' SAAD SAOOD JAN, J.---This is an appeal by special leave from the judgment of the Peshawar High Court, affirming the judgment of the Additional District Judge, Kohat, which had reversed the judgment of the trial Court and decreed the suit of the respondent.
2. The dispute between the parties relates to some agricultural land mortgaged with possession by one Ibrahim Khan with Bahram Khan, predecessor-in-interest of the appellants for Rs,99. The mutation in this regard was attested by the Revenue Officer on 27-11-1902. Subsequently, Ibrahim Khan sold the land to Kishan Mohan, a non-Muslim. On the eve of Independence Kishan Mohan left Pakistan. Treating the land in dispute as evacuees property the settlement authorities allotted it to the respondent. The appellants approached the Deputy Custodian of Evacuee Property for a declaration that the property in dispute was non-evacuee but their claim was rejected by him by an order made on 15-6-1976. On 19-4-1988, the respondent brought a suit against the appellants for possession of the land in dispute, through redemption of the mortgage on payment of Rs,99.
The suit was dismissed by the trial Court inter alia on the ground that it was barred by time. The respondent filed an appeal before the Additional District Judge which was allowed and her suit was decreed. The appellants filed a revision petition in the High Court but it failed. They have now come in appeal to this Court.
3. Leave to appeal was granted to the appellants only to consider whether the suit brought by the respondent was within time.
4. The contention on behalf of the appellants is that the mortgage in question was created in 1902 and as it was nor redeemed within sixty years they had become full owners of the land in dispute and the suit for redemption brought in 1988 by the respondent was hit by the bar of limitation. This contention is clearly without merit, for, it does not take into account the various laws that were enacted after 1947 to, inter alia, protect and preserve the property left by the non-Mulsim on emigration to India. In this regard, the earliest enactment that came into force in N.-W.F.P. Was the Pakistan (Protection of" Evacuee Property) Ordinance, 1948, and the last in the series was the Pakistan (Administration of Evacuee Property) Act, 1957. As already stated, Kishan Mohan who - owned the equity of redemption in the land in dispute left Pakistan immediately or soon after independence. He thus became an evacuee under these laws and as in the land in dispute he held an interest it became evacuee property. By operation of-section 6(1), Pakistan (Administration of Evacuee Property) Ordinance, No, XV of 1949, the land in dispute became vested in the Custodian.
This position continued under the different succeeding laws relating to the administration of evacuee property till 1958 when the Displaced Persons (Land Settlement) Act came into force.
Consequent upon the notifications issued under section 4 of the Act all agricultural lands which were evacuee property became vested in , the then Central Government for the purpose of constituting a compensation pool.
5. Agricultural lands formerly owned by evacuees which had been mortgaged by them with Muslims residents in Pakistan, were allotted by the settlement authorities to claimants against their verified claims. A question arose whether upon such lands becoming part of the compensation pool the rights of the mortgagees stood extinguished. This question was considered by this Court in the case of Muhammad Chan v. Chief Settlethent and Rehabilitation Commissioner (PLD 1962 SC 1284) and it was held that the right, title and interest of the mortgagees had not been acquired by the notifications issued under section 4 of the Displaced Persons (Land Settlement) Act and unless the mortgages were redeemed either by the Government or by the allotted, the mortgagees were entitled to retain possession of the lands under their mortgages.
6. The said judgment of this Court led to the promulgation of an Ordinance known as Displaced Persons (Land Settlement) (Second Amendment) Ordinance, 1962, which inserted section 14-A in the Displaced Persons (Land Settlement) Act. It inter alia validated the allotments of lands which were lying under mortgage with Muslims. The effect of this Ordinance was considered by a Full Bench of the West Pakistan High Court in the case of Muhammad Yusuf v. Chief Settlement and Rehabilitation Commissioner (PLD 1963 Lahore 590). The Full Bench held that even though the new section validated the allotment yet it did not authorize the allotted to dispossess the mortgagees in possession till the mortgage money was paid to them. This judgment led to another amendment in section 14-A by Displaced Persons (Laws Ainendment) Ordinance, 1964. It added a new proviso. 4o subsection (1) of this section. After the amendment the subsection 'read as-follows: "Notwithstanding anything contained in any law for the time being in force or in any judgment of any Court, where a person has been allotted, under any Scheme prepared under section 14, any land which ' was at any: time before the commencement of this Act, subject to a mortgage created by an evacuee, the allotment shall be deemed to be valid: ' Provided that ---
(a) the mortgage money due to the mortgagee, shall be a charge on such land; and
(b) Where the period of mortgage has expired, the mortgage, money shall be paid to the mortgagee within a period of eighteen months from the commencement of the Displaced Persons (Land Settlement) (Second Amendment) Ordinance, 1962."
' The effect of this newly cast subsection was considered by another Full Bench of the West Pakistan High Court in the case of Muhammad Nawaz v. Muhammad Amin (PLD 1969 ' Lahore 622) and it was held: "The conclusion therefore, is irresistible that the effect of the proviso to subsection (1) of section 14- A is to efface the mortgagee rights held by the petitioners in the lands in question and in their stead to create a mere charge on the land to the extent of mortgage sum."
' This view was approved by this Court in the case of Muhammad Tail v. Chief Settlement Commissioner (1970 SCM R 73).
It is to be noticed that the proviso added to section 14-A(1) by the Displaced Persons Laws Amendment Ordinance was given retrospective effect, that is, it became operative from 23-9-1958 when Displaced Persons (Land Settlement) Act came into force. Thus, as a result of this proviso the mortgage in favor of the appellants stood converted into a charge. In the circumstances, even if it be assumed, although we do not offer any comments on its validity, that the mortgage in their favor was required to be redeemed within sixty years it will not be of any help to the appellants, for, as before the expirty. Of the said period the mortgage in their favor ceased to exist and now the only interest that they had in the land was that of a charge-holder. It is to be noticed that in their plaint the respondent had offered to pay the amount of charge to them. The contention. Of the appellants therefore that they had become owner of the land, in dispute or the respondent's suit for possession was barred by time is without any substance. This appeal is hereby dismissed with costs.