1983 is apparently within sixty years. When the mortgagee asserts that the mortgage in his favour subsists for more than sixty years the onus is on him to prove it. In the instant case there is not an iota of evidence on the record to draw such an inference. Consequently the finding of the two Courts below on this score is unexceptionable and calls for no interference in my revisional jurisdiction under section 115 of the Code of Civil Procedure, 1908. This much about the second point.
12. It has been conceded at the Bar that there is no mutation on the record evidencing mortgage of Ithasra No,2397 old corresponding to Khasra No,264 new. In the extracts (Exh.PW-2/D2) and (Exh.PW2/D1) for the years 1924-25 and 1926-27 respectively Khasra No,2397 old corresponding to Khasra No,264 new (erroneously recorded in Khasra No,263 in the latter) stand recorded in the column of cultivation as mortgaged on behalf of Sher Dil etc. To Gharibai. But in the extract' Ex.PW1/1 from the Settlement Record of 1926-27 onwards this Khasra No, alongwith Khasra No,265 came to be recorded as mortgaged to Noorullah and the names of original mortgagors and the mortgagees qua Khasra No,264 could not be traced out. It was for the mortgagees to show as to how they came to be recorded as mortgagees of this last mentioned Khasra No,, which they have failed to do. They have been for the first time recorded as the mortgagees in the Settlement of 1926-27 and the suit for its redemption brought on 11-2-1983 being within sixty years was not barred by time.
13. Reverting to the plea of adverse possession over this Khasra No, it may be pointed out that when there was no basis for mortgage of Khasra No, 264, and the petitioners came to be recorded in the Revenue Record as sheer mortgagees in possession, the assertion of hostile title thereto by the petitioners is not sustainable in law. In this. Context, in the case of Mir Wajid All and another v.
Alidad Khan and another (AIR 1940 Patna 45), a learned Division Bench of Patna High Court held that a mortgagee who enters into possession of the mortgaged property in his capacity as mortgagee can never during the continuance of the mortgage assert any adverse possession against the mortgagor and that the mortgagor's right to redeem remains alive for sixty years and no question of adverse possession arises until after expiration of that period. This dictum is based on the Privy Council decision in the case of Khairajmal v. Daim (1905) 32 Cal 296. Again in Ghulam Haqani v. Lulekha (PLD 1953 Peshawar 65), it was held by Muhammad Shafi, J. As his Lordship then was, that land held under mistake believing that it belonged to those who later on asserted adverse possession thereto cannot be allowed to do so, in that, in such a possession, the elements, that the possession of the wrongdoer must be in denial of the title of the true owner, and it must be adequate in continuity, in publicity and in extent must be regarded as completely missing. In this case too, the petitioners were in possession of the land as mortgagees by mistake and, therefore, cannot be permitted to set up their hostile title to the said land.
14. Respectfully following the dicta in the above-cited case-law, I am also inclined to hold that as between the mortgagor and mortgagee possession of the land even by mistake for any length of time short of the statutory period of 60 years will be no bar or defence to a suit for redemption if the mortgagor is otherwise entitled to redeem it. This finding disposes of the contention of the learned counsel for the petitioners contained in point (i) formulated in para. 6 ante.
15. Before parting, it may also be pointed out that the relationship of mortgagor and mortgagee between the parties was denied not only in written statement but was asserted in the examination-in-chief of Wisal Muhammad defendant-petitioner who appeared not only for himself but also as attorney of other petitioners as D.W.1. In the cross-examination he admitted that the land in dispute has remained as mortgaged with them and that it was still mortgaged. Firstly he denied the title of the answering defendant-respondents to the disputed land including Khasra No,264 but in the next breath he expressed his ignorance as to the title thereof, and admitted on that account they had not objected to the title of the respondents thereto. In consequence the relationship of mortgagors and mortgagees even qua Khasra No,264 between the parties at least impliedly seems to have been admitted. Again the claim of compensation for the alleged improvements is far from proved and the concurrent findings of the two Courts below on the relationship of mortgagors and mortgagees between the parties and compensation for improvements is also unexceptionable and call for no interference.
16. The trial Court had decreed the suit leading the parties to bear their own costs. The Appellate Court also dismissed the appeal with no order as to costs. Both the Courts below have assigned no reason as to why the successful litigant had been refused his legitimate costs. Ordinarily a successful litigant is entitled to the costs. If the Courts find him disentitled to the costs they are legally required to give reasons for their refusal to burden the unsuccessful litigant with costs.
17. For the foregoing reasons, I find no substance in this revision and it is dismissed with costs throughout.