' SHAFIUR RAHMAN, J.--The plaintiffs/appellants happened to be the mortgagees under the defendants/respondents on the strength of a mortgage deed executed in 1894 and renewed in 1906. It was to all appearances a usufructuary mortgage. The owners/mortgagors instituted proceedings under the North-West Frontier Province Restitution of Mortgaged Lands Act, 1950 (Act XXXII of 1950) seeking restitution of the entire mortgaged land without payment of any amount.
Their claim succeeded only partly as noted by the trial Court that out of the area falling in suit Khasra Nos.377 to 380, 193/240 share and out of the area falling in suit Khasra Nos.356 to 358, 73/120 share area has already been restituted/redeemed by the owner mortgagors/defendants Nos.1 to 8 through the orders of the Court of Collector Abbottabad certified copy of which is Ex.D.W.No,1/1 which has already been incorporated in the Revenue Record through Mutation Nos.295 and 296." Notwithstanding such redemption, the defendants/mortgagees instituted a civil suit from which this appeal has arisen claiming that the entire mortgage as originally existed remained unredeemed for over sixty years and they had on that account become full owners of the land of which they were mortgagees. The suit was contested but the learned Civil Judge allowed them relief only in respect of the property of which redemption had not been allowed by the Collector and to which more than sixty years had elapsed, the mortgage remaining unredeemed all the while.
2. The plaintiffs, it appears, remained satisfied with the partial success. The defendants/owners went up in appeal but met with no success. They filed a Revision which was allowed and the entire suit of the plaintiffs was dismissed. The ground for dismissal is reproduced as hereunder:-- "Section 19 of the Limitation Act, however, acknowledges acknowledgment in writing of a liability signed by the party or his agent against whom such property or right is claimed. Resale of mortgagee rights by the second mortgagee to the first mortgagee effected through mutation may not apparently fulfil the requirements of the section as the same are not signed by the vendor/mortgagor/second mortgagee. Nonetheless the mutations do contain the specific acknowledgment of the original subsisting mortgage. Besides, mutations are preceded by incorporation of a report by the patwari under the signatures of the party to the transaction in the Roznamcha Waqiati which is further followed by specific acknowledgment/admission by the vendor/mortgagor before the Revenue Officer. In 1988 MLD 922 Gul Muhammad Khan, J. Held that sale of mortgagee rights by oral mutation amounted to an acknowledgment and time for redemption would start running from the date of sale of mortgagee rights."
3. Maulvi Sirajul Haq, Advocate, the learned counsel for the appellants stated that the judgment of the High Court is violative of the express language of section 19 of the Limitation Act which it purports to interpret. The creation of sub-mortgage by mutations is not disputed. What is disputed is the acknowledgment in writing, signed by the party against whom the acknowledgment is to be enforced. He has also pointed out that the decision relied upon by the High Court namely, Allah Bakhsh v. Member Board of Revenue, etc.(1988 M LD 922) proceeds on an actual assumption of the existence of a writing with signatures which assumption was demonstrated to be incorrect, so far as the facts of this case were concerned.
4. Mr.Abdul Hakeem Khan, Advocate, the learned counsel for the contesting respondents has on the contrary disputed the very mortgage being a usufructuary one and also claimed an extension in the period of limitation on account of the denial of relief to him under section 8 of XXXII of 1950. He has also pointed out that it was the defendants/respondents who had instituted proceedings under the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 (Act XIX of 1964) in 1973 for the remainder of the land when the plaintiffs instituted the suit in order to thwart the restitution and redemption of the remainder.
5. It is correct that the High Court's judgment resulting in the dismissal of the suit is based entirely on section 19 of the Limitation Act which provides as hereunder:-- "19. Effect of acknowledgment in writing.--(1) Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated; oral evidence may be given of the time when it was signed; but, subject to the provisions of the Evidence Act, 1872, oral evidence of its contents shall not be received.
' Explanation I.--- For the purposes of this section an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to a set-off; or is addressed to a person other than the person entitled to the property or right.
' Explanation For the purposes of this section, "signed" means signed either personally or by an agent duly authorised in this behalf.
' Explanation III.--- For the purposes of this section an application for the execution of a decree or order is an application in respect of a right."
6. An acknowledgment of the liability in respect of such property or right "has necessarily to be made in writing signed by the party against whom such property or right is claimed". Admittedly, in the case in hand no such writing duly signed is available.
7. In the case of Mst.Chandelinju and others v. Raghunathsingh and others (AIR 1952 Madhya Bharat 177) a Khewat entry was verified and signed by the Settlement Officer and by the mortgagee who admitted therein the fact that he was in possession of the mortgage lands by virtue of a registered mortgage deed. On the mortgagee's death his sons applied for mutation In their favour stating in the application that they were mortgagees. The settlement entry and the application were made within 30 years of the date of execution of the mortgage. It was on the strength of such writings duly signed that both the Khewat entry and the application for mutation were held to amount to conscious acknowledgement of existing liability, so as to extend the period of limitation under section 19 of the Limitation Act just reproduced above.
8. In the case of Allah Bakhsh (1988 MLD 922) the reasoning was as hereunder:--- "10. The question thus arising for determination is whether the time would start running from 1894 (the time of the mortgage) or a subsequent date? It is clear from the Collector's order that Mutation No,2876 dated 2nd February, 1917, of inheritance of the mortgage was attested in the name of Sobho, etc. Mortgagee's sons. Then Beli Ram mortgagee died and Mutation No,356 dated 2nd June, 1923 was attested in the name of his son. Then on the death of Sobho, a mutation of inheritance No,61 dated 26th March, 1939, was attested In his heirs' name. Similarly, the order dated 8th September, 1966, of the Collection mentions Mutation No,1686 dated 3rd February, 1967, about gale of the mortgagee's rights.
11. It was held in Lala Ganga v. Lachman (1924) 85 I.C. 633 (All) that where a mortgage was recited in the Vejib-ul-arz prepared during a settlement, it was open to the Court to presume under section 144 of the Evidence Act that the recital constituted an acknowledgment, within the meaning of section 19 of the Limitation Act. The mutation dated 3rd February,1907, is also a specific acknowledgment of the mortgage by the mortgagee and, therefore, the Additional Commissioner and the Member, Board of Revenue, ran in error in holding otherwise. Reference be made to M.C.Kadir v. Abdul Latif PLD 1970 Kar.
708. The limitation thus had not run out. The mortgagor's right was in subsistence and the order of redemption was perfectly valid. In any case, the order extinguishing his right was without authority and was a nullity."
' What the learned Judge deciding the case of Allah Bakhsh omitted to note was that in Lala Ganga's case mortgage was recited in the Wajib-ul-arz prepared during a Settlement effected under Regulation VII of 1822 as amended by Regulation IX of 1833, and the Wajib-ul-arz was attested and verified by the agent of the mortgagees. It was the writing and the signature both which made the entry of the Wajib-ul-arz operative as acknowledgment and not one independently of the other.
9. In the case of M.C.Kadir and Company referred to in the case of Allah Bakhsh, a writing duly signed was available and the question was of its interpretation and effect, and the principles laid down were as hereunder:-- "Next, some rules have to be observed in construing a document which is set up as an acknowledgment of liability. One principle is, that the Limitation Act being a statute in derogation of the right to sue, exceptions in the Act must be construed liberally. A writing claimed to be an acknowledgment must, therefore, be interpreted liberally, so as to maintain the right to sue rather than in negation of derogation of such right ...... ............ The question then is, what is the reasonable test to determine whether a writing constitutes sufficient acknowledgment under section 19 of the Limitation Act. Taking into consideration the rule laid down by the Judicial Committee in Maniram Seth v. Seth Rupchand and in several other decisions reviewed above, according to which an admission of liability need not be expressed but may be inferred by implication from the language of the writing and the surrounding circumstances, we should think that the test is:--
(i) Whether there is admission of liability or of jural relationship;
(ii) Whether this admission is relatable to a subsisting liability or jural relationship, so that in the latter case, on ascertainment of facts constituting the jural relationship, as in the case of accounts between the parties, a debt or liability shall be found to exist against one or the other of the parties.
' This admission may be evident from the language of the writing itself, or may be inferred by implication, or by ascertainment from the surrounding circumstances if there be any ambiguity in the writing."
10. In case of Zarif Khan and others v. Muhammad and others PLD 1983 Pesh. 58 acknowledgment on the basis of the entries in the mutation register was directly brought under consideration and dealt with as hereunder:--- "In the case in hand, in order to prove acknowledgment giving fresh start to the period of limitation, it is incumbent upon the mortgagors to prove the same within the four corners of the law relied upon. On going through the record of the case and the evidence produced by the parties acknowledgment as a question of fact was never specifically raised nor proved in the trial Court.
The important ingredient for attracting the provisions of section 19 of the Limitation Act that the same must be in 9 writing and signed by the person making it is totally missing. All the sub- mortgages were created from time to time through mutation referred to above which are not required to be signed or thumb-impressed by the parties to the transaction. Mutations are the effect of the oral transaction entered into between the parties and reported to the relevant authority. Keeping in view that the above-mentioned mandatory element of acknowledgment is missing in the present case, I have no hesitation in holding that the defendants appellants have utterly failed to prove a valid acknowledgment of the original mortgage giving fresh start of limitation under section 19 of the Act. The creation of sub-mortgage unless in writing and signed by the mortgagors (original mortgagees) and proved in Court of law as a fact does not amount to acknowledgment within the meaning of section 19 of the. Limitation Act."
' This, according to us, lays down the correct law on the question of acknowledgment and not the decision in the case of Allah Bakhsh.
11. The learned counsel for the respondents attempted to avoid the claim of the plaintiffs in its entirety by contending that it was not usufructuary mortgage but only a sort of tenancy which was brought about and notwithstanding the original mortgage being time barred, tenancy would continue. This has not been the question on which the suit or the defence has proceeded. We would not like to introduce a new dimension to the suit at this stage.
12. The other contention of the learned counsel for the respondents is that section 8 of Act XXXII of 1950 had by deferring the restitution to the expiry of 15 years to the sub-mortgage had necessarily extended the period for redemption of the mortgage itself by the number of years short of 15. This argument is erroneous because as between the owner mortgagor and the sub-mortgagee, there was no privity of contract and acknowledgment such as may have the effect of extending the redemption period. What happened between the mortgagee and sub-mortgagees and the effect of restitution without payment, has nothing to do with the right of redemption on payment of whatever is due. Even on this reasoning by Act XIX of 1964, the Act XXXII of 1950 was repealed and substituted by another Act which permitted both redemption and restitution. The 15 years period claimed by the respondents also expired before the enforcement of Act XIX of 1964.
13. The learned counsel for the appellants could not point out how the redemption already ordered of a part of the land not affected by section 8 of Act XXXII of 1950 could be avoided by them in seeking the declaration and the relief that they sought in the suit.
14. In the circumstances, we accept this appeal, set aside the judgment of the High Court and restore that of the trial Court as upheld in first appeal. No order is made as to cost's.'