' MAULVI ANWARUL HAQ, J.---The case has a bit chequered history. According to the contents of the writ petition Khuda Bakhsh etc. The predecessors-ininterest of the petitioners mortgaged land measuring 276 Kanals situate in village Thatti Sameeja, Tehsil Lodhran, District Multan for a sum of Rs,2,200 in favour of Arrora Mal and others (evacuees) vide mutation No,21 attested on 14-12-1920.
On 30-9-1963, the petitioners filed an application for redemption of the mortgage and restitution of the property. This application was obviously made under the provisions of the West Pakistan Redemption and Restitution of Mortgaged Act, 1964. The application wasfiled before the Assistant Commissioner/Collector, Lodhran. The said Officer conducted some inquiry. The Special Qanungo vide report, dated 4-10-1966 (Annexure-A/1 to the writ petition) reported that the land was mortgaged in the manner stated by the petitioners. This Special Qanungo also made a statement in Court on 4-2-1967 (Annexure-A/2) to the effect that the land measuring 268 Kanals, 13 Marlas was so mortgaged for the first time on 14-12-1920. The Collector, however, with reference to memo.
No,6883-59/7042- R(P), dated 8-12-1959 and 1980-60/148060/1480-R(P), dated 22-4-1959 as also 'memo. No,4135/HC(R), dated 15-7-1959 -proceeded to dismiss the application on the ground that the land had since been mutated in favour of the Central Government in the levenue Records. This order was passed on 1-6:1970. The petitioners filed an appeal which came up before the Additional Commissioner (Revenue), Multan Division. This Officer through an absolutely unintelligible order, dated 17-7-1970, proceeded to remand the case to the Deputy Rehabilitation Commissioner, Multan for disposal as Deputy Custodian. Thereafter, the petitioners applied to the Collector, Lodhran for permission to deposit the mortgage money of Rs,2,200which was allowed on 3-1-1973 (Annexure-C) and money was so deposited vide challan, dated 4-1-1973. Credit certificate issued by the Sub Treasury Officer, Lodhran is Annexure-C/2. The same official, however, in his capacity as D.S.C.(L) took up the, matter again and this time dismissed the application for redemption holding it to be barred by time vide order, dated 19-12-1973. This order was passed on the statement of Khushi Muhammad, Special Qanungo who stated that he has not been able to trace the original mutation of mortgage but according to the entries in Jamabandi for the year 1887-88 it appears that one Tahir son of Manji had mortgaged an area of 149 Kanals, 1 Marla for Rs,154 in favour of Bhowani Mal Ranjha, Ganeshia, Addu sons of Dewa Mal and that through mutation No,104 the said land of Tahir was mutated by way of inheritance in favour of Muhammad son of Eisa and Haji Sahanara son of Tahir. According to this statement in the Jamabandi for the year 1907-08 the mortgagee rights were sold in favour of Mangla Mal son of Matwala Mal on 9-9-1904.
2. Against the said order, dated 19-12-1973 the petitioners preferred an appeal. Before the Additional Settlement Commissioner (L), Multan who proceeded to dismiss the appeal as not competent vide order, dated 6-6-1975 (Annexure-F). The petitioners then on 30-8-1975 preferred a petition before the Board of Revenue, Punjab for a declaration that the land stood redeemed on account of deposit of the mortgaged money as aforesaid. Thereafter, on 9-9-1975 Revision Petition No, 3 of 1975 was filed under section 43 of the Administration of Evacuee Property Act, 1957. The learned Custodian vide order, dated 28-2-1990 declared that he has no jurisdiction and as such dismissed the said petition. It was, thereafter, that the petitioners approached this Court by filing the present writ petition.
3. Mr. Sardar Shah Bokhari, learned counsel for the petitioners argues that the application had been filed within time and the Collector acted without lawful authority in refusing to exercise his jurisdiction and dismissing the application on a misconstruction of legal provisions. Ch.Abdul Ghani and Mirza Akbar Baig, Advocates for the respondents argued that as per the statement of Khushi Muhammad, Special Qanungo recorded by the Deputy Settlement Commissioner (L)
(AnnexureD/1), the application was barred by time.
4. I have gone through the copies of the documents available on record as Annexures to the writ petition. Respondent No,5 also filed a written statement. I find that although the factum of mortgage in the year 1920 is denied but the respondents have not come out with any other date on which the mortgage had been made. According to the excerpt prepared by the Special Qanungo on 4-10-1966 (Annexure-A/1) it was found that the land was mortgaged on 4-12-1920. Similar is the position according to his statement recorded in Court (AnnexureA/2). A bare look on the statement of Special Qanungo recorded by the Collector (Annexure-D/1) would show that the same is not relatable to the land in question.
5. By now it is well-settled and it was held as far back as in the year 1962 by the Supreme Court in the case of Muhammad Khan v. Chief Settlement and aehabilitation Commissioner (PLD 1962 SC 284), while considering the effect of Evacuee Laws and section 4 of the Displaced Persons (Land Settlement) Act, 1958 on the rights of Muslim Pakistani Citizens in respect of property subject to a mortgage that a notification under the said section in no way destroy the rights of non-evacuees in the land in which the evacuees had some rights under mortgage. In the present case, it is an admitted position that the land was owned by Muslims who later on became Pakistani citizens. It is also the admitted position that the land was mortgaged with the evacuees. Thus, the Pakistani Muslim Citizens i,e, the petitioners or their predecessor-in-interest are vested with title in the land in question and have an equity of redemption. The evacuee interest only comprises the mortgages rights. It is a matter of record that under the orders of the Collector the mortgage money stands deposited.
6. The letters/memos. Referred to in the order, dated 1-6-1970 of Collector, Lodhran also came up for consideration before the Supreme Court in the case of Samar Gul v. Central Government and others (PLD 1986 SC 35). After reproducing the letter, dated 22-4-1960 at pages 39 and 40 of the report it was observed:- "It is, therefore, clear that the basis for claiming full ownership rights in the land in favour of the Government was that the period of limitation for suits for redemption as provided in Article148 of the Limitation Act had expired with the result that the equity of redemption stood extinguished by virtue of section 28 of the Limitation Act."
In the present case the mortgage had been effected on 14-12-1920. The prescribed period under Article 148 i,e,, 60 years was to expire on 19-12-1986. The application was filed on 30-9-1963 for the redemption of the land. Thus, by no stretch of imagination could it be held that this was a case where the period for limitation had expired and the land vested in the Central Government under section 28 of the Limitation Act.
7. In the aforesaid case of Samar Gul letter, dated 8-12-1959 (relied upon by the Collector in the order, dated 1-6-1970) was also considered. It was reproduced in para.7 of the report at page 39 and it was observed: "It may be noticed that in case of failure on the part of the mortgagors to redeem the mortgage after the issue of notice as instructed in the aforesaid memo. Only 'the evacuees right in the properties shall be auctioned'. Clearly, therefore, the Government was not claiming any right beyond the mortgage rights in respect of such mortgage properties in favour of the evacuee."
' The mutation relied upon by the Collector in the order, dated 1-6-1970 (Annexure-A to the writ petition), has been sanctioned pursuant to Letter No,SRO-1023-K, dated 1-8-1960. A bare perusal of the mutation would show that the names of the non-evacuees though shown in column 3 i,e,, ownership column, yet they were mentioned as mortgagees. The Central Government was substituted for them and this leads to the only conclusion that the Central Government came to acquire mortgagee rights as a result of the said mutation No,923 so attested in favour of the Central Government. The said letterdated 1-8-1960 and the matter of mutation attested in favour of the Central Government showing it as a full owner of the land also came under discussion in the said case of Samar Gull and again it was held that the sole basis for a claim to full ownership rights in the land in favour of Government was the expiry of period of limitation for redemption of land. I have already found above that the limitation had not expired when the application was filed. The mutation relied upon by the learned Collector in favour of the Central Government was only in respect of the mortgagee rights in favour of the Government and it were these rights which were later transferred to the private respondents.
8. For whatever has been stated above I find that the various Revenue, Settlement and Custodian Authorities have misdirected themselves as well as the petitioners who were made to go from pillar to post for their rights. Consequently, the order, dated 1-6-1970 of Collector, Lodhran passed in case No, 103 on an application, dated 30-6-1963 of the petitioners for restitution/redemption of land and all proceedings and orders, thereafter, are declared to be void and without lawful authority. This writ petition is allowed. The result would be that the application, dated 30-6-1963 filed by the petitioners before the Collector, Lodhran under the West Pakistan Redemption and Restitution of Mortgage Lands Act, 1964 shall be deemed to be pending before the Collector Lodhran who shall proceed to decide the same in accordance with law, in the light of the above observation. No order as to costs. 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.