ORDER MIAN MUHAMMAD AKRAM, MEMBER, (CONSOLIDATION):- Aggrieved by two different orders of the same date 2.10.1988 of the Additional Commissioner (Consolidation), Multan Division, Multan whereby he rejected the appeal of Nazar Muhammad etc. Petitioners in (ROR No. 2103/1988) and accepted the revision of Sultan Ahmad etc. Respondents (in ROR No. 2104) the petitioners have now preferred these separate revisions for setting aside both the aforesaid orders under Section 13 of the Consolidation of Holdings Ordinance 1960. As the respondents in both the aforesaid revisions are the same, the facts being identical and the parties interlinked, therefore, these are being disposed of by this single order.
2. Briefly, the Consolidation scheme of village Rawani, Tehsil Lodhran, District Multan was confirmed under Section 10(3) of the said Ordinance, by the Consolidation Officer of 29:9.1985. This was challenged in a time-barred appeal of two years, three months and seventeen days by Sultan Ahmad etc respondents. It was contended in the appeal filed before the Collector (Cons) that the predecessors-in-interest of Nazar Muhammad etc (petitioners in ROR No. 2103/1988) and mortgaged land measuring 25k-10m with them. It was claimed that as the period of sixty years had lapsed, therefore, as mortgagees of the said land they were entitled to have their separate wandas. However, during the consolidation proceedings only the share of their entitlement in the capacity of mortgagees had been kept joint in the wanda of Nazar Muhammad etc. Petitioners. As a period of sixty years had expired, therefore, the Collector (Cons) by his order, dated 31.8.1986 ordered the bifurcation and preparation of separate wanda to the extent of 25k-10m in favour of Sultan Ahmad etc. Respondents. It was further observed that the possession of Nazar Muhammad etc. Petitioners (in ROR No. 2103/1988) shall not be disturbed till the final decision of a civil suit regarding this land which was pending between the parties. This order was assailed in appeal by Nazar Muhammad etc. Petitioners before the Additional Commissioner (Cons), who vide his impugned it. Hence this revision.
3. Similarly same Sultan Ahmad etc. Respondents (ROR No.2104/1988) challenged the Consolidation scheme of the aforesaid village dated 30.9.1985 on the same ground claiming that predecessors in-interest of the petitioners Muhammad Azam etc. (ROR No. 2104/1998), had mortgaged land measuring 5k-16m more than sixty years ago. During preparation of Consolidation scheme only the share in their capacity as mortgage of the aforesaid land was recorded in he Consolidation scheme of Muhammad Azam etc. Bearing No. 1287 to 1289, 291,1293, 1296 & 1297 whereas they were entitled to the preparation of separate and as, because a period of sixty years has lapsed, in respect of the mortgaged and. However, the Collector (Cons) by his order dated 16.9.1987 kept pending he disposal of the said appeal, since a suit was pending between the parties. This order was assailed by Sultan Ahmad etc, respondents who is the same party in the connected revision (ROR 2103/1988). The Additional Commissioner (Cons) by king into consideration the fact that a period of sixty years had lapsed, ordered e preparation of separate wandas in favour of Sultan Ahmad etc. Respondents by aking amendments in the wandas of Muhammad Azam etc. Petitioners, however by his impugned order dated 2.10.1988, he further directed that there ill be no change in possession which will be awaited till the decision of the competent Court of Law after the redemption of the said land. The petitioners muhammad Azam etc. Have now challenged the said order in the form of the resent revision before this court.
4. Counsel of both the parties who are the same, were, heard at length, relevant record and connected documents produced by Munshi Muhammad r in-ud-din, Patwari were also examined.
Some of the respondents who failed to pear despite proclamation in the newspaper were ordered to be proceeded against ex parte.
5. It was contended by the Counsel for the petitioners in both the above- mentioned revisions, that respondents as mortgages could only be recorded as titled to a certain share of land which had to form a part of their exclusive and as. The respondents as mortgagees of the land were not holding any proprietary rights and were not owners of any land. Therefore, they were not entitled to a separate Consolidation scheme. The appeal of the responder before the Collector (Consolidation) was untenable as the respondents were holders of any scheme and therefore, could not be considered as an aggrieve party. They have absolutely no locus standi. Moreover, the respondents filed as] in connection with the mortgaged land only in 1986 when they first filed appeal before the Collector (Cons). It was argued that this fact was sufficient] prove that they were not at all owners of the land. The delay of two years, months and 17 days as Condoned by the Collector (Cons) (ROR No. 2103/191 was unlawful, as there was no satisfactory explanation for condonation. Moreo] the civil suit filed by the respondent had been dismissed. Under circumstances, the bifurcation of the wandas as ordered by the lower courts, untenable. To order the bifurcation of the scheme of the petitioners on ground that this was necessitated in order to avoid prolonged litigation between] the parties was not justified and a valid ground. My attention was also draw the fact that a joint wanda was not liable to be partitioned without the corner all the co-sharers. As the petitioners clearly resisted it, therefore, the order of lower Courts for bifurcation of the wandas was ultra vires.
As the respond^ were not recorded as right-holders or in possession of the impugned according to the entries in 'Jamabandi zer-i-kar' which was the basis | Consolidation proceedings in the village, therefore the consolidation author had to carve out wandas on the basis of title and possession.
On both these of the entries were in favour of the petitioners and as such the order of the lc courts being ab initio were null and void and liable to be set aside. It! Accordingly urged that by setting aside the impugned orders of the lower Co] the Consolidation schemes as originally confirmed on 29.9.1985 be restored.
6. On the other had, the learned counsel for the respondents poi] out that a period of sixty years had lapsed and the petitioners had failed to red the mortgaged land in both the above cases.
These, were valuable rights an
7. As regards the so-called civil suit, it was pointed out that in altogether for a different matter which related to the claim with regard to| which was in character.
8. Having given careful consideration to the contentions raised b] counsel of the respective parties and the facts of the case, it is obvious that the of mortgage to the extent of land stated above is admitted by both the parties] also on record that a period of more than sixty years had lapsed, since the was mortgaged by the predecessors in-interest of the petitioners with respondents. In the circumstances of this case, there was no point in prefer specific suit for redemption of the mortgaged land, because it has come to its legal conclusion on the failure of the mortgagor I to redeem it within the time-limit of sixty years. The petitioners are now clearly debarred under Section 3 of the Redemption and Restitution of Mortgaged Lands Act 1964, even to make an application for its redemption. It is pertinent to point out that the ordinary and common law relating to mortgages has been summed up by the Supreme Court in the case of Nazeer Versus Abdul Ghaffar reported in PLD 1966 S.C. 267 as follows:- "Once a mortgage has been created it will remain in existence till it is brought to a termination either by operation, of some law or by agreement of parties and if it remains unredeemed for the period of limitation provided by the Limitation Act, 1908, it matures into ownership. The limitation for redemption being sixty years, the mortgagor, after the lapse of this period, will have to show that the mortgage somehow came to an end if he wants to avoid the consequence of the mortgagee becoming the owner on account of lapse of time."
9. In consequence of the above legal position, the respondents have assumed the status of right- holders of the mortgaged land and they cannot be recorded as mortgagees of the impugned land.
The petitioners are legally not competent to challenge their status in view of the embargo contained in Section 3 of the aforesaid Act referred to above, as they are not legally competent now even to make an application for its redemption. It was obviously the duty of the Consolidation authorities to carve out separate wandas in favour of the respondents by converting their status from mortgagees to right-holders. As envisaged in circular letter of the Board of Revenue No. 149- 90/1570-CH (P) I, dated 23-1-1990 that partitioning of joint khata should be freely allowed, the respondents were not only entitled to the carving out of separate wandas, but also its physical possession as they fully qualified under the said letter.
10. In view of the above facts, I am led to conclude that the present revisions are not only devoid of merit but are legally incompetent. Accordingly by rejecting both these revisions, it is further directed that the respondents are not only entitled to have their separate wandas to the extent of land mortgaged with them, but also its physical possession which should be delivered to them. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.