' This Civil Revision and C.R.No,160/1990 are being disposed of by this single judgment, for, in both of them the following common proposition has been raised:- ' Whether rights of evacuee mortgagors in lands which had vested in the Custodian of Evacuee Property by virtue of section 5 of Pakistan (Administration of Evacuee Property) Act (XII of 1957) stand extinguished by lapse of time under section 28 of the Limitation Act, (IX of 1908)?
2. Civil Revision No 400 of 1984 has arisen out of a suit instituted by the petitioners against the respondents for a declaration that land measuring 33 kanals and 10 marlas fully described in the heading of the plaint and situate in village Mitha Khel, Tehsil and District, Karak, had been mortgaged with them for over sixty years and having not been redeemed so far they had matured their title thereto by prescription and that thus rights of the original owners and mortgagees had extinguished.
3. It is alleged in the plaint that predecessor-in-interest of defendants Nos.1 to 5 had mortgaged the suit land to the predecessor-in-interest of the plaintiffs-petitioners and defendants Nos.6 to 17 prior to the year 1902-04 which mortgage was still subsisting. It is further averred that having not been redeemed for sixty years, the proprietary rights of defendants Nos.1 to 5 stand extinguished and in consequence the plaintiffs-petitioners and defendants Nos.6 to 17 have acquired title to the land by prescription. The suit was resisted by defendants-respondents Nos.1 to 5, who denied the very mortgage transaction of the suit land in favour of the predecessor-in-interest of the petitioners and also maintained that they were not at all in possession of the suit land. On the basis of above controversy, the trial Court framed the following issues:-
(1) Whether the plaintiffs and defendants 6 to 17 have become owners by prescription of the suit land?
(2) Whether the plaintiffs are estopped to bring the present suit?
(3) Whether the suit is within time?
(4) Whether the plaintiffs have a cause of action?
(5) Whether the suit is bad in its present form?
(6) Relief.
' On issue No,1 which was crucial one, the trial Court concluded that the plaintiffs-petitioners have failed to substantiate their plea of continuous possession for over sixty years. Issue No,2 was not pressed before it. Issue No,3 which covered the bar of limitation raised by the answering defendants-respondents was found against the defendants-respondents the plaintiffs-petitioners were held to have got no cause of action and thus issue No,4 was decided against them. On issue No,5 the learned trial Court reached the conclusion that since in declaratory suit consequential relief which the plaintiffs-petitioners have omitted to claim, the suit was not maintainable in its mere declaratory form. As a result of these findings the suit was dismissed.
4. Against the judgment and decree of the trial Judge, appeal was taken to the learned District Judge who held that the plaintiffs-petitioners having failed to submit before 31st December, 1963 applications for creation/satisfaction of charges under the provisions of the Satisfaction of Charges (Land Settlement) Rules, 1962 their names stood deleted as mortgagors from the Revenue Record in pursuance of Circular Letter No,5062-64/4753-R(L) dated the November, 1965 issued by the Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore. The operative part of the appellate judgment and decree being significant is reproduced hereunder:- "The record shows that no such claim was preferred by the appellants. They did not bring it to the notice of Govt. That they were mortgagees of the suit land for a period of more than 60 years. The result was that the suit land was allotted in the name of refugees after 1965 and subsequently the allottees alienated it in the name of respondents Nos.1 to 5. After 31st December, 1963 the rights of the mortgagees extinguished and the suit land vested wholly and absolutely in the Central Govt.
Free from all encumbrances. So the appellants are not entitled to the declaration prayed for."
5. The plaintiffs-petitioners, feeling still dissatisfied, have come up in revision to this Court.
6. Petitioner in C.R.No,160 of 1990 is a local mortgagee with possession of land measuring 28 kanals and 3 marlas fully described in the heading of the plaint, which was initially owned by Mawaz Khan, Fazal and Asal Din. It was mortgaged by mutation No,766 attested on 7-8-1908 to Mian Din.
Additional mortgage charge was created by subsequent two transactions evidenced by Mutations Nos.2603 and 4241 dated 3-3-1914 and 7-8-1918 respectively. On the basis of Mutation No,5205 dated 15-12-1920, they sold their equity of redemption to Payara Lal and Joodha Ram non-Muslim evacuees. By virtue of Mutation No,5362 Pak Takmeeli' was made and while by Mutation No,5363 both were attested on 29-1-1921 still another additional charge was created. Mian Din mortgagee, in the meantime, died and was succeeded by his three sons Hakim Khan, Mahabbat Khan and Ashraf Khan. It appears that the rights of mortgagors being evacuee were transferred to Mst.Sameeri who in turn sold them to Zarin Shah, Gul Ahmad Shah, Gul Sahib Shah, Niaz Badshah and Nadir Shah, by a registered sale-deed dated 15-9-1963 which found its way in the Revenue Record on the strength of Mutation No,17863 dated 18-3-1966. On 15-5-1980 Ashraf Khan instituted this suit against Gul Shayat Khan and others pro forma defendants Nos.1 to 9 and Zarin Shah etc. Defendants-mortgagors Nos.11 to 15 for a declaration that mortgagors' title to the suit land to the extent of the petitioner's share had completely extinguished on account of their failure to redeem it within sixty years since 7-6-1908 and that the entries of the Settlement Record of 1974-75 recording defendants-mortgagors Nos.5 to 15 and omitting his name as mortgagee was void and ineffective against his rights.
7. This suit was contested by defendants Nos.11 to 15 and on the pleadings of the parties as many as 8 issues including relief were settled. It is with regret to observe that these issues are not happily worded. Nonetheless issue No,7 "whether the plaintiff is entitled to the decree as prayed for", covers the real controversy which has been reproduced in the opening paragraph of this judgment.
8. The learned trial Judge held on issue No,7 that by virtue of Circular Letter No,5062-64/4753(RL) dated 5-11-1965 mortgagees of evacuee lands were entitled to the refund of mortgage charge under the Satisfaction of Charges (Land Settlement) Rules, 1962 till 31-12-1963; that the petitioner having failed to avail of the said concession his mortgagee rights stood extinguished and; that in any case even, the prescribed period of sixty years had not yet been completed when computed from 29-1-1921 when the non-redemption. In view of these findings the petitioner was non-suited on 27-5-1984. On appeal the learned District Judge affirmed the findings of the trial Court and dismissed the appeal on 17-4-1989. Being aggrieved by the judgments and decrees passed by the two Courts below, the petitioner has come up in revision.
9. Haji M.Zahir Shah, learned counsel for the petitioners in both the revision petitions relied on: (1)
Samar Gul v. Central Government and others (PLD 1986 SC 35) and (2) Allah Diwayah and others v.
Ghulam Mustafa and others (1990 CLC 1990) to contend that in 1963 the rights in lands in dispute having been transferred to the claimants it no more remained an evacuee land in 1965 when the Circular Letter No,5062-64/4753(RL) dated 5-11-1965 was issued under the Satisfaction of Charges (Land Settlement) Rules, 1962 and, therefore, the rights of the petitioner remained unaffected.
10. Mr. Abdul Hakim Kundi, learned counsel for the answering respondents, in both the petitions invoked the provisions of the Satisfaction of Charges (Land Settlement) Rules, 1962 and referred to:
(1) Muhammad Hussain and others v. Custodian Evacuee Property (J&K) and 13 others (1980 CLC 593), (2) Abdur Rahim etc. v. Province of West Pakistan and others (PLD 1982 Peshawar 74) and (3)
Sayed Ata Hussain Shah and others v. Lal Din and others (1986 MLD 433) and argued that the petitioners in both the cases were entitled to nothing more than the mortgage charge and the question of extinguishment of mortgagors' rights by prescription under section 28 read with Article 148 of the Limitation Act, 1908 did not arise.
11. The ratio in the case of Samar Gul, cited by the petitioners' counsel was that redemption of mortgage created in 1916 by a Muslim owner in favour of a Hindu mortgagee was not barred by limitation both under sections 19, 28 and Article 148 of the Limitation Act, 1908, in that, the Government by a notification acknowledged the rights of the mortgagor particularly when entry in the Revenue Record also showed mortgagor as owner/mortgagor and Central Government as mortgagee in 1969. Obviously this authority is of no help to the petitioners, for, they are the mortgagees of the rights of the mortgagors whose lands became "evacuee property" under clause
(2) of section 2 of the Pakistan (Administration of Evacuee Property) Ordinance,1949 (XV of 1949) with effect from the first day of March, 1947. Likewise Allah Diwayah's case has no relevance, in that, it was also a case of evacuee mortgagees and not of evacuee mortgagors which has been raised in these petitions. In consequence the equity of redemption in these petitions had become "evacuee property" since the first day of March, 1947 and had vested in the Custodian of Evacuee Property from that day under section 6 of the Ordinance corresponding to section 7 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957). The effect of these and other provisions of the Act aforesaid is that any one holding the evacuee property or being in possession thereof with effect from 1-3-1947 was to be deemed to be doing so on behalf of the Custodian of Evacuee Property. In this context I am re-inforced by two pronouncements of the Lahore High Court: (1)
Ramzan v. Chief Settlement and Rehabilitation Commissioner and others (PLD 1968 Lahore 258) and (2) Suleman and 3 others v. Custodian, Evacuee Propery, West Pakistan, Lahore and 2 others (PLD 1971 Lahore 77). In the first precedent case of Ramzan, the argument that the possession as mortgagee of the land cannot be disturbed until the mortgage is fully redeemed notwithstanding the transfer in favour of a transferee was repelled by Muhammad Gul, J., as his Lordship then was, in the following words:- "But the argument completely overlooks the subsequent amendment brought about in the relevant law by the insertion of section 14-A(1) of the Displaced Persons (Land Settlement)(Second Amendment) Ordinance, 1962 (Ordinance LXIV of 1962) which was further amended by the Displaced Persons (Laws Amendment) Ordinance, 1964 (Ordinance XIII of 1964), which inter alia, omitted provisos (a) and (b) to subsection and substituted them by a new proviso. The second Ordinance came into force on the 28th December, 1964, after the two precedent cases relied upon by learned counsel for the petitioner. Therefore, they are rendered obsolete by the latest amendment in the law in so far as they operate to preserve the possession of non-evacuee mortgagees as against the claimant displaced person to whom such lands stand transferred.
Section 14-A as finally amended for the material purposes reads:- Allotment of certain lands under mortgage, etc.--(1) Notwithstanding anything contained in any law for the time being in force or in any judgment of any Court, where a person has been allotted, under any scheme prepared under section 14 any land which was at any time before the commencement of this Act subject to a mortgage created by an evacuee, the allotment shall be deemed to be valid: ' Provided that the mortgage-money due to the mortgagee shall be a charge on such land."
' The effect of section 14-A with the proviso thereto was taken to be that it effaced the petitioner's mortgagee rights in land and in their stead created a mere charge on the land to the extent of the mortgage sum. It was further held in the same context that a mere charge does not create any right in the property but creates a right of payment out of the property.
12. Again in Suleman's case cited above, Anwarul Haq, J. As his Lordship then was, had answered almost the same proposition in the following paragraph:- "It will be seen that the obvious intention of this sweeping provision (section 4 of the Ordinance XV of 1949) corresponding to section 5 of Act XII of 1957 is that once the property has vested in the Custodian of Evacuee Property then it shall not be taken away from him or his control by the operation of any other law for the time being in force. And this would include section 28 of the Limitation Act as well which contemplates extinguishment of the right to redeem property at the determination of the period of limitation. Any other position would have been simply impossible, as the Custodian of Evacuee Property could not be expected to acquire knowledge of time in the various legal obligations which the non-Muslim evacuee owners numbering several millions had already incurred or were liable to incur with the passage of time. The Legislature, therefore, in its wisdom, chose to freeze the respective rights of the parties as they existed on a certain specified day, namely, the first day of March, 1947. On this view of the matter it follows that time ceased to run against the Custodian from the Ist of March, 1947 and, therefore, the question of limitation has to be decided in such cases with reference to this date and not to any subsequent date on which action may in fact be initiated by the Custodian/Rehabilitation authorities. On the Ist of March, 1947 the right to redeem was clearly in subsistence in the instant case."
13. For the foregoing reasons, it is clear that the transactions of mortgage which came into existence between non-Muslim owners and the predecessors-in interest of the petitioners were mortgages which could be redeemed at any him within the period of limitation which was to expire in 1962-64 in one case and o 14-12-1980 in the other case, but before these dates the right of redemption became evacuee with effect from the Ist of March, 1947. As a necessary consequence, the period of limitation ceased to run against Custodian in view c the several provisions contained in the legislations relating to administration evacuee property. With the addition of section 14-A to the Displaced Person (Land Settlement) Act, 1958, the mortgage-money due to the mortgagees of the evacuee lands would be deemed to be a charge created by section 4(4) thereof The petitions, therefore, have no substance and are hereby dismissed. In view the legal questions involved, the parties are left to bear their own costs.