1. ' The question for decision in the civil revision petition is whether equity of redemption in resect of mortgage of land made on 21-9-1924 was extinguished upon expiry of time prescribed for redemption in Article 148 of Limitation Act, 1908 and ownership rights transferred to the erstwihle mortgagees by operation of law.
2. ' First, the undisputed facts: One Majeed son of Jiya was occupancy tenant of the land measuring 32 kanals, 5 marlas comprised in previous field No,916 present 1514 at Mauza Dakhner of Tehsil and District Attock. He orally mortgaged his occupancy rights in the above land to Jaffar Shah son of Mehdi Shah for a mortgage-money of Rs,80. Mortgage was reported to the village Patwari on 20-9- 1924. He recorded the acquisition of mortgagee-rights in Rozenamcha and entered it in the register of mutations and after filling in relevant columns of the mutation, placed it before the Mutation Officer on 21-9-1924, who on the basis of affirming statements of contracting parties attested the mutation in favour of the mortgagee. Sanctioned mortgage Mutation No,796 is Ext.P-11. Original mortgagee died. His date of death is not available on present record. His successors, namely, Chan Badshah, Noor Bakshah, Jahan Shah, Gulab Shah sold their mortgagee rights in the land to Jaffar son of Mian Khan. Mutation No,501 regarding sale of mortgagee rights was entered with the village Patwari on 31-10-1938 and was finally sanctioned on 20-11-1938, by the Revenue Officer. It is marked Ext.P-10. With the enactment of Act VII of 1952, and, its enforcement, occupancy rights in the muslim owned-land were extinguished and converted into ownership rights in proportion to the rent payable therefor by the occupancy tenant. Mutations Nos. 69, 70 were sanctioned on 28-12-1980 for giving effect to extinction of occupancy rights and corresponding conferment of proprietary rights in Revenue Records. By Mutation No,69, 2/3rd share of the ownership rights in Khasra No,892 was mutated in the name of Mst. Afsar Jan, the successor-in-interest of the original mortgagor Majeed son of Jiya. It may be observed that on death of Majeed son of Jiya, his rights in the land were mutated to his widow Mst. Hazran on 30-6-1929. By inheritance Mutation No,1645 sanctioned on 21-9-1956, rights held by Mst. Hazran in khasra in dispute were mutated in the name of Mst.
3. Mohabbat Jan daughter of Majeed. Vide mutation 1774 sanctioned on 26-1-1958, inheritance of Mst.
4. Mohabbat Jan devolved upon her daughter Mst. Afsar Jan. Reference to Mutation No,69 conferring proprietary rights upon Mst. Afsar Jan to the extent of 2/3rd share has arleady been made above.
5. By deed of sale registered on 13-2-1986 (photo-copy filed at the hearing) Mst. Afsar Jan sold 21 kanals, 10 marlas of land, 2/3rd share of Khasra in dispute, in favour of her son Amanat Khan for a consideration of Rs,8,000. Amanat Khan is respondent No,1 in the civil revision, whereas Mst. Afsar Jan is respondent No,2. Successors of Jaffar son of Mian Khan, namely, his sons Sher Muhammad and Akram as plaintiffs alongwith defendants Nos.1 and 2 in the suit filed by them claimed that they held the land as its owneRs, It was stated that the period prescribed for redemption of the mortgage having expired, the plaintiffs alongwith defendants 1 and 2 had acquired full ownership rights in the land, mortgage rights of which they had already purchased on 20-11-1938. Defendants filed their written defence and controverted the plea of acquisition of ownership rights in the land by the plaintiffs.
6. ' Suit was tried on following issues settled by the trial Court on 3-6-1986:--
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the plaintiffs have no cause of action against defendants Nos.4 to 15?
(3) Whether the suit is bad for non joinder of necessary parties?
(4) Whether the plaintiffs are estopped by their acts and conduct to file the suit?
(5) Whether the plaintiffs and defendants Nos.1 and 2 have become the owners of the suit land by virtue of expiring of period of redemption?
(6) Whether the defendants Nos.1, 2 and 16 are entitled to get special costs, if so to what extent?
(7) Relief.
7. ' In support of the issues, parties gave evidence which consisted of oral statements and copies of Revenue Records. Oral evidence is not much but the other kind was substantial. Upon its review, the trial Court decreed the suit to the plaintiffs on 29-9-1987. Judgment of the trial Court mostly proceeded on its decision recorded under issue No,5 whereunder it was found that since statutory period fixed in Article 148 of the First Schedule of Limitation Act, 1908 for redeeming the mortgage had run out at the time of filing of the suit, the equity of redemption had extinguished by operation of law and the ownership rights transferred to the erstwhile mortgagees of the land in dispute.
8. Against this judgment and decree of the trial Court, an appeal (Civil Appeal No,233 of 1987) was filed in the District Court at Attock. It was heard by a learned Additional District Judge in the District who relying upon Muhammad Rafi and another v. Kripa Ramji and another AIR 1933 All. 99, Sohanra versus Fiaz and and others PLD 1984 Journals 162, Allah Bakhsh v. Member, Board of Revenue, etc. 1988 M LD 922 found that the sale of mortgagee rights by Mutation No,501 sanctioned on 20-11-1938 constituted an acknowledgement of liability in terms of section 19 of the Limitation Act, 1908 and gave rise to a fresh period of limitation of sixty years and thus held that the equity of redemption was still subsisting and had not extinguished by operation of law. Proceeding upon the above legal premises, learned Judge accepted the appeal, set aside the judgment and decree of the trial Court and dismissed the plaintiffs' suit with costs on 3-3-1988. Against his judgment, plaintiffs came up in revision to this Court to contend against his reasoning and conclusions by relying upon Maksud Ali and others v. Salar Bakhsh and others 63 Punjab Record 1888, Jawala Singh and others v. Sher Singh 116 Punjab Record 1891.
9. ' On behalf of the petitioners, it is forcefully contended by Malik Muhammad Jaffar, Advocate their learned counsel that mutation unless signed in writing by the party or his authorised agent did not constitute acknowledgement of liability to save period of limitation in terms of section 19 of the Limitation Act, 1908. It is argued that plain reading of section 19 would clearly indicate that an essential requirement of a valid acknowledgement is that the ackonwledgement must be made in writing signed by the party against whom any particular right is claimed or by his agent duly authorised in this behalf and an oral acknowledgement of liability is beyond the scope of section 19.. Apart from the two rulings relied upon in the admission order and referred to above, I was invited to an unreported judgment of the Supreme Court in case of Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others in Civil Appeal No,551 of 1988 decided on 11-3-1991 which upon review of the cases relied upon in the impugned judgment of the learned Judge below finally clinched the issue by laying down that in absence of writing signed by the party or his authorised agent, mutation of names per se did not constitute acknowledgement of liability to extend the period of limitation equivalent to the period initially prescribed. Had this been the only point in the case, the matter would have surely ended in favour of .The petitioners because in view of a clear binding authority of the Supreme Court, the view expressed in the impugned judgment could not be upheld and in that eventuality judgment and decree of the trial Court were to prevail. However, upon careful and critical review of the original records, it appears that an important aspect of the case having material bearing on its decision seems to have eluded the consideration of the learned Courts below which in my opinion may cause miscarriage of justice in loss of valuable property by its true owners on a bar of limitation. As said above, Majeed son of Jiya mortgaged his occupancy tenancy to Jaffar Shah son of Mehdi Shah through mutation Ext.P-11. In Kaifiyat column of Ext.P-11 (column No,15 of the mutation) Majeed reported that he had mortgaged the land and the period of the mortgage was eight yeaRs, Report is in vernacular and is dated 20-9-1924. Order passed by the Revenue Officer on the mutation did not contain a reference to the period fixed for redemption. Column No,13 of the mutation relating to sale of mortgagee-rights Ext.P-10 contained a reference to the sale of mortgagee rights by a receipt dated 11-10-1938. Similarly, the attestation order by the Revenue Officer on Ext. P-10 referred to the sale of mortgagee rights by a writing dated 11-10-1938 {{URDU TEXT}}. Neither the copy of Rozenamcha showing contents of the report by Majeed to the Patwari nor the writing dated 11-10-1938 referred to in Ext.P-10 were on record.
10. Ordinarily, the writing dated 11-10-1938 is expected to be in possession of the purchaser of the mortgagee rights or his successoRs, Parties' pleadings were silent on period of the initial mortgage as also the writing dated 11-10-1938 by which the mortgagee rights were. Purchased by Jaffar son of Mian Khan from Chan Badshsh etc. Both the events i.e, the period of mortgage and the purchase of mortgagee rights in writing were pregnant with meaningful legal consequences. Relevant provisions which would govern the decision are section 60 of the Transfer of Property Act and Article 148 of the Limitation Act, 1908. Section 60 of the Tranfer of Property Act provides that at any time after the principal money has become due, the mortgagor has a right on payment or tender of the mortgage-money, to require the mortgagee to re-convey the mortgaged property to him.
11. The right conferred by this section is described as the right of the mortgagor to redeem. Under this section, the right to A redeem can be exercised only after the mortgage-money became due and not before. Article 148 of the First Schedule of Limitation Act, 1908 prescribed sixty years for a suit against a mortgagee to redeem or recover possesion of the immovable property mortgaged.
12. Terminus a quo is when the right to redeem or to recover possession occured and not before. It was contended by Muhammad Munir Peracha learned counsel for respondent No,1 that where the mortgage is for a fixed period and its redemption postponed till then, the right of redemption can only arise on the expiration of specified period and not before. Therefore, if the initial mortgage was for fixed period of eight years as is indicated in column No,15 of Ext.P-11, the period prescribed for redemption had not yet expired. In the alternative, it was submitted by him that writing referred to in Ext.P-10 constituted clear acknowledgement of liability which gave fresh period of sixty years to the owners for redeeming their mortgaged land. To support him, learned counsel referred to Mst.
13. Bakhtawar Begum v. Husaini Khanum and another AIR 1914 Privy Council 36, Baldeo and others v.
14. Losai and another AIR 1929 Oudh 54, Akbar Hussain v. Shah Ahsanul Haq and another AIR 1932 Allahbad 155, Hai' Bakhsh Singh and others v. Mahabir Singh AIR 1936 Oudh 130, Khun Khun Chaube v. Mahbir Chaube and others AIR 1948 Allahabad 261, Ganga Dhar v. Shankar Lal and others AIR 1958 SC 770, Motilal v. Vasant and another AIR 1956 Hyderabad 172 Hari Singh Kaka Singh v. Harijan Cooperative Society of Chupki, Sub-Tehsil Samana, District Patiala AIR 1971 Punjab & Haryana 422, Smt. Gulkandi and others v. Harnarayan Phoolchand and others AIR 1980 MadhyA Pradesh 111, Habibullah v. Mahmood 1984 CLC 309 (SC AJ&K) and, Shambhu Dayal v. Smt. Tarawanti and others AIR 1985 Punjab & Haryana 21. From the cases relied upon by Mr. Peracha, deducible rule is that the period of redemption fixed in Article 148 of the Limitation Act can only be extended either by acknowledgement or by the terms of agreement between the parties. In opposition, Malik Muhammad Jaffar learned counsel for the petitioners relied on Bageshari Tcwari v. Nandoo Singh and others AIR 1937 Allahabad 32, Abdul Hanan and 8 others v. Kapoor Khan and 16 others 1970 S.C.M.R.
633. It was further contended by him that as neither the period of mortgage nor the question of acknowledgement were pleaded in the written statement nor any evidence led in their support, the Court is not competent to embark upon a fresh enquiry into them in exercise of its revisional jurisdiction. Since the sole point on which the learned Judge below proceeded to reverse the judgment of the learned trial Court for directing dismissal of the suit, in view of the binding ruling of the Supreme Court could not be upheld and as an important aspect of the dispute was left unattended to and not resolved because of defective and imperfect pleading which led to an unsatisfactory dispensation, in my judgment, case required re-trial on the lines indicated above. In this view of the matter, I would accept the revision petition,. Set aside impugned judgments and decrees of the learned Courts below and direct re-trial of the civil suit by learned Senior Civil Judge, Attock, after allowing an opportunity to the contesting defendants to amend their written statement for taking additional pleas covering the period of original mortgage and plea of acknowledgement based on writing dated 11-10-1938 referred to in Ext.P-10 with a further opportunity of leading evidence in support of the added pleas. Opposite party shall also be allowed an equal opportunity to meet with the amended defence and lead evidence in their support. There shall be no order as to costs in this Court.
15. ' Parties shall appear before the Court below on 24-4-1991. Records be sent to that Court.