1. ' 29 Kanals, 4 Marlas of agricultural land in Revenue Estate of Rao Bagh Mal of Tehsil Chiniot in District Jhang belonged to Qazi Ghulam Hussain. He mortgaged it with possession to Bahu for the mortgage money of Rs,2,500 through a deed registered on 22-2-1945. The mortgage was for a term of twenty years. On the basis of the registered mortgage-deed, Mutation No,328 was entered for implementing it, in Revenue Records. The mutation was finally attested by the Revenue Officer, on 13-12-1946. In course of mutation-proceedings, Bahu was called upon to furnish proof of his caste to discover, whether he was a member of notified agricultural tribe in the District. He failed to give any proof of his ownership of the land or ordinary residence in the District and agreed before the Revenue Officer that the transaction may be converted into a prescribed form of mortgage for a term of twenty years with effect from Kharif, 1946 to Rabi, 1966. Upon taking down his agreement in the proceedings recorded on the mutation-sheet, the Revenue Officer sanctioned the mortgage mutation for a period of twenty years noted above and observed that upon expiry of the term, the land shall be redeemed without payment of mortgage money. It was significant that the mortgage mutation was attested with express consent of Bahu.
2. ' Original mortgagor was dead. He was survived by his three sons, namely, Ghulam Muhammad, Ghulam Jaffar, Ghulam Sarwar. Upon his death, they inherited equity of redemption in the land and were its owners subject to the above mortgage on it. In course of time, by Mutations No, 716, 718, Ghulam Muhammad and Ghulam Jaffar mutually exchanged their lands in favour of Ghulam Sarwar. Consequently, he became exclusive owner of the equity of redemption in the land in dispute. Upon expiry of twenty years' period fixed in the mortgage Mutation No, 328, Mutation No, 703 was entered and finally attested on 9-8-1965 in favour of the owners for redemption of the land. Ghulam Muhammad alone attended the mutation proceedings. Bahu, however, had not appeared in them.
3. ' Sons of Bahu, namely, Ameer, Kameer and his daughter Mst. Daulan instituted a civil suit against three sons of original mortgagor, namely, Ghulam Muhammad, Ghulam Jaffar and Ghulam Sarwar for cancellation of Mutations No, 328, 703 sanctioned on respective dates noticed above. In substance, their case was that the mortgage security was still subsisting and the mortgage had not been redeemed in accordance with law. Alongwith three sons of the original mortgator, Mst.
4. Jawai widow of Bahu was impleaded as defendant No,4 in the suit. Defendants No,1 to 3 submitted a joint written statement and traversed the averments in the plaint. Their case was that Revenue Record was altered in accordance with the agreed terms of mortgage in mutation No, 328, sanctioned on 13-12-1946.
5. ' Consequent upon redemption of the land in Mutation No,703, Ghulam Sarwar brought a petition for ejectment of Kameera from the land. On 3-2-1968, ejectment was decreed in his favour by a Revenue Officer. Ejectment order was executed and possession of the land was taken on the spot on 16-4-1968. This information was available on the record of the trial Court. Copy of the ejectment order also existed on the record of the trial Court.
6. ' On 13-6-1967, the trial Court raised following issues for determination:-
(1) Are the plaintiffs estopped from bringing this suit ? OPD
(2) Whether defendants 1 and 2 are unnecessary parties ? OPD
(3) Whether the plaintiffs are mortgagees in possession of the property in dispute ? OPP
(4) Whether the land in dispute was mortgaged for a period of 20 years from Kharif 1945 to Rabi 1965? If so, has the land been redeemed by efflux of time ? OPD
(5) Relief.
7. ' Parties to the suit gave evidence to support their respective versions. Upon its scrutiny, the trial Court decreed the suit of the plaintiffs, on 19-9-1968, and appeal preferred from the decree was dismissed on 10-9-1969, by learned Additional District Judge, Jhang. Thereupon, a second appeal was presented in this Court. It was admitted on 20-11-1969.
8. ' Appellants were represented by Lal Khan Baluch, Advocate. Respondents did not attend at the hearing. Therefore, arguments on merits were heard in their absence.
9. Facts have already been enumerated above. It was visible from them that by agreement of Bahu, transaction contained in the registered deed was treated and converted into a prescribed form of mortgage for a term of twenty years for redeeming itself automatically upon efflux of the fixed period. This was done in accordance with section 6(1) of the Punjab Alienation of Land Act, 1900.
10. Bahu was marked present in the mutation proceedings recorded by the Revenue Officer. His presence was not denied by him in his lifetime. Even otherwise, there was no reason to doubt the correctness of proceedings taken on the mutation by the Revenue Officer. A presumption of regularity and correctness attached to the performance of the official acts. Therefore, there was good reason to think that Mutation No, 328 was sanctioned in the manner indicated in it. Till the filing of the present suit on 19-4-1987, correctness of Mutation No, 328 was never questioned.
11. Inordinate delayed objection to its correctness re-enforced its genuineness. Bahu himself conceded to the conversion of transaction in the prescribed form in mutation No, 328. He gave no proof of his ownership of the land in the District or ordinary residence in it. He was not shown to be a member of notified agricultural tribe in terms of section 4 of the Punjab Alienation of Land Act, 1900. In Lahauri Ram v. Amar Chand AIR 1938 Lahore 784, Ram Lall, J. Of the then Lahore High Court speaking on section 4 of the Punjab Alienation of Land Act observed :-- "The groups in the Land Alienation Act are territorial and a person who is a notified agriculturist in one District need not be an agriculturist for the purpose of the Land Alienation Act in another District. Similarly a person belonging to a particular tribe or caste may be an agriculturist in a particular Tahsil for the purposes of acquiring property in that Tahsil and enjoying the other benefits of the Act in that Tahsil."
12. There was no dispute and the record established it also that the mortgagor was a statutory agriculturist within the meaning of Land Alienation Act. Therefore, in absence of a sanction from the Deputy Commissioner of the District, a permanent alienation of the land by a statutory agriculturist in favour of a non-agriculturist could take effect only as a usufructuary mortgage in form (a) permitted by section 6 for such term not exceeding twenty years. Upon efflux of the statutory period fixed for the usufructuary mortgage, the mortgage-debt shall be extinguished and the mortgagor or his successors shall be entitled to re-delivery of the land. Section 13 of Alienation of Land Act gave power to the Deputy Commissioner to order ejectment of the mortgagee remaining in possession after the term. Upon this view, objection by successors of Bahu to the redemption of the land was inconceivable. As I have already said, the transaction in the registered deed was substituted by agreement between the parties and the same was in accordance with the provisions of the Alienation of Land Act. To me, there was no bar for substituting a new arrangement. None was hinted at the hearing or seen in the impugned judgments. Therefore, the agreed transaction could not have been nullified. Upon this view, .I would allow the appeal, set aside both the impugned judgments and decrees of the lower Courts and dismiss the suit by leaving the parties to bear their own costs in this Court.
13. ' Records be returned.
14. ' Appeal accepted.
15. ' C.M. 224-C/1993.
16. ' Qazi Zamir Ashraf, Advocate.
17. 2-3-1933: Second appeal was heard ex parte and decided on 27-2-1993 by me. Kamir-respondent No,2 has applied for setting aside of the ex parte decree for claiming re-hearing of the appeal afresh. C.M. Came up before me on 21-3-1993. A notice was issued to Lal Khan Baluch, Advocate for appellants for the following day. He has left for Mu'tan Bench. Learned counsel for respondent No, 2 was put to specific notice for addressing on merits of appeal also. I have heard the matter afresh from him. He submitted that Bahu was a member of notified agricultural tribe in the District and Revenue Officer below the rank of Deputy, Commissioner could not convert the mortgage into the prescribed form under provisions of Punjab Land Alienation Act, 4900. Further, mortgage could not have been redeemed without payment of mortgage-money, in the sum of Rs,2,500.
18. Above noted points have been taken care of and already dealt with in the judgment sought to be re-opened. As I have already expressed on them, it shall be a purposeless exercise to go over the matter all along once again without a change in result . For avoidance of mere duplication and unnecessary repetition, I decided to hear the learned counsel for respondent No,2 in the application for setting aside of the ex parte decree on merits of the appeal and having found no merit in his contentions, shall dismiss the petition.