' This is an appeal under section 14 (2) of the Redemption and Restitution of Mortgage Lands Act, 1964 against the order of the Additional Commissioner, Rawalpindi dated 31-5-1989 whereby he dismissed the appeal of the appellants and upheld the order of the Assistant Commissioner/Collector, Rawalpindi dated 9-7-1988, allowing the respondents to redeem the mortgage of land bearing Khasra Nos. 136, 765, 203, 204 and 207 measuring 29 Kanals-8 marlas, situated in village Khanna Kak, Tehsil and District Rawalpindi.
2. The facts of the case, in brief, are that the predecessors-in-interest of the parties were owners in a joint Khewat in Mauza Khanna Kak Tehsil and District Rawalpindi. They mortgaged some land including the suit land bearing Khasra Nos. 136, 765, 203, 204 and 207 with the predecessors of Gurdat Mall and Ram Chand (non-Muslims of Rawalpindi), in the year 1880 through registered Mortgage Deed dated 14-8-1980 and delivered possession of the same to them. In the year 1930, Sher Ahmed, the predecessor-in-interest of the present appellants, got his half share redeemed from the aforesaid Gurdat Mall and Ram Chand and at the same time purchased the mortgagees' rights of the remaining half belonging to his co-mortgagor, Feroze Khan, the predecessor-in- interest of the present respondents, through Mutations Nos. 766 and 767 dated 24-6-1930 and No, 768 and 769 dated 12-8-1930. The possession of the redeemed land was delivered to Sher Ahmed which remained with him and his successors-in-interest, i,e. The appellants, since then. The respondents Nos.1 to 6 made an application to the Assistant Commissioner/Collector, Rawalpindi for the redemption of the suit land on 19-11-1986. The AC Collector allowed the application vide his order dated 9-7-1988, holding therein that the limitation period started afresh on redemption of land in 1930. Aggrieved by the order of the AC Collector, the appellants preferred an appeal before the Additional Commissioner, Rawalpindi who dismissed the same vide his order dated 31-5-1989.
3. I have heard the learned counsel for the parties.
4. The learned counsel for the appellants raised the following contentions in support of the case of his clients:-
(i) The Courts below were wrong in holding that limitation started from the date when Sher Ahmed, predecessors-in-interest of the appellants, redeemed the land from non-Muslims in 1930. In fact the actual date of mortgage was 14-8-1880 when the predecessors-in-interest of the parties mortgaged the suit land with the non-Muslims through registered deed of even date as recorded in Misal Haqiat of 1882 and not the subsequent dates 24-6-1930 and 12-8-1939 when Sher Ahmed redeemed the entire land from non-Muslim mortgagees. Being one of the co-mortgagors, Sher Ahmed, was entitled to redeem the whole mortgage, which he did and was thus subrogated to the rights of the original mortgagees in terms of the amended sections 92 and 95 of the Transfer of Property Act. Under the doctrine of subrogation, as now expressly recognised under the said sections, the co-mortgagor redeeming the whole mortgage replaces the original mortgagee in respect of the shares of the other co-mortgagors and accordingly the suit against him for redemption by the other co-mortgagors would come within Article 148 of the Limitation Act, and time would run, in such a case, not from the date of redemption by the redeeming co-mortgagor but from the date when it would have run against the original mortgagee had he been a defendant i,e. From the date when the original mortgage was redeemable.
(ii) Sher Ahmed predecessor-in-interest of the appellants did never make any acknowledgment of liability for the renewal of limitation at the time of redemption of the mortgage in the year 1930, or thereafter. His successors-in-interest too did not make any such acknowledgment. Hence the respondents cannot take advantage of section 19 of the Limitation Act for reckoning the limitation from the date of redemption by Sher Ahmed.
(iii) The finding of the learned Collector that the appellants had lost possession of the suit land after its redemption in the year 1930 is based on mere conjectures and does not find support from the relevant Revenue Record. On redemption, Sher Ahmed was immediately put in possession of land which, according to the entries of all the jamabandis and Khasras Girdawari prepared since after 1930, remained all the time with him and his successors-in-interest without any interruption.
(iv) The limitation for a suit for redemption under Article 148 of the Limitation Act is 60 years. This time was allowed to expire on 14-8-1940 without any fresh contract between the parties. As such the substantive right of the respondents in the mortgaged land stood extinguished on the principle of extinctive prescription embodied in section 28 of the Limitations Act--resulting in the creation of a right and title in the appellants as mortgagees in possession.
(v) The relevant law and the rulings of the superior Courts cited by the counsel of the appellants before the Revenue Authorities below were not taken into consideration by them and they proceeded to base their orders on mere surmises which have resulted in illegal decision and great miscarriage of justice. (Reliance was placed on a number of rulings as mentioned in the memorandum of appeal).
5. The learned counsel for the respondents brought forth the following points in rebuttal:--
(a) The date of original mortgage is ambiguous. No specific date is available from which the time will run.
(b) Limitation will start from fresh mortgage under section 19 of the Limitation Act i,e. From 1930.
(c) The orders of the Courts below are consistent with law and do not require any interference.
(No authority was produced).
6. I have given my anxious consideration to the arguments of the parties, the relevant law, the rulings/authorities quoted by the learned Counsel of the appellants and the material available on record.
' The main issue that requires determination in this case is the point from which the limitation runs.
If it runs from 14-8-1880, then the appeal must succeed. If it runs from 1930 then the impugned order does not call for any interference. A reference to sections 92 and 95 of the Transfer of Property Act, 1882, at the very outset, would be helpful in the proper analysis of the issue. These sections did not exist in the present form and shape in the original text. The same were amended in 1929 to remove any ambiguity or confusion in the meaning of earlier sections. Even the plain reading of the new section makes it clear that a mortgagor, on redeeming the share of the property of his associate, has the same rights as the mortgagee from whom he redeems the mortgage. In other words the co-mortgagor who redeems the land of other co-mortgagor is subrogated to the rights of the original mortgagee. It may be said that he steps into the shoes of the original mortgagee in respect of the share of other co-mortgagor and travels in the time span, beginning from the date of initial/original mortgage, without any break or pause. Section 19 of the Limitation Act does provide some break or pause in the shape of an acknowledgment of liability by the co-mortgagor at the time of redemption of the mortgage of his fellow mortgagor.
Article 148 of the Limitation Act lays down that the mortgaged land can be redeemed by the mortgagor within 60 years. If redemption is not resorted to within 60 years, then the substantive right of the mortgagor in the land shall stand extinguished at the determination of the said period within the meaning of section 28 of the Limitation Act resulting in the creation of a right and title in favour of the mortgagee in possession.
' Here in this case the predecessors-in-interest of the appellants and the respondents mortgaged their land including the suit land with the predecessors of Gurdat Mall and Ram Chand on 14-8- 1880. Sher Ahmed the predecessor-ininterest of the appellants not only redeemed his portion of land but also redeemed the share of land belonging to his co-mortgagor Feroze Khan, the predecessor-in-interest of the respondents vide Mutations Nos. 766 and 767 dated 24-6-1930 and Nos. 768 and 769 dated 12-8-1930. Sher Ahmed did not make an acknowledgment of liability in terms of section 19 of the Limitation Act for the renewal of limitation in the year 1930 or thereafter.
So, was the case with his successors i,e. The appellants. Such being the state of affairs, the respondents are debarred from taking advantage of section 19 of the Limitation Act for reckoning the limitation from 24-6-1930 or 12-8-1930. Mutation of names in the Mutations C Register is a mere formality to substitute the original mortgagee by his successors. Therefore, terminus a quo in this case cannot be the dates when Sher Ahmed redeemed the land by oral mutations in 1930.
' As there was a replacement of one mortgagee by another mortgagee i,e Sher Ahmed, the predecessor-in-interest of the appellants, without any intervention as envisaged by section 19 of the Limitation Act, time would run from the date of original mortgage i,e. 14-8-1880.
' I am fortified in my views by the rulings of the superior Courts as given
(d) 40 All 683
(e) AIR 1937 Patna 60.
(f) PLD 1958 (W.P.) Karachi 534.
' The facts as given in PLD 1972 Peshawar 78 are almost on all fours with those of the instant case. It will, therefore, be worthwhile to quote the said ruling: ' In view of this discussion our answer to the question referred to us for decision is that a suit against a co-mortgagor who has redeemed a mortgage and is thus, subrogated to the rights of the mortgagee, by the non-redeeming mortgagor for redemption would be governed by Article 148 of the Limitation Act, provided the period of 60 years prescribed thereunder has not expired from the date when the property was mortgaged by all of them. In case the said period has expired the co-mortgagor would still be able to recover his share of the property by filing suit within 12 years under Article 132 of the Limitation Act and for this purpose the period of limitation would commence from the date when the property was redeemed by the co-mortgagor."
PLD 1958 (W.P.) Karachi 534 deals with section 19 of the Limitation Act and reads as under:-- "Admission in writing cannot be treated as acknowledgment unless it is in the nature of an unqualified acknowledgment of a subsisting liability."
' The case of the appellants/respondents has already been measured by the yardsticks as enunciated in the above rulings. It was found that the limitation in this case would run from 14-8- 1980. The predecessor-in-interest of the appellants took the lead while the predecessor-in-interest of the respondents did not bother and remained behind. He and his successors-in-interest (the respondents) slept over the issue and made no attempt to secure an acknowledgment of liability within the meaning of section 19 of the Limitation 0 Act. Even a simple novation of contract between the parties is not available.
' The respondents made no effort to invoke Article 132 of the Limitation Act to their advantage. They, very conveniently, allowed 12 years from 1930 onwards to slip away. They had, thus, no case but they were unduly favoured by the Collector and the Additional Commissioner, Rawalpindi vide orders dated 9-3-1988 and 31-5-1989 respectively. The said orders, being against facts and law, are not sustainable.
7. In view of what has been stated in the preceding para I accept the appeal and set aside the impugned orders both of the Additional Commissioner dated 31-5-1989 and the Collector dated 9- 7-1988 and declare the ownership right of the respondents in the suit land as extinguished and vested in the appellants.