' MUHAMMAD BASHIR JEHANGIRI, J.---The dispute in this case is about 16/102 share of land measuring 26 Kanals and 16 Marlas comprising of Khasra No,483 of 204 situated in village Mafi Shah Wali, Teshil and District Mansehra. Ali Akbar respondent filed a suit against Abdul Khaliq and others for a declaration that he and the pro forma defendants were the owners-mortgagors of the aforesaid land that they were entitled to get it redeemed from defendant No,1 which had not become time-barred mortgaged and, therefore, the judgments of Collector, Mansehra, Additional Commissioner, Hazara and Board of Revenue, N.-W.F.P. Respectively, dated 7-10-1982, 7-8-1984 and 7-11-1987 declaring the right of redemption of the disputed land having been extinguished on account of time-barred mortgage were void and ineffective qua the right of the respondent and the pro forma defendants and are as such liable to cancellation.
2. The defendants had contested the suit primarily on the ground that the mortgage transaction of the suit land between the predecessor-in-interest of the plaintiff-respondent and the predecessor-in-interest of the petitioner stood extinguished due to lapse of time.
3. After contest, the suit was decreed by the learned Civil Judge, Mansehra, on 12-2-1981. Abdul Haq petitioner who claimed to the mortgagee of he land filed an appeal before the learned Additional District Judge, Mansehra. Ali Akbar respondent also filed an appeal against the judgment and decree claiming therein the additional relief of possession of land by redemption. The leaned Additional District Judge dismissed both the appeals on ,1-1-1992.
4. The defendant-petitioner then filed a Civil Revision being Civil revision No,88 of 1992 which also met the same fate and was dismissed by a learned Single Judge of Peshawar High Court, Peshawar, on 12-9-1997.
5. The defendant-petitioner has come up in a petition for leave to appeal against the same to this Court.
6. The facts of this case are that one Zabar Dast Khan mortgaged the disputed land which was then measuring 53 Kanals and 11 Marlas bearing khasra No,184 old corresponding to the present Khasra No,483/204 situated in the revenue estate of village Mari Shah Wali, in favour of Rehamtullah by of Mutation No,197, dated 19-4-1918 for a sum of Rs,100. In due course, however, Abdul Haq petitioner resident of village Hamsherian got the lights of mortgagee while Ali Akbar resident of village Hado Bandi and others became owners/mortgagors. Abdul Haq petitioner in the first round of litigation a suit in the year 1979 claiming a decree therein for declaration that he had prescribed title to the disputed land by time-barred mortgage. It appears that the suit did not bear fruit before the learned Civil Judge, Mansehra, who on 5-2-1980 dismissed it as premature. His appeal against the judgment and the decree of the learned Civil Judge non-suiting him also did not succeed and it was dismissed on 16-5-1981. Within a year or so Ali Akbar etc. Mortgagors moved an application before the Collector Mansehra for restitution/redemption of the suit land which was however, dismissed on 7-10-1982 declaring the mortgagee to have prescribed his title to the suit land on the ground of mortgage having become time-barred. His appeal before the Additional Commissioner and revision before the Board of Revenue were also dismissed respectively on 7-8-1984 and 7-11-1987.
7. Feeling dissatisfied with the judgments of the forums of revenue hierarchy Ali Akbar etc. Filed Suit No,54/1 wherein besides assailing the decisions of the revenue hierarchy, being unlawful and without jurisdiction sought the annulment thereof. The learned Civil Judge, who was seized of the suit, decreed it on 19-2-1991. The appeal filed by Abdul Haq mortgagee was dismissed by a learned Additional District Judge, Mansehra on 11-1-1992. The defendant-mortgagee then challenged the judgments and decrees passed by the learned trial Judge duly affirmed by the First Appellate Court in the High Court filing Civil Revision No,88 of 1992.
8. The learned Single Judge who was seized of the civil revision came to the conclusion that the "decisions of Civil Court, dated 5-2-1980 in Civil Suit No,101/1 upheld by the First Appellate Court on 16-5-1981 in Civil Appeal No,73/13 and not challenged any further, had become final in so far as the question of prescription of title by the mortgagee was concerned". In this context, it was pointed out that the assertion of the defendant-petitioner that the had prescribed title to the land by time- barred mortgage was denied to him it terms unequivocal by a forum which had the exclusive jurisdiction to adjudicate upon the controversy and whose decision had already attained finality.
The learned Single Judge, therefore, concluded that the Revenue Courts were no possessed of jurisdiction to hold otherwise. According to the learned Single Judge, acquisition or otherwise of title by prescription is a pure question of title and any finding given thereon by a Civil Court, having attained finality was ultimate determination of rights between the parties and, therefore, "no Revenue Court, how which so ever in its hierarchy had the authority of ignoring the findings of Civil Court concerning title". The interference by the Collector, the Additional Commissioner and the Board of Revenue was held to the without lawful authority and having acted without jurisdiction, therefore, their order, were rightly annulled by the Civil Courts. It was, thus, concluded that "the impugned judgments of the Civil Courts, therefore, warranted no interference".
9. The matter should have ordinarily concluded at this juncture. But the learned Single Judge in the High Court touched upon in his well-reasoned judgment, the implication of mortgages of the immovable property. In this context, the learned Single Judge has made pointed reference to the law laid own.By this Court in Maqbool Ahmed v. The Government of Pakistan (1991 SCM R 2063) which furnishes guidelines for interpretation of the provisions of law regulating the law of adverse possession over the immovable property. The principle enunciated by the learned Single Judge in this context in para. 9 of the judgment is reproduced hereunder:- "Mortgage, the subsistence thereof and prescription of title by mortgagee, are the conditions that militate against the right of a rightful owner, therefore, the Courts of law which also are the Courts of equity, should construe various transactions concerning mortgage in such a liberal way that the right of rightful owner survives and the one who has enjoyed the possession and produce for nearly sixty years and has recovered the amount manifold, should not be allowed to get away with the land as well."
10. The learned Judge in Chambers while reverting to the original mortgage in the instant case observed that it was created through Mutation No,197, dated 19-4-1918; that when the "matter came before the Courts of judicial hierarchy four times and every time it was held that through Mutation No,822 of 4-121944 the rights of mortgagee were purchased and through Mutations Nos.823 and 823/1 of 11-12-1944 it was redeemed and recreated and subsequently through Mutations Nos. 13 and 14 attested on 7-2-1948, a novation of contract had taken place and a fresh period of limitation had started, thereby rendering the prescriptive claim as premature". The learned Single Judge was, therefore, of the considered view that Abdul Haq petitioner had for the first time C purchased the mortgagee rights through Mutation No,822 attested on 1-12-1944. It was redeemed by means of Mutation No,823, dated 11-2-1944 "but this mutation though entered of "Fak Tekmeeli" and additional mortgaged charge was altered yet the learned Single Judge declined to treat it merely as of "Fak-eTakmeeli" because new mortgagee vide mutation No,823/1 had been created by bringing in two other persons as mortgagees in addition to Abdul Haq petitioner. The learned Judge, therefore, termed this transaction as a novation of the contract giving fresh start of limitation. Then Mutation No,13, dated 7-2-1948 was referred to by virtue whereof the mortgage was redeemed from all the three persons and once again it was mortgaged to Abdul Haq petitioner with the increase of charge as well. The learned Single Judge interpreted this transaction as a novation of contract because in addition to additional charge, the old mortgagees including Abdul Haq petitioner, were ousted and thereafter, new mortgage was created in favour of the petitioner.
The learned Single Judge then analysed in detail the implication of the entries of daily diary No,381, dated 12-4-1918 where under original Mortgage No,197, Copy Exh. P.W.1/11 was sanctioned on 19-4- 1918 and held as under:-- "As mentioned earlier, the mortgage in hand is created and continues throughout under the conditions that squarely fall within the parameter contemplated by subsection (2) of section 20 of the Limitation Act, and hence amounts to acknowledgement under section 20(1) of the Limitation Act; which acknowledgement is repeated with every crop every year, if not twice a year. Thus, with the existing circumstances, no period of limitation would run against the mortgagor at all beyond one year. The property can be redeemed to any stage without the mischief of the law of Limitation barring redemption after the passage of sixty years."
11. On the parity of reasoning aforesaid, the learned Single Judge held the view that when the mortgagee is in possession of the mortgaged property and in receipt of the usufruct, such receipts are treated as payments to the mortgagee for the purpose of limitation regardless of what the intention of the party receiving the produce may be or might have been. Subsection (2) of section 20 of the Limitation Act, was held to have not "expressly referred to the intention of such party".
Particular insertion of subsection (2) of section 20 and the specific words thereof were construed to render it altogether self-contained and even independent of the proviso preceding it concerning handwriting or signature of the persons making acknowledgement. Therefore, the learned Single Judge concluded that simple possession of mortgagee and the receipt of rent or produce by him are sufficient ingredients to constitute absolute acknowledgement.
12. In these circumstances, the mortgage giving rise to this petition was held to have not become time-barred and was, therefore, rightly ordered to be redeemed, and thus, the revision petition was dismissed with costs.
13. Mr. Nazir Ahmad Lughmani, learned Advocate Supreme Court, in support of this petition, contended, firstly, that neither section 20 of the Limitation Act (No,IX of 1908) nor the law enunciated in Maqbool Ahmed v. The Government of Pakistan (PLD 1966 SC 267) could be invoked by the learned Judge in Chambers of the High Court, secondly, that the learned First Appellate Court had not affirmed the findings of the learned trial Judge who had also granted the relief of possession of the land by redemption which decree was only executable. The learned counsel took exception to the impugned order and urged that the learned Single Judge of the High Court was not justified to have held that "it was rightly ordered to be redeemed.
14. In support of the first contention that section 20 of the Limitation Act could not be invoked by the learned Single Judge, Mr. Nazir Ahmed Lughmani, learned Advocate Supreme Court, has placed reliance on Muhammad Akbar Khan v. Mst. Motai and others (PLD 1947 Privy Council 322) The ratio in the case of Muhammad Akbar Khan (supra) is that section 20 of the Limitation Act in terms refers to the payment of interest on a debt or legacy and makes receipt of the rent or produce of the rent by a mortgagee in possession equivalent to a payment of interest, and a fresh period of limitation has to be computed from the time when the payment was made. It was, however, held to clearly mean a period of limitation for payment of the debt or legacy and no reference could be made to the section for the rights of redemption. The ratio deducible from the case of Muhammad Akbar Khan (supra) appears to have not been followed in the case of Full Bench case of Maqbool Ahmed (supra) by this Court. It appears that section 20 has been construed by the learned Single Judge in the case in hand and appears to be in accord with the genesis of the judgment in Maqbool Ahmed's case (supra). We also see no reason to disagree with the construction put on section 20 of the Limitation Act by the learned Single Judge. The interpretation put by the learned Single Judge on section 20 appears to be clearly in accord with the construction put on section 20 of the Limitation Act in the case of Maqbool Ahmad (supra) and, therefore, the law laid down by the Privy Council in the case of Muhammad Akbar Khan (supra) that section 20 of the Limitation Act applies only to extend time for recovery of mortgage money but would not apply to extend time for redemption of mortgage is no more a valid law.
15. We have ourselves perused mortgage Mutation No,197 attested on 19-4-1918, Mutations Nos. 822, dated 1-12-1944, 823 and 823/1, dated 11-12-1944 and are in agreement with the conclusions drawn by the learned Single Judge that the purchase of mortgagee rights by the petitioner by means of Mutation No,822 sanctioned on 1-12-1944 was redeemed through Mutation No,823 attested on 11-12- 1944 notwithstanding its implication as "Fak Tekmeeli" in terms of Nazeef v. Abdul Ghaffar and others (PLD 1966 SC 267) merely because additional mortgage amount was charged. However, it was rightly not treated that of "Fak Tekmeeli" because new mortgage transaction was attested by Mutation No,823/1 whereby two other persons were added as mortgagees alongwith Abdul Haq petitioner. Likewise a similar change in the number of parties and the area involved was brought about by Mutation No,13 attested on 7-2-1948 whereby the mortgage was redeemed from all the three mortgagees and once again it was re-mortgaged to Abdul Haq petitioner with the increase of mortgage charge as well. We are in complete agreement with the conclusions arrived at by the learned Single Judge that "there was no reason as to why this also should not be interpreted as novation of contract because in addition to additional charge, the old mortgagee including Abdul Haq petitioner were ousted and thereafter, a new mortgage was created in their favour". Looked at from whatever angle, the point raised by the learned counsel "which even otherwise has no support from the record" cannot help the petitioner in any manner and will not warrant any change in the order impugned before us. The point that the learned High Court has transgressed in granting relief for redemption in paragraph 17 is again of no legal consequence. The point does not seem to have been taken in this form before the learned Single Judge of the High Court and, therefore, it cannot be allowed to be urged for the first time before us,