' Facts leading to the filing of this writ petition, briefly narrated are that on 5-7-1895 one Bulanda mortgaged his land measuring 8 Kanals 13 Marlas in favour of Gobind Dass, an evacuee for Rs,150 through a registered sale-deed. Mutation was attested in lieu thereof on 22-12-1895. Bulanda died leaving behind two sons namely, Fateh Khan and Alfa predecessor-in-interests of Sardar Khan respondent No,1 (who has also died in the meantime). In the settlement of 1913-14, the disputed area was mentioned as 10 Kanals 3 Marlas.
' On 24-10-1913, Fateh Khan and Alfa aforementioned, created, another encumbrance on the land by executing a registered mortgage deed for Rs,77 (Eezadi Rehm) in favour of Gobind Das mortgagee. Mutation in respect of this transaction was attested on 27-11-1914.
2. It appears that no action was taken by the Rehabilitation Authorities to treat the evacuee interest in the property as evacuee. Be that as it may, it was allotted in the name of two persons, who through Mutations Nos.1036 and 1040, alienated it in favour of one Muhammad Abdul Latif on 14-12- 1965, who in his turn, sold it to the petitioners on 10-5-1966.
3. On 17-6-1971 Sardara son of Alfa moved an application before the Collector, Gujrat exercising powers of Deputy Settlement Commissioner (Lands) for redemption of the mortgaged land on payment of mortgaged money of Rs,227 (consolidated amount mentioned in the two mortgaged deeds dated 5-7-1895 and 24-10-1913, referred to above). Vide order dated 12-1-1972, this application was dismissed by respondent No,3 on the ground that prescribed period of 60 years for redemption of mortgage had elapsed.
' On 14-2-1972, Sardara respondent No,1 filed an appeal before the Settlement Commissioner, Rawalpindi impugning the order, dated 12-1-1972 which was returned to him for presentation before Settlement Commissioner/Additional Deputy Commissioner, Gujrat.
' After promulgation of Evacuee Property and Displaced Persons Law (Amendment) Act, 1973, it was sent back to the Settlement Commissioner, Rawalpindi who again returned it to Additional Deputy Commissioner/Settlement Commissioner for disposal as a revision petition in view of the change in the law. This revision petition was dismissed ultimately on 20-4-1974 on the ground that 60 years' period had elapsed before the presentation of the application for redemption.
4. A second revision petition was filed before the Settlement Commissioner, Rawalpindi who accepted it on 20-9-1975 and allowed the application for redemption. It is in those circumstances that the petitioners, whose predecessors-in-interest has purchased the property from the allottee of the disputed land have filed the present petition.
5. It is contended by the learned counsel for the petitioners that--
(i) 60 years' period -.Vas to be counted from the date of first mortgage and on that basis the petition was clearly barred by time as in the second mortgage there was no acknowledgement of the first encumbrance;
(ii) no application, indeed, was competent before Collector/Deputy Settlement Commissioner (Lands) as it could only lie before the Custodian;
(iii) no second revision petition was competent and the first order dated 204-1974 had thus attained finality.
6. Learned counsel for the petitioners in support of the first contention has placed reliance on Nazeef v. Abdul Ghaffar (PLD 1966 SC 267) to contend that as the second encumbrance placed on the disputed land on 24-10-1913 was to be excluded from consideration for the purpose of computation of period of limitation, the application for redemption from the date of creation of first charge, was hopelessly barred by time.
In my view, even if the contention that the date of the creation of the second charge is to be excluded from consideration for the purpose of computation of limitation is accepted, the petition for redemption from the date of the first charge, has to be treated within time. The mortgagee of the land in question migrated to India in the wake of independence. By that time, the period of limitation i,e, sixty years if counted from 5-7-1895 had not expired. The period of limitation stopped running with effect from 15-8-1947 against the evacuee mortgagee in view of the provisions of section 13 of Limitation Act, 1908 which reads as under:-- "In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from Pakistan and from the territories beyond Pakistan under the Administration of the Central Government, shall be excluded."
' This question has been succinctly dealt with in Muhammad Shafi v. Ghulam Qadir PLD 1971 Lahore 71 at page 74 as under:-- "It cannot be said that the period of limitation although has stopped against the evacuees, will continue to run in favour of the Custodian, he having stopped into their shoes. By operation of law, evacuee properties, have become vested in him, yet he is not successor in interest of the evacuee so as to claim benefit under the law of limitation. Articles 148 and 120 of the First Schedule, moreover apply to suits and not to applications before the Custodian, under the provisions of the Pakistan (Administration of Evacuee Property) Act XII of 1957."
' It view of the above, the objection about the redemption application being barred by time is overruled.
7. As regards the objection of the respondents that no application could be moved before District Collector/Deputy Settlement Commissioner (Lands), the same is misconceived. There is no cavil with the proposition that the Custodian had the jurisdiction to order redemption of mortgaged properties by virtue of section 41 read with section 25(2)(i) of Act XII of 1957. Powers under these provisions were duly delegated by the Custodian to the officers in Rehabilitation hierarchy. It is in view of this situation that the Chief Settlement and Rehabilitation Commissioner by his Memorandum No,6883-59/7042/R(P), dated 8-12-1969 directed as follows:-- "The land mortgaged by locals with evacuee has remained excluded from allotment under the Rehabilitation Settlement Scheme. The question of its final disposal has been considered and it has been decided that the amounts (mortgagee money) due to the evacuee in such cases should be recovered by the local Rehabilitation authorities within their respective areas of jurisdiction. The needful will be done under section 25(2)(i) of the Pakistan (Administration of Evacuee Property)
Act, 1957. Powers under this subsection have since been delegated to the Deputy Rehabilitation Commissioners and Assistant Rehabilitation Commissioners by the Custodian of Evacuee Property, vide Custodian's orders dated the 28-8-1959/27-11-1959. The Assistant Rehabilitation Commissioners concerned should immediately issue a notice to the local mortgagors of this category to redeem the properties involved within one month, failing which the evacuee right in the properties shall be auctioned under section 25(2)(s) of the Pakistan (Administration of Evacuee Property) Act.
1957........
' The position was further clarified by the Chief Settlement and Rehabilitation Commissioner in his Memorandum No,3519-3888-R(P), dated 12-11-1960 in the following words:-- "It may be observed that after the migration of evacuees their properties vested in the Custodian.
Non-evacuee mortgagors could have sought redemption of the mortgage or recovery of possession in their immovable property from the Custodian of Evacuee Property."
The time prescribed by the Chief Settlement and Rehabilitation Commissioner in his memorandum dated 12-11-1960 for redemption of mortgaged properties had been extended from time to time. I, therefore, hold that the application for redemption was rightly moved before Deputy Settlement Commissioner, a delegatee of Custodian.
8. As regards the third objection of learned counsel for respondents Nos.1 and 2 about the incompetency of second revision, same is well based in law. However, while exercising jurisdiction under Article 199 of the Constitution, this Court is not obliged to set aside every illegal order, challenged before it, in case it is found that as a result of this exercise, grave injustice would be caused or another illegal order passed at an earlier stage would be revived. This principle has been authoritatively laid down by their Lordships of Supreme Court in Rehmat Ullah v. Hameeda Begum (1986 SCM R 1561) as follows:-- "Undoubtedly, the Constitutional jurisdiction under Article 199 of the Constitution is discretionary.
Even when order impugned before the High Court is found to be lacking in some legal or jurisdictional requirement, the Constitutional provision does not compel the High Court to issue a writ muchless that of certiorari or mandamus. The merits of the case have also to be seen in order to examine whether the discretion is to be exercised or not in favour of the party successfully challenging the legality of the order impugned in writ jurisdiction. If the result is that by setting aside such an order another order would be revived which is unjust or unfair or is otherwise also illegal, then before setting aside the first mentioned order, the Court will have to examine more carefully the question of exercise of discretion and in proper cases would decline to exercise the discretion an would thus not set aside an order even it is illegal provided the setting aside of such an order would result, inter alia, in injustice or revive another illegal order. It was recently held in a case arising from disposal of evacuee property Begum Shams-un-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413 wherein similar situation had arisen that even assuming that the Settlement Commissioner in that case was competent to pass an order passed by him and also legally justified in declaring such an order as without lawful authority in exercise of his power under Act XXVIII of 1958, but the order of Chief Settlement Commissioner nevertheless was just and proper. And if the effect of setting aside the order of Chief Settlement Commissioner was to restore the unjust order of the Settlement Commissioner, the High Court ought not to have exercised its writ jurisdiction for bringing about such result."
' Applying this principle to the instant case, it is clear that if the order dated 20-9-1975 passed in second revision is set aside, the earlier order dated 20-4-1974 would stand revived. It has already been held by me that this order is manifestly illegal, having wrongly decided the question of limitation and thus injustice would be perpetuated by denying lawful right of the mortgagor to redeem his land. I would, therefore, in equitable jurisdiction under Article 199 of the Constitution, refuse to quash the order dated 20-9-1975 impugned in these proceedings.
9. There can be no doubt that in the instant case, it is only the equity of redemption which duly vested in the Custodian. The mortgage money due to the mortgagee, as laid down under section 14(a) of Displaced Persons (Land Settlement) Act, became a charge of such land. The interest of the evacuee in the land in dispute vested in the Custodian only to the extent of the mortgage money and the land could not have been as such treated to be evacuee property, available for allotment to the predecessor-in-interest of the petitioners.
' It is also not seriously disputed that the land had not been treated as evacuee property before 1-1- 1957 in terms of section 3 of Act XII of 1957. The allotment of the land in dispute, was ab initio void and, therefore, no rights of ownership came to vest in predecessors of Muhammad Abdul Latif who could, in his turn, alienate the same in favour of the petitioners.
10. For what has been stated above, there is no merit in this writ petition. It is accordingly dismissed.
11. However, that is not the end of the matter. The petitioners are bona fide predecessors for value of the disputed land which was allotted as far back as 1965 to their predecessor-in-interest as evacuee property. They are being deprived of it at this late stage of the day. They deserve to be properly compensated. It is therefore observed that they may apply to Member, Board of Revenue/Notified Officer for transfer of alternate land measuring 8 Kanals, out of the evacuee land, now forming part of Provincial Government pool. In case such an application is moved, it shall be treated to be a pending matter within the meaning of Evacuee Laws (Repeal) Act, 1975, and necessary orders for transfer of available land measuring 8 Kanals shall be passed in their favour.
No costs.