' The brief facts, relevant for the disposal of this writ petition, are that one Aziza s/o Khairo had mortgaged a portion of his agriculture land in favour of respondents Nos. 4 to 8. The details of which are given below:-
(a) through mutation No, 2340 attested on 31-12-1947 Khasra Nos. 776, 754, 755, 775 measuring 7 Kanals 3 Marlas situated in Malsa. This land was mortgaged in favour of Muhammad Zaman the predecessorin-interest of respondents.
(b) through mutation No, 291 attested on 9-7-1954 mortgaged Khasra No,634 measuring 2 Kanals and 4 Marlas in favour of respondents Nos. 4 to 6.
(c) On 9-7-1954 vide mutation No, 292 further mortgaged Khasra No, 635 measuring 4 Kanals 4 Marlas in favour of respondents Nos. 4 to 6.
2. Aziz Khan has since died and the petitioners Nos. 1 to 15, Fazal-urRehman etc., are his legal heirs.
The petitioners-mortgagors filed 3 separate applications in the Court of Revenue E.A.C/Collector for redemption/restitution of the land as the land had already remained in the possession of respondents Nos. 4 to 8 for a period of more than 20 years. These applications were accepted by the Revenue EA.C/Collector who passed an order that only symbolic possession would be given to the petitioners and that the physical possession will remain with respondents Nos. 4 to 8.
3. Aggrieved by the said order the petitioners-mortgagors filed appeals before respondent No, 2/Additional Commissioner, Hazara Division, Abbottabad, who accepted all the three appeals by his consolidated judgment dated 15-2-1986 and directed that the possession be delivered to the petitioners on the spot after assessing the amount of compensation, if any improvement had been made in the disputed property.
4. This judgment was challenged before the learned Senior Member Board of Revenue (Mr. Islam Bahadur Khan) who vide: his judgment dated 10-7-1991, in Revision Petition No, 15/83 (C) (Aziz etc. v.
Fazal-ur-Rehman etc.) came to the following conclusion:- "From the careful perusal of the revenue record on the file it is clear that the mortgagees happen to be the tenants-at-will since the time of getting the land mortgaged vide mutation No, 292 attested on 9-7-1954.
' The predecessor of the petitioners was a tenant of the suit land. Therefore, on the expiry of mortgage, the mortgagees will revert to their original position under the law. The petitioner's predecessor as mortgagee happens to be in possession of the suit land.
' In such like cases when the mortgage happens to be the tenant prior to mortgage and also a co- sharer subsequently, in possession of a particular area of joint property, the mortgagees would be entitled to retain possession."
5. As a result thereof the learned Senior Member Board of Revenue set aside the order dated 15-2- 1986 of the learned Additional Commissioner, Hazara Division, Abbottabad and upheld the order dated 19-8-1985 of the Collector, Abbottabad.
6. The vires/legality of the order mentioned above has been assailed/challenged before us in this writ petition.
7. Malik Fazal Hussain, Advocate, learned counsel for the petitioners and Mr. Abdul Karim Malik, Advocate, learned counsel for the respondents present and heard. We have also gone through the record of the case carefully.
8. The learned counsel for the petitioners submitted that usufructuary mortgage is one where the mortgagor delivers possession of the mortgaged property to mortgagee, and authorises him to retain such possession until payment of the mortgage money. That he also authorises him to receive the rents/profits accruing from the property in lieu of interest. The counsel for petitioners further submitted that it is thus apparent that the two status were inconsistent with each other. In the former the person (tenant) in possession was liable to pay rent to the owner (landlord) and in the latter the person (mortgagee) in possession would enjoy the usufruct in lieu of interest of the mortgage security which remained intact and so long as the same was not repaid the mortgagee was entitled to retain possession. According to the learned counsel for the petitioners the moment the tenant obtained the property, under his tenancy, on mortgage from the landlord his status would convert into that of mortgagee and the status of landlord would convert into that of mortgagor, that thereafter the relationship of tenant and landlord would cease to exist.
Consequently the question of reverting to the original status of tenant after the redemption vault not arise. Reliance was placed on a case reported in 1992 SCM R 2188 (Faqir Muhammad and others v. Muhammad Akram Khan). It was held:-
(a) Transfer of Property Act (IV of 1882)-- ---S. 58--North-West Frontier Province Tenancy Act (XXV of 1950), S.2(v)--Redemption of mortgage--Effect--Predecessor-in-interest of petitioners having been inducted into possession in his capacity as mortgagee under the mortgage and after his death his heirs being in possession as mortgagees, they were legally bound to deliver physical possession to mortgagors/respondents on redemption--Mortgagees' pleas that their predecessor-in-interest was tenant-at-will, prior to creation of mortgage and that they could retain possession till they were ejected under provisions of Act XXV of 1950 would be of no effect as they could not retain both the status, one that of tenant- at-will and the other as mortgagees at the same time--On creation of mortgage, tenants status was converted into mortgagees.
(b) Transfer of Property Act (IV of 1882)-- ---S. 58--North West Frontier Province Tenancy Act (XXV of 1950), S.2(v)---Usufructuary mortgage---Essentials---Tenant in possession of property obtaining mortgage of same--Tenant's status would be converted to that of mortgagee and status of landlord into mortgagor-- Usufructuary mortgagee when to deliver possession of mortgaged property."
9. On the other hand, the learned counsel for the respondents submitted that the judgment of the Senior Member Board of Revenue was correct inasmuch as it was held in case reported in PLD 1982 Rev. 38 (N.-W.F.P.) (Raj Wali etc. v. Nawab Shah etc.) that mortgagee in possession of land subject to mortgage at the time of commencement of mortgage or even earlier is not liable to be dispossessed with redemption or restitution of mortgage because such person, after the extinguishment of the mortgage, would again acquire the position of a tenant which he had prior to the mortgage. The learned counsel further submitted that the ejectment of the tenant is not automatic with the restitution. If the mortgagee was in possession of the land before the mortgage as a tenant then in that case when the mortgage is redeemed then the mortgagee will acquire the status of a tenant. He accordingly submitted that this writ petition was misconceived and was liable to be dismissed.
10. We are afraid we cannot agree with the contention of the learned counsel for the respondents because it was held by their Lordships of the Honourable Supreme Court of Pakistan that when a tenant in possession of the property obtains the same on mortgage then in that case the tenant's status changes and is converted into that of a mortgagee. Similarly the status of the landlord also changes and is converted into that of a mortgagor. The plea of the mortgagees that they were tenants-at-will, prior to the creation of the mortgage and that, therefore, they could retain the possession till they were ejected under the provisions of Act XXV of 1950 would be of no effect as they could not retain both these status at take same time i,e,, one that of the tenantat-will and the other that of a mortgagee. On creation of a mortgage the status of a tenant would convert into that of a mortgagee.
11. In the circumstances it is clear that the moment the tenant obtained the property under his tenancy on mortgage from the landlord his status was converted into that of mortgagee and the status of landlord into that of a mortgagor. Since then the relationship of a tenant and landlord ceased to exist between the parties as a consequence thereof there would arise no question of reverting to the original status of tenant after the redemption. The findings of the learned Senior Member, Board of Revenue, disallowing the delivery of possession in spite of the redemption of the suit property in favour of the petitioners, therefore, suffers from legal infirmity and as such the same is set aside/annulled.
12. Resultantly this writ petition succeeds and we declare that the impugned judgment and order dated 11-7-1991 passed by the learned Senior Member Board of Revenue is without lawful authority, of no legal effect and therefore, set aside and that of respondent No, 2 is hereby restored. The petitioners shall be entitled to take physical possession of the land from the contesting respondents. Costs to follow the events.