' Through this revision petition Muhammad Akram and Azim Khan, defendants 1 and 2 (hereinafter called the petitioners) have challenged the concurrent findings of the two Courts below, whereby the trial Court, vide its judgment and decree dated 25-2-1992, granted a preliminary decree for redemption of the suit land in favour of Arsala Khan etc. Plaintiff-respondents (hereinafter called the respondents), which was appealed against by the petitioners before District Judge, Swabi, but in vain.
2. Brief facts of the case are that the respondents brought a suit for declaration to the effect that they were owners in possession of the land as detailed in the heading of the plaint, situated in village Batakara, Tehsil and District Swabi and entry of mortgage regarding the suit land in favour of the petitioners and Mutation Nos. 3404, 3405 and 3406 attested on 19-6-1981 by the petitioners in favour of defendants 3 to 5 and the Redemption Mutation Nos.3041 to 3044 attested on 27-2-1976 in favour of the petitioners on behalf of Najab Khan were wrong and ineffective against the rights of the respondents. In the alternative, the respondents prayed for possession by redemption of the suit land on payment of the mortgage amount to be fixed by the Court. The assertions made in the plaint have been reproduced by both the Courts in their judgments which need not be repeated again.
3. The suit was contested by the petitioners by filing their written statement. The pleadings of the parties were reduced into as many as 9 issues including the relief. Both the parties produced their evidence in support of their claims. At the close of the trial, the learned trial Judge, vide his judgment and decree dated 25-2-1992, granted a preliminary decree for redemption of the suit land in favour of the respondents with respect to their own shares. The petitioners were not satisfied with this decision of the learned trial Court, therefore, they filed an appeal before the District Judge, Swabi which did not bear any fruit. Hence the revision petition in hand.
4. I have heard the learned counsel for the parties and perused the record of the case.
5. The record shows that prior to the institution of the present suit, a suit by the petitioners was filed, wherein they were granted decree regarding the land mortgaged under Mutation No,374 attested on 5-6-1910, which decree was maintained up to the apex Court of the country. Azeem Khan (D.W.
1) in his statements before the Court stated that the respondent did not pursue the previous suit and did not share the expenses hence they have become the owners of the mortgaged property, as limitation period has expired. In cross-examination he admitted that the land belonged to four brothers who jointly mortgaged the land to Najab Khan, out of whom only two filed a suit for redemption while the other two were arrayed as defendants. He also admitted that respondent's land is mortgaged with him but it is time-barred. Since the factum of mortgage stands admitted by the petitioner, therefore, the respondents had an inherent right to get it redeemed from the co- mortgagors who have redeemed the mortgage and thus subrogated the rights of mortgagees.
Similar question came for consideration before a Full Bench of this Court in case of Sattar Khan and others v. Mst. Zamu Jan PLD 1972 Pesh. 78, which was answered as under:--- "In view of this discussion our answer to the question referred to us for decision is that a suit against a co-mortgagor, who has redeemed a mortgage and is thus subrogated to the rights of the mortgage by the non-redeeming mortgagor for redemption, would be governed by Article 148 of the Limitation Act, provided the period of 60 years prescribed thereunder has not expired from the date when the property was mortgaged by all of them. In case the said period has expired then the co-mortgagor would still be able to recover his share of the property by filing suit within 12 years under Article 132 of the Limitation Act and for this purpose the period of limitation would commence from the date when the property was redeemed by the co-mortgagor.
The right of mortgagors to redeem the mortgage property cannot extinguish by changing hands and the mortgagor has a right to redeem mortgage in 60 years. It is well established that changing hands of the mortgagee rights constitute acknowledgement of liability to equity of redemption of mortgage, and the time for redemption in such cases starts afresh from the change of mortgagee rights. In case of Mst. Zarmewa and others v. Khial Bat Khan reported in 1992 SCMR 1804, the Supreme Court about acknowledgment observed as under:--- "However, it is further commented that it is not correct to assume that in all cases 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 argument 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 visualise 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 acknowledgments 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/mortgage."
6. Another important aspect of the case is that learned Shariat Appellate Bench of Supreme Court of Pakistan has declared section 28 of the Limitation Act to be repugnant to the injunctions of Islam in case of Maqbool Ahmad v. Hakoomat-e-Pakistan reported in 1991 SCMR 2063, which reads as follows:--- "For reasons recorded in two separate judgments, the Court is unanimous in holding that section 28 of the Limitation Act, 1908 (Act No, IX of 1908) is repugnant to the Injunctions of Islam in so far as it provides for extinguishment of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said property. It is further held that this decision shall take effect from 31st of August, 1991 and on this date section 28 aforesaid shall also cease to have effect."
' In another case reported in PLD 1992 SC 225, Supreme Court has granted leave to appeal to consider the contentions "that burden of proof remaining always on the plaintiffs in such a case, the expiry of period of 60 years from the time of repayment had not been established; that having now been held that section 28, Limitation Act, 1908, was repugnant to the Injunction of Islam there was no reason why the limitation regarding the law of mortgages should be kept intact notwithstanding the fact that the same was also against the Injunction of Islam and that if the law which was repugnant to the Injunction of Islam could not be considered as ineffective unless so declared and held by the competent forum, and would continue to operate till the needful was done in that behalf, case having been launched by the side who under the Islamic principles were in the wrong and were making immoral claims, they should have been denied the relief claimed under section 42 of the Specific Relief Act, 1877 as in the said provision the discretion allowed to the Court had not only been visualized in the use of word "may" but in addition in order to emphasize the element of discretion and its importance in section 42 of the Specific Relief Act, 1877 the expression "in its discretion" has also been used and if in any case like the present one when the grant of relief to the plaintiffs side would be clearly in the negation of the Injunction of Islam, on account of repugnancy, there would be no other case better qualified for denial of the relief in the discretion of the Court under section 42, Specific Relief Act, 1877". Since section 28 of the Limitation Act has been declared to be un-Islamic and according to the ruling (1991 SCMR 2063), said section stand ceased to live effect from 31st August, 1991, hence the contention of the petitioner regarding limitation has no weight.
' Both the Courts after proper appraisal of evidence on the record both oral and documentary, arrived to the correct conclusions, hence no exception thereto can be taken. Consequently this revision petition is dismissed with no order as to costs.