' SAAD SAOOD JAN, J.---This is an appeal by special leave from the judgment, dated 12-9-1981 of the Peshawar High Court. It arises in the following circumstances.
2. The dispute between the parties relates to house No,166/7, situate in village Bahzadi Chakkarkot of Tehsil Kohat. By a registered deed dated 26-7-1954, one Munawar Khan mortgaged it with one Mahmood. After the death of Munawar Khan, his widow, Mst. Zohra Bibi, laid claim to the ownership of the house under a will made in her favour by him. However, that may be, by a registered deed, dated 9-2-1962 Mahmood transferred his mortgagee rights to Yar Gul. On 10-2-1962 Mst. Zohra Bibi executed 20 mortgage deeds collectively for an amount of Rs,1,980 in favour of Yar Gul who by a registered deed, dated 11-5-1983 sold his rights to Jamal Khan, respondent No,3. By another registered deed dated 24-5-1968 Mst. Zohra Bibi sold her rights in the equity of redemption to the appellant.
3. On 14-10-1968 the appellant filed a suit for redemption of the mortgage against Jamal Khan. She also impleaded Ghaffar Khan brother of Jamal Khan, as defendant for the reason that he was in the physical possession of the house.
4. To begin with, the suit, was resisted only by Jamal Khan. He, inter alia, alleged that Mst. Zohra Bibi was not the sole owner of the house and that Anwar Khan, a brother of her husband, had a half share in the house in dispute. He further alleged that Anwar Khan had died and his share in the house was inherited by his son Akbar Khan and daughter Mst. Sakina. Lac claimed that he had obtained the share of Mst. Sakina in the house by way of exchange. On the prayer the trial Court impleaded Akbar Khan and Mst. Sakina as parties to the suit.
5. Initially the trial Court decreed the suit of the appellant to the extent of 1/4th share in the house.
However, on appeal by the appellant, the District Judge set aside the decree and remanded the suit for a fresh trial. After the remand, the trial Court recorded further evidence of the parties and after reappraising the same it came to the conclusion that Mst. Zohra Bibi was the sole owner of the house and that Akbar Khan and Mst. Sakina were not the heirs of Anwar Khan. It then passed a preliminary decree for the redemption of the mortgage on payment of Rs,5,000 to Jamal Khan.
From the judgment of the trial Court, Jamal Khan and Mst. Sakina preferred an appeal in the District Court. It was dismissed by the Additional District Judge, Kohat. They then preferred a second appeal in the High Court. It was partly accepted inasmuch as the preliminary decree was modified and redemption was allowed to the extent of 1/4th share in the house in dispute.
6. Leave to appeal was granted to consider whether, in view of the fact that the relationship of mortgagor and mortgagee between the appellant and Jamal Khan was established on record and that the possession of Jamal Khan was traceable to a mortgage, he was bound to surrender his possession to the mortgagor and if he could on the basis of a share subsequently acquired put up his claim as a co-sharer in answer to the appellant's claim to get the mortgage redeemed.
7. Before taking up the question raised in the leave granting order it may be mentioned that on 16- 1-1964, after the death of Munawar Khan, his brother, Anwar Khan, had filed a suit, inter alia, for possession through portition of 7/8th share in the house in dispute. Jamal Khan who was one of the parties to, the suit, took up the plea that Anwar Khan had no share in the hour and that it exclusively belonging to Mst. Zohra Bibi. During the pendency of the suit Anwar Khan died. As his legal representatives were not brought on the record, the suit abated.
8. After going through the record we find that it was a simple suit for redemption of a mortgage.
Jamal Khan had admittedly entered into possession of the house as mortgagee. The share that he claimed in the house was acquired by him during the pendency of the suit. There can be little doubt that he did so in order to prolong the proceedings by widening the scope of controversy between the parties. The position adopted by him in the suit was inconsistent with the stand he had taken in the suit filed by Anwar Khan. Even if Mst. Zohra Bibi was not the sole owner of the house, she and the transferee from her had the right to seek redemption of the mortgage as both were persons who had interest in the mortgaged house within the meaning of section 91, Transfer of Property Act. Any other person claiming a share in the house could enforce his claim under section 92 of the Act. In this case the evidence on record was entirely insufficient to record a finding that Mst. Zohra Bibi was not the sole owner of the house or that Akbar Khan and Mst. Sakina were also sharers therein as heirs of Anwar Khan. These matters should have been left to independent proceedings where their claims in this regard as well as the effect of the abatement of the suit filed by Anwar Khan could be inquired into at length. We are, therefore, of the opinion that the High Court proceeded, erroneously to interfere with the judgments of the Courts below. We would accordingly accept this appeal, set aside the judgment of the High Court and restore the preliminary decree passed by the trial Court. There will be no order as to costs.