Ch. IjAZ AHMAD, J.- The material facts out of which the present revision petition arises are as follows:- That house F-2690 in question is situated in Bazar Chuna Mandi. Chowk Moti Bazar Lahore which was originally owned by Ghulam Rasul. The said Ghulam Rasul mortgaged the house with possession, to Syed Inayat Hussain Shah and Syed Sardar Shah for Rs. 4,500/- vide mortgaged deed dated 15-12-1922 on 5-1-1923. The above-mentioned mortgagees sold their mortgage rights in favour of Malik Mahraj Din the ancestor of petitioner/defendants Nos. 1 to 4 tide mortgage rights sale deed dated 6-2-1933 which was also registered on 6-2-1933 under the same terms and conditions as in the origin mortgage deed dated 15-12-1922.
Accordingly the possession of the said mortgage property was delivered to the said Malik Mehraj Din who had become mortgage with possession. On 18-11-1942 the above-mentioned Ghulam Rasul died issueless and without any wife so the house in dispute was inherited by Muhammad Noor-ud-Din. The petitioners are legal heirs of Malik Mehraj Din. Respondents No. 1 to 3 legal heirs of Noor-ud-Din filed suit on 25-1-1993 for possession by reception of house.
2. The respondents petitioners filed an application under Order 7 rule 11 read with section 151 CPC for rejection of the plaint on the ground that plaint/suit is hopelessly time-barred and cannot proceed.
The learned trial Court after completing all the legal formalities finally on 26-1-1994 rejected the application under Order 7 rale 11 CPC. The respondents aggrieved by this order filed an appeal before the District Judge which was accepted on 25-1-1997; hence the present revision against the order of the learned Additional District Judge, Lahore.
3. The mortgage was created on 15-12-1922 and the sixty years limitation commuted from this date had expired on 15-12-1982. It is also admitted fact that original mortgagees have further mortgaged the property in question vide registered sale deed on 6-2-1933. The question for determination by this Court is, whether time for instituting a suit will begin from the original mortgage deed dated 15-12- 1922 or from the second mortgage deed executed by the mortgagee on 6-2-1933? The only question of law, therefore, to be examined is the effect of Section 19 of the Limitation Act which is reproduced hereunder:
19. Effect of acknowledgment in writing. (1) Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the lime when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed: but subject to the provisions of the Evidence Act, 1872, oral evidence of its contents shall not be received.
The above Section 19(1) prescribes one condition only that right has been made in writing signed by the party against whom such property or right is claimed. It is pertinent to mention here that in the present case, subsequent mortgage deed was also registered one, therefore, it fulfills the requirement of this section. It is a registered document, therefore, its contents could be proved under the Evidence Act or Qanun-e-Shahadat.
4. The leamed counsel for the petitioner contended that the mortgagee executed second mortgage deed without the consent of original mortgager, therefore, the subsequent mortgagee must come under the fact of original mortgagees. Therefore, time for filing the suit must be considered from the original date of mortgage dated 15-12-1922. The leamed counsel further contended that case of the petitioner is fully covered under the law declared by the Supreme Court as reported in Muhammad Zaman and S others v. Abdul Malik Khan and 7 others (PLD 1991 S.C.
524). The leamed counsel further contended that leamed first Appellate Court did not appreciate - the law' declared by the Supreme Court of Pakistan and the judgment of the trial Court is. Valid and in accordance with the principles laid down by the Supreme Court of Pakistan.
5. The leamed counsel for the respondent contended that the judgment of the leamed First Appellate Court is in accordance with law declared by the Superior Courts in the similar facts and circumstances; relying upon the following judgments:- 'Sammar Gul v. Central Govt, and others '(PLD 1986 SC 35)
'Muhammad Zaman v. Abdul Malik Khan' (PLD SC 524)
'Ahmad v. Sh. Abdullah and others" (1993 CLC 1136)
'Rulia Ram v. Bhatia Mai and others' (AIR 1933 Lah. 33)
'Sadhri Ram v. Dr. Gargi Din and others (AIR 24 Allahabad 458).
6. I have considered the contention of both the leamed counsel for the parties and perused the record and judgments on the point. It is better and appropriate to refer Section 19 of the Limitation Act as mentioned in para 3 of this judgment. The only point for determination is, out of the pleadings and arguments of the parties, whether time for redemption will start from the original mortgage deed dated 15-12-1922 or from the subsequent date of mortgage deed dated 6-2- 1933.
7. It is pertinent to mention here that the suit has become time-barred in case the original date of mortgage deed is taken into consideration and if the second date of mortgage deed is taken into consideration then the suit is within time by virtue of Section 19 of the Limitation Act.
8. The above-mentioned controversy has already been decided by the Supreme Court of Pakistan in 'Samar Gul v. Central Go\t. And others' (PLD 1986 SC 35) and the leamed first Appellate Court rightly relied upon the judgment reported in Ahmad r. Sh. Abdullah and others' (1933 CLC 1136). Rulia Ram v. Bhatia Mai and others' (AIR 1993 Lah. 33). The relevant observation is as follows:- "The reciter in the subsequent mortgage deed to the effect that the property had been mortgaged in favour of the mortgagee and that he was re-mortgaging it amounts to the acknowledgment of the existence of the mortgage at the time.
The judgment cited by the leamed counsel for the petitioner is "Muhammad Zanum v. Abdul Malik Khan" (PLD SC 524). The relevant observation is as follows:- "In case of Zarif Khan and others v. Muhammad and others (PLD 1983 Pesh. 58) acknowledgment on the basis of the entries in the mutation register was directly brought under consideration and dealt with as hereunder:- "In the case in hand, in order to prove acknowledgment giving fresh start to the period of limitation, it is incumbent upon the mortgagors to prove the same within the for comers of the law relied upon. On going through the record of the case and the evidence produced by the parties acknowledgment as a question of fact was never specifically raised nor proved in the trial Court.
The important ingredient for attracting the provisions of section 19 of the Limitation Act that the same must be in w riting and signed by the person making it is totally missing. All the sub- mortgages were created from time to time through mutation referred to above which are not required to be signed or Thumb impressed by the parties to the transaction entered into between the parties and reported to the relevant authority. Keeping in view that above-mentioned mandatory element of acknow ledgment is missing in the present case, I have no hesitation in holding that the defendants appellants have utterly failed to prove a valid acknowledgment of the original mortgage giving fresh start of limitation under section 19 of the Act. The creation of sub- mortgage unless in writing and signed by the mortgagers (original mortgages) and proved in Court of law as a fact does not amount to acknowledgment within the meaning of section 19 of the Limitation Act".
9. In the above-mentioned paragraph it is clearly mentioned that creation of sub-mortgage unless in writing and signed by the mortgagors (original mortgagees) and proved in Court of law as a fact does not amount to acknowledgment within the meaning of Section 19 of the Limitation Act. Lt is now clear that in the present case, second mortgage deed is registered one and proved by the first Appellate Court as a fact, therefore, amounts to acknowledgment within the meaning of Section 19 of the Limitation Act the findings of fact are that by the first Appellate Court cannot be disturbed by this Court while exercising jurisdiction under Section 115 CPC as is held in "Bd. Of Inter.
Edn. v. Khalid Mahmood' (NLR 1985 Civil 114) that: As regards, the findings of the leamed Addl. District Judge on issues Nos. 3 and 4 it may be noticed that in his capacity as Appellate Court, the leamed Additional District Judge possessed the jurisdiction to come to his own conclusion, on the basis of evidence adduced before the trial Court by the parties and resultantly, he could competently reverse the findings of the trial Court on the question of fact inverted in Issues No. 3 and 4. Lt is an established proposition of law thar findings on questions of fact or of law. Howsoever, erroneous the same may be recorded by a Court of competent jurisdiction, cannot be interfered with by the High Court, in exercise of its revisional jurisdiction. Under Section 115, Civil Procedure Code, unless such findings suffer from jurisdictional defect, illegality or material irregularity.
In N.S. Venkatagiri Ayyangar and and her v. The Hindu Religious Endowments Board, Madras (PLD 1949 Privy Council 26), with reference to Section 115 CPC it has been observed bv the Judicial Council: "This section empowers the High Court to satisfy itself upon three mailers; (a) that the order of the subordinate Court is within its jurisdiction: (b) that the case is one in which the Court ought to exercise jurisdiction, and (c) that in exercising jurisdiction, the Court has not acted in legally, that is in breach of some provisions of law, or with material irregularity, that is by committing some error of procedural in the course of the trial which is material in that it may have effected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court on precedent of fact or law".
10. In view of what has been stated above, the present revision petition is dismissed with no order as to its costs.