. SAVED ZAHID HUSSAIN, J. -- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, order dated 1.1.1990 of the learned Member, Board of Revenue, Punjab, has been assailed whereby he dismissed the revision petition filed by the petitioners, upholding and affirming the orders of the lower Courts.
2. Qabool s/o Samo, the predecessor of the petitioners mortgaged land measuring 128 kanals and 17 marlas situated in mauza Jhujianwali, Teh. Kot Addu Distt. Muzaffargarh in favour of Wattoo Ram, Hissa Rani and Jawani Mall. Six mutations were effected for this purpose, the earliest being of 18.2.1895 and the later one of 22.7.1895. The non-Muslim mortgagees migrated to India in 1947 on the eve of independence. The mortgaged land became evacuee and was allotted in the year 1966 to Maqsood and Ghulam Muhammad in satisfaction of their claim. It was sold by the allottee to Ghulam Hussain and Ghulam Abbas for valuable consideration (respondents Nos. 3 and 4).
Ghulam Hussain later gifted his share in favour of his sons respondents Nos. 1 and 2. They are in cultivating possession of the land.
3. On 21.4.1986 the petitioners made an application before the Assistant Commissioner/Collector, Kot Addu Sub-Division, Kot Addu, claiming themselves to be the successors of the mortgagors for redemption of the land. The petition was contested by the respondents and they pleaded that the petition was barred by time. The Assistant Commissioner/Collector took the view that the petition was barred by time, made after the expiry of 60 years period permissible under the law for redemption and dismissed the same on 25.6.1988. The petitioners, thereafter filed appeal which was dismissed by the Addl. Commissioner (Revenue) D.G. Khan on 7.1.1989 maintaining the order of Assistant Commissioner/Collector. Therefore, they filed revision before the Board of Revenue which was also dismissed by a learned Member on 1.1.1990. For arriving at the conclusion that the petition was time-barred, he in addition to the finding recorded by the Assistant Commissioner and Additional Commissioner took note of the repeal of the Evacuee Laws and observed that "after the repeal of the 'Evacuee Laws clock has reverted to the time before the Ist of March, 1947 and hence now the ordinary law will apply". Thus, the application filed in the year 1986 'was found to he time- barred.
4. The learned counsel for the petitioner contends that the view of the respondents that the claim for redemption was time-barred is erroneous in law as according to him the period stopped running against the petitioners with the migration of the mortgagees as a result of partition and coming into force of the Evacuee Laws. It is contended that the right to redeem mortgage was recognised by the Central Government, which stepped into the shoes of evacuee mortgagees, vide instructions issued through memorandum No. 6883-59/7042, dated 8.12.1959, as it constituted acknowledgement in terms of S. 19 of the Limitation Act, and fresh period of limitation was available to the petitioners. He relies upon Muhammad Shafi Vs. Ghulam Qadir etc. (PLD 1978 Lahore 71), Samar Gul Vs. Central Government and others (PLD 1986 SC 35) in support of his contention.
5. As against this the learned counsel for respondents Nos. 1 to 4 contends that when the partition took place in 1947 by that time, about 52 years had already elapsed and thus the period of 60 years available for redemption would have come to an end in the year 1955. He disputes the proposition that the fresh period of limitation would he available to the petitioners and contends that judgments in Muhammad Shqfi's case and Samar Gul's case proceed on their own facts, where acknowledgement was proved on record, whereas in this case the petitioners have not proved any acknowledgement and nothing has been brought on record by the petitioners. He relies on Muhammad Zaman and 8 others Vs. Abdul Malik Khan and 7 others (PLD 1991 SC 524). It is further contended that the petitioners never took steps in pursuance of Memo. Dated 8.12.1959 for the redemption, although the mortgagors were given opportunity by the Central Government for this purpose. That the allotment was made in the year 1966 and the respondents are bona fide purchaser from the allottee. He contends that the repeal of Evacuee Laws took place w.e.f. 1.7.1974 and the petition was tiled in the year 1986.
6. There is no dispute that the mortgagees took place in 1895. In normal course the redemption suit should have been filed within 60 years i.e. Upto the year 1955. The case of the petitioner is that due to migration of the mortgagees, the period of limitation stopped running against them.
7. The claim for fresh start of limitation is based on the memo. Dated 8.12.1959 which was issued by the Chief Settlement and Rehabilitation Commissioner under the Rehabilitation Settlement Scheme and by relying on the judgment of Muhammad Shafi and Samar Gul (supra) which arose out of the proceedings which commenced during the regime of Evacuee Laws. Now the Evacuee Laws stand repealed w.e.f. 1.7.1974. The petition for redemption was tiled for the first time in 1986, by which time the land had been allotted to the refugees in 1966. It vested in the allottee since its allotment. It was never challenged by the petitioners. Admittedly the respondents are in possession of the same ever since allotment/purchase by them. The contention of the learned counsel that the petition was still in limitation despite the repeal of Evacuee Laws is untenable. The fresh period of limitation is claimed by invoking memo. Dated 8.12.1959. The said memo, has lived its life as with the repeal of the law, the same has ceased to be on the statute book. No proceedings were taken by the petitioners during the currency of the said memo. After the same has been repealed alongwith the parent statute i.e. Evacuee Laws, it cannot be pressed into service.
8. The effect of repealing of a statute is to obliterate it from the record of the Parliament as if it had never been passed. It is to be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law: This is the settled rule of common law. It is so stated at page 398 of "Understanding Statutes" by S.M. Zafar, 1st Edition 1997. But to mitigate this rule, the legislature while repealing the Evacuee Laws, being conscious of the settled principle of repeal did provide saving clause, and the proceedings "pending" were saved by virtue of S. 2 (2) of Evacuee Property and Displaced Person Laws (Repeal)
Act, 1975.
9. In Soni Ram Vs. Kanhaya Lal (ILR 35 All. 277 (PC) while considering the question as to whether the suit for redemption was barred by limitation, it was held that an acknowledgement of liability only extends the period of limitation, within which a suit must be brought and does not confer title and is not a 'thing done' within the meaning of S. 6 of the General Clauses Act. By operation of the Evacuee Laws, the running of the period of limitation at the most remained suspended. No right as such accrued to the petitioner, which could survive after repeal of those law. In Messrs Hap Razak Haji Habib Janoo Vs. The Islamic Republic of Pakistan and 2 others (1986 CLC 740), a passage from Crawford on "Statutory Construction" was adopted for the proposition that "an outright repeal will destroy the effectiveness of repealed Act in future and operate to destroy inchoate rights dependent on it".
10. In this case the suit for redemption could have been filed by the year 1955, but for the Evacuee Laws the petitioner could file even thereafter till those laws remained on the statute book. No such action was taken by them during the currency of those laws. The laws stood repealed w.e.f. 1.7.1974 and the exemption from the period of limitation ceased to be operative with the repeal. The petitioner could not thus rest their case by invoking the provisions of a law which stood repealed and ceased to exist, when the action was commenced by them in 1986.
11. In Muhammad Ramzan and others Vs. Member (Rev.) CSC and others (1997 SCMR 1635), the scope of Section 2 (2) of the Act and proceedings pending was considered. No proceedings were pending at the time of repeal of evcuee laws on 1.7.1974 as admitted by the petitioners as the petition for redemption was filed for the first time in the year 1986. The exemption or exclusion for computing of the period of limitation if available, ceased to he so on repeal of Evacuee Laws.
12. As noted above the mortgages took place in the year 1895. Even if the period from 1947 to 1.7.1974 and the date of repeal of Evacuee Laws is excluded the petition filed on 20.4.1986 was clearly time- barred.
13. The conduct of the petitioners in writ petition also assumes importance in the grant of relief. The land was treated as evacuee, it was allotted as such in the year 1966 and was sold by the allottee to the contesting respondents who are ever since in possession of the same. At no stage the petitioner agitated the matter before the appropriate forum. It appears that the filing of the petition, for redemption in the year 1986 was thought when the judgment of the Hon'ble Supreme Court in Samar Gul's case was published, which was a case that arose during the currency of evacuee laws and could not be applied to re-open the matters past and closed.
14. In view of the above, the order of the learned Member, Board of Revenue, dismissing the revision petition of the petitioners is eminently just and legal. The petition has no substance and is dismissed without any order to costs.