' 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 of 1988) and accepted the revision of Sultan Ahmad etc. Respondents (in R.O.R. 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 confined 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 of 1988) had mortgaged land measuring 25 Kanals 10 Marlas 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 wands 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 wands to the extent of 25 Kanals 10 Marlas in favour of Sultan Ahmad etc. Respondents. It was further observed that the possession of Nazar Muhammad etc. Petitioners (in ROR No,2103 of 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 of 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 of 1988), had mortgaged land measuring 85 Kanals 16 Marlas 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 the Consolidation scheme of Muhammad Azam etc. Bearing No,1287 to 1289, 1291, 1293, 1296 & 1297 whereas they were entitled to the preparation of separate wandas, because as period of sixty years has lapsed, in respect of the mortgaged land. However, the Collector (Cons.) by his order, dated 16-9-1987 kept pending the 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 (R.O.R. 2103 of 1988). The Additional Commissioner (Cons.) by taking into consideration the fact that a period of sixty years had lapsed, ordered the preparation of separate wandas in favour of Sultan Ahmad etc. Respondents by making amendments in the wandas of Muhammad Azam etc. Petitioners. However, by his impugned order dated 2-10-1988, he further directed that there will 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 present 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 Amin-ud-din, Patwari were also examined. Some of the respondents who failed to appear 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 abovementioned revisions, that respondents as mortgagees could only be recorded as entitled to a certain share of land which had to form a part of their exclusive wandas. 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 respondents before the Collector (Consolidation) was untenable as the respondents were not holders of any scheme, and therefore, could not be considered as an aggrieved party. They have absolutely no locus standi. Moreover, the respondents filed a suit in connection with the mortgaged land only in 1986 when they first filed the appeal before the Collector (Cons.). It was argued that this fact was sufficient to prove that they were not at all owners of the land. The delay of two years, three months and 17 days as condoned by the Collector (Cons.) (ROR No,2103 of 1983) was unlawful, as there was no satisfactory explanation for condonation. Moreover, the civil suit filed by the respondent had been dismissed.
Under the circumstances, the bifurcation of the wandas as ordered by the lower Courts, was untenable. Top order the bifurcation of the scheme of the petitioners on the 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 drawn to the fact that a joint wanda was not liable to be partitioned without the consent of all the co-sharers. As the petitioners clearly resisted it, therefore, the order of the lower Courts for bifurcation of the wandas was ultra vires. As the respondents were not recorded as right-holders or in possession of the impugned land, according to the entries in 'Jamabandi Zer-i-Kar' which was the basis for Consolidation proceedings in the village, therefore, the consolidation authorities had to carve out wandas on the basis of title and possession. On both these points, the entries were in favour of the petitioners and as such the order of the lower Courts being ab initio was null and void and liable to be set aside. It was accordingly urged that by setting aside the impugned orders of the lower Courts, the Consolidation Schemes as originally confirmed on 29-9-1985 be restored.
6. On the other hand, the learned counsel for the respondents pointed out that a period of sixty years had lapsed and the petitioners had failed to redeem the mortgaged land in both the above cases. These were valuable rights and the respondents could no longer be deprived to have the usufruct of the mortgaged land. There was no possibility to procure equitable share of the produce in respect of the mortgaged land from the petitioners which would have become a permanent source of dispute and litigation. Therefore, the lower Court rightly ordered the preparation of separate wandas to the extent of land which was mortgaged with them, by the predecessors-in- interest of the petitioners. Even in the respective wandas of the petitioners, the title of the respondents had been duly recognized, while confirming the Consolidation Schemes.
7. As regards the so-called civil suit, it was pointed out that it was altogether for a different matter which related to the claim with regard to land which was in character.
8. Having given careful consideration to the contentions raised by the counsel of the respective parties and the facts of the case, it is obvious that the fact of mortgage to the extent of land stated above is admitted by both the parties. It is also on record that a period of more than sixty years had lapsed, since the land was mortgaged by the predecessors-in-interest of the petitioners with the respondents. In the circumstances of this case, there was no point in preferring a specific suit for redemption of the mortgaged land, because it has come to its legal conclusion on the failure of the mortgagor 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 v.
Abdul Ghaffar reported in PLD 1966 SC 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 rejected. 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.