' This judgment will dispose of two connected RSAs. Nos,400/1968 and 626/1968 and Civil Miscellaneous. Applications Nos,4453-C/1990 and 4454C/1990 as they involve common questions of law and facts and relate to the same subject-matter.
2. Briefly stated, fact of the case out of which these two appeals have arisen are that predecessor- in-interest of defendants Nos,1 to 55 which include the appellants mortgaged land in favour of the predecessor-in-interest of Sh. Muhammad Abdullah plaintiff who is respondent No,1 in this appeal and the defendants Nos, 56 to 72. All the mortgagees were Hindus. On independence, they migrated to India. However one of them namely Nathu Ram embraced Islam and his Islamic name is Abdullah and he is plaintiff-respondent No,1.
3. Sh. Abdullah respondent No,1 filed suit seeking a declaration of title in the whole of the suit land on the ground that he and defendants Nos,56 to 72 have become owners of the suit land due to the expiry of period of more than 60 years and therefore, he as well as the defendants Nos, 56 to 72 have become owners of the land in question and as he is the sole heir of the evacuees he may be given the "lease" regarding total land. This suit has been contested and on the basis of the pleadings of the parties, following issues were framed:--
(1) Has the plaintiff any cause of action to bring this suit?
(2) Is the plaintiff the successor-in-interest of the original mortgagees?
(3) Has the plaintiff acquired full title in the property in dispute by virtue of his possession on the mortgaged land for more than sixty years?
(4) Relief.
4. Learned Senior Civil Judge, Lyallpur (presently Faisalabad) vide judgment and decree dated 9- 11-1966 decreed the suit filed by respondent No,1 to the extent of 15/1536 shares in the suit land and dismissed the suit in relation to the remaining land. Two appeals were filed against the said judgment and decree in the District Court, Lyallpur (presently Faisalabad), one by Sh. Abdullah plaintiff mortgagee and the other by Sher Khan one of the defendants who is the appellant in this regular second appeal. Learned District Judge vide judgment and decree dated 17-1-1968 dismissed both the appeals on the ground that there is no documentary evidence on the record to show that the mortgagees had acknowledged the factum of mortgage within a -period of 60 years and therefore the requisite period having already expired, the mortgagees has acquired ownership rights in the land in question and further that Sh. Abdullah respondent No,1 is not entitled to more than his share in the land in question. Which has already been given to him by virtue of the decree passed in his favour. This judgment and decree passed by the learned District Judge has been appealed against by Sher Khan the defendant appellant. Sher Khan has died during the pendency of this appeal and his three sons have been impleaded as his legal representative.
Similarly legal heirs of some of the respondents who have died during the pendency of the appeal have also been impleaded. Facts giving rise to R.SA. No, 626/68 are that predecessor-ininterest of defendants Nos,1 to 22 including the appellants mortgaged the suit land in favour of the predecessor-in-interest of Sh. Abdullah (old name Nathu Ram) son of Lachhman Das, respondent No,1 this appeal and defendants Nos, 23 to 48. All the mortgagees were Hindus. On independence day, they migrated to India. However one of them namely Nathu Ram embraced Islam and his Islamic name is Abdullah. He is the plaintiff in this case. Sh. Abdullah filed suit for declaration to the effect that he and the defendants Nos,23 to 48 had become owners of the suit land because the period for redemption of the mortgage in question has since expired. The plaintiff claimed a decree for declaration of a title with regard to the whole of the land in dispute. This suit has been contested and the learned trial Court settled the following issues:--
(1) Whether the mortgage of the land in dispute in favour of the plaintiff and defendants Nos,23 to 48 has become time-barred for being more than 60 years old?
2. Relief.
5. The learned Senior Civil Judge, Lyallpur (presently Faisalabad) vide judgment and decree dated 9-11-1966 passed a decree in favour of respondent No,1 to the extent of 1/48 shares in the suit land and dismissed the suit regarding rest of the land. The learned trial Court held that there is no proof of acknowledgement of the mortgage by mortgagees, therefore period of limitation shall start w,e,f, the year 1872 on which date the mortgage was originally created. This judgment and decree was challenged by way of two appeals, one filed by Sh. Abdullah respondent and the other by defendants No,1 to 22 including the present appellants, who are the mortgagoRs, Both the appeals were dismissed by the learned Additional, District Judge, Lyallpur vide judgment and decree dated 17-1-1968 on the basis of the same reasoning which found favour with the learned trial Court as well as with the learned Additional, District Judge in the other connected suit out of which RSA No,400/68 has arisen. The judgments and decrees passed by the two learned. Courts below rendered in both the suits have been challenged by the defendants mortgagors through the two RSAs referred to above. During the pendency of the appeals, some of the parties have since died and their legal representatives have been impleaded as parties to the appeal. Another development which took place during the pendency of both the appeals is that some of the purchasers of the land in question from the allottees to whom the mortgaged land having been treated as evacuee property has been allotted by the Settlement Department, applied for being impleaded as parties to both the appeals by filing C.M. No, 4453-C/1990 in R.SA. No, 400/68 and C.M.No, 4454-C/1990 in RSA No, 626/1968. Both these applications are also being disposed of by this order.
6. Mr. Muhammad Iqbal Sargana, Advocate learned counsel appearing for the appellants in both the appeals has argued that both the learned Courts below have misread the evidence and have failed to take into consideration material pieces of evidence which prove that the mortgagees had acknowledged the mortgage within the meaning of section 19 of the Limitation Act and period of 60 years hence has not expired as yet hence the suit filed by Sh. Abdullah could not have been decreed nor could it had been held that the mortgagees have acquired an ownership rights of the land in question by expiry of a period of 60 years w,e,f, the date of original mortgage. Elaborating his arguments, learned counsel has referred to documents Exh.P.1 which is an excerpt which proves that right up to the year 1956-57, there are entries of " i,e, "mortgage created by the mortgagees" which according to the learned counsel constitute acknowledgement within the meaning of section 19 of the Limitation Act for the purposes of starting of a fresh period of limitation. He has further referred to Exh.D.1 which is a copy of the registered deed of {{ URDU TEXT}} executed in the year 1930 by Ram s/o Mehr Chand mortgagee. Similarly learned counsel pointed out that mutations Exh.D.2 and D.5 which are also mutations of {{ URDU TEXT}} and have been got sanctioned by Charan Das and Nath000 Das mortgagees do constitute an acknowledgement within the meaning of section 19. Learned counsel has further pointed out that in the suit out of which RSA No, 626/1968 has arisen, documents Exhs.D.1 to D. 17 constitute an acknowledgement in terms of section 19. Learned counsel points out that documents Exhs. D.1 to D. 4 are copies of the registered mortgage deeds duly executed and signed by the mortgagees wherein original mortgage has been acknowledged and documents Exhs.D.7 to D.17 are mutations of {{ URDU TEXT}} which also constitute an acknowledgement within the meaning of section 19. Learned counsel has also placed reliance on documents Exh.P.2 which is a copy of the Jamabandi for the year 1960-61 produced by the plaintiff himself to contend that this Jamabandi contains an entry to the effect that the status of the appellant defendants is that of mortgagor and therefore according to the learned counsel even this entry will constitute an acknowledgement of the original mortgage.
Learned counsel has relied upon the cases of Samar Gul v. Central Government and others (PLD 1986 SC 35) Government of West Pakistan v. Syed Zainul Ebad Rizvi (PLD 1977 Karachi 297) and Ralla Ram v. Bhana Mal and others (AIR 1933 Lah. 33). Learned counsel contends that in view of the above factual and legal position, judgment and decrees passed by the two learned Courts below are illegal and are liable to be set aside. As against the above arguments, Mr., Almas All Sheikh, Advocate for the respondents has appeared and has frankly conceded that the documentary evidence which consists of registered mortgage deeds and the mutations as well as the Jamabandi do constitute an acknowledgement within the meaning of section 19 of the Limitation Act and calculating with effect from the dates of acknowledgement period of sixty years has not passed as yet.
7. Malik Saeed Hassan, Advocate learned counsel for the applicants in C.M.No, 4453-C/90 and 4454-C/90 has argued that the suit property having been treated as evacuee property and the appellants having not sought declaration of title from the Custodian before the target date, have no locus standi to file these appeals. According to the learned counsel it is the applicants who are entitled to retain the land in question as they are bona fide purchasers for value from the lawful allottees of the suit land. Learned counsel contends that the documents referred to by the learned counsel does not constitute acknowledgement within the meaning of section 19 of the Limitation Act. Reliance is placed on the case of Allah Diwaya and others v. Mst. Sughran Begum and others (1992 CLC 1416) and Said Akbar Khan and others v. All Muhammad (1992 CLC 1195). Controverting the arguments addressed by Malik Saeed Hassan, learned counsel for the applicant, Mr. Muhammad Iqbal Sargana learned counsel for the appellants has contended that the applicants have no locus standi to be impleaded as parties to the appeals inasmuch as they claim their title through purchase of land pendente lite and further that non evacuee interest could not have been allotted nor it was ever treated as evacuee and therefore the arguments of the learned counsel for the applicants is misconceived. It is further contended and replied that the documents referred to above do constitute an acknowledgement within the meaning of section 19 of the Limitation Act.
8. I have considered the arguments addressed by the learned counsel for the parties and have gone through the evidence produced in the case. The judgment reported as Samar Gul v. Central Government and others (PLD 1986 SC 35) is applicable on all fours to the facts and circumstances of this case. The documents referred to by the learned counsel for the appellant do constitute acknowledgement for the purposes of fresh start of period of limitation for the purpose of redemption of the mortgage. Judgment cited by the learned counsel for the applicants reported as Allah Diwaya and others v. Mst. Sughran Begum and others (1992 CLC 1416) also supports the contention of the learned counsel for the appellants whereas judgment reported as Said Akbar Khan and others v. Ali Muhammad (1992 CLC 1195) is distinguishable on facts and hence is not applicable to the case. Arguments to the effect that by acknowledgement, the period of limitation shall stand extended also finds support from the case of Mst. Zarmewa and 8 others v. Khial Bat Khan and 53 others (1992 SCMR 1804) wherein it has been held as under:- "Next point raised by the learned counsel for the respondent has been answered while dealing with already visualized the other three questions. However, it is further commented that it is not correct to assume that in all cases of the period of 60 years having matured the mortgagees would automatically become owneRs, Besides this being an unequitable and unjust approach to the entire controversy to say the least, the owner in this line of arguments is not even conceded a right of hearing. Therefore, on the one hand it would be just and proper that some certification of maturity of title is obtained by the mortgagees, it is also necessary to visaulise that many cases which the mortgagors themselves filed, would succeed. In this behalf learned counsel for the respondents cited more than couple of instances in which notwithstanding maturity of time and so-called assumptive title the mortgagor would definitely succeed in getting back the property by formal redemption on basis of acknowledgement or on other technical grounds. One obvious is the example of ex parte decree not being set aside till the end on account of some serious folly of the defendant/mortgagee."
' Argument of the learned counsel for the applicants that since the property has been allotted as having been treated as evacuee property, the appellants cannot be granted any relief is also misconceived. Equity of redemption being non-evacuee could not have been treated as evacuee property and no declaration was necessary to be obtained from the Custodian for the declaration of such a non-evacuee interest. Reliance can be placed upon the case of Muhammad Khan and others v. (1) The Chief Settlement and Rehabilitation Commissioner, West Pakistan and (2) Shamsul Haq Khan (PLD 1962 Supreme Court 284).
9. In view of the above, I hold that the plaintiffs respondents and the mortgagees have not acquired rights of ownership in the land in question inasmuch as the requisite period of 60 years has not expired as yet applying the principle of acknowledgement as contained under section 19 of the Limitation Act. Resultantly the judgments and decrees passed by the two Courts below are illegal and hence are not sustainable. Hence both the appeals are accepted, impugned judgments and decrees passed by the two learned Courts below are set aside and the suits filed by the respondent are dismissed with costs throughout. C.M. Nos,4453-C/90 and 4454-C/90 filed by the applicants cannot be allowed being not maintainable in these proceedings inasmuch as the applicants claimed title pendente-lite and even otherwise cannot be considered as necessary or proper parties. They never applied for being impleaded as parties at any earlier stage and hence for the first time cannot be impleaded at the stage of second appeal. Their point of view however has been heard. Hence the C.Ms. Are dismissed but they shall be at liberty to file independent proceedings which are competent under the law for establishing their rights, if any, and if so advised.