' Precise facts of the instant civil revision are that the petitioners filed a suit for declaration and permanent injunction to the effect that they had become full owners of the property in dispute alongwith defendants Nos.14 and 15 in respect of 16 Kanals and 9 Marlas' in Mauza Satarpur Tehsil Pasrur, District Sialkot as the mortgage had become more than 60 years old and the defendants Nos.3 to 13 had extinguished their rights of redemption and sold the disputed land on 2-10-1979 in favour of Muhammad Ashraf and Muhammad Afzal is of no effect. The suit was contested and the following issues were framed on the pleadings of the parties:--
(i) Whether the suit is not maintainable in its present form? OPD
(ii) Whether the suit is filed with mala fide intention? If so, what effect? OPD
(iii) Whether the valuation of the suit for the purposes of court-fee and jurisdiction is incorrect? If so, what is correct valuation? OPD
(iv) Whether the suit is time-barred? OPD
(v) Whether the plaintiffs have become owners in possession bf the suit land being mortgagees for more than sixty years? OPP
(vi) If issue No,5 is proved, whether the sale-deed, dated 2-10-1979 in favour of the defendants Nos.1 and 2 is illegal, void and ineffective on the rights of the plaintiffs? OPP (vi-A) What were the terms of the mortgage? OP Parties.
(i) Relief.
2. The petitioners/plaintiffs produced documentary evidence besides statement of Aman Ullah as P.W.1. The contesting defendants did not produce any evidence and relied upon documentary evidence of the petitioners. Suit was decreed vide judgment and decree, dated 17-11-1987. On appeal the case was remanded by the learned Additional District Judge, Sialkot vide judgment and decree, dated 15-1-1990 by way of framing an additional issue No,6-A.
3. Learned trial Court, again decreed the suit vide judgment and decree, dated 12-2-1992.
Respondents filed an appeal which was accepted by the learned Additional District Judge, Sialkot on 14-6-1994 who accepted the appeal and set aside the impugned judgment and decree and dismissed the suit filed by the petitioners hence, the present revision.
4. Learned counsel for the petitioners argued that it is an admitted fact as the learned appellate Court has also found in para. 7 of the judgment that mortgage was more than 100 years old but it wrongly held that it was usufructory mortgage, relies on Ismail v. S.A.M. Khan and 35 others PLD 1972 Lah.
682. He has further, submitted that mortgagors had extinguished their right as they did not get the redemption of the mortgage within the stipulated period of 60 years, in view of Article 148 if the Limitation Act which was applicable to the facts of this case. Further, submitted that the learned appellate Court while reversing the judgment and decree passed by the learned trial Court has wrongly held that Transfer of Property Act was not applicable in Punjab Province, therefore, no question arises as to the application of section 67 or section 77 of the Transfer of Property Act as no Notification under section 1 has been issued making it applicable to Punjab. Even on the other hand it was the duty of the respondents to show that the notification making section 67 applicable in Punjab was issued in view of section 1 of the Transfer of Property Act, therefore, the judgment of the learned appellate Court suffers from legal infirmity. Even otherwise the learned appellate Court has not given reasons on issues Nos.1 to 4, 5 and 6 according to Order XX, Rule 45, C.P.C. And Order 41, Rule 31, C.P.C. And, therefore, this judgment cannot be considered as issuewise judgment and suffers from material irregularity dismissing the suit filed by the petitioner/plaintiffs. The learned Court has not appreciated this fact that no evidence was produced by the respondents and the evidence produced by the petitioners remained unrebutted, therefore, the learned appellate Court could not dismiss the suit filed by the petitioners/plaintiffs, relies on Abdur Rehman and 12 others v.
Muhammad Akram and 79 others 1999 SCM R 100.
5. Learned counsel for -the respondents on the other hand submitted that section 67 of Transfer of Property Act does not apply to the instant case as the mortgagee was with possession and was a usufructory mortgage. In view of the provisions of section 67-A of the Transfer of Property Act in case of usufructory mortgage, the remedy of suit for foreclosure does not exist. Sections 58 and 67 of the Transfer of Property Act are applicable to the present suit. So far as the application of extension of certain provisions of Transfer of Property Act to Province of Punjab is concerned, where the certain provisions of Transfer of Property Act in view of section 1 is not made applicable to certain Provinces, then principle of equity and good conscious will apply. Relied on Haji Yaqub Khan v. Murree Cantonment Board, Murree 1987 CLC 108, Messrs Habib Bank Ltd., Karachi and others v.
Ghulam Haider and another PLD 1975 Lah. 489, Muhammad Nadeem Butt v. Allied Bank of Pakistan PLD 1985 SC 298 and Dilawar Khan and another v. Sher Afzal Khan and others 1988 CLC 815.
6. I have heard the learned counsel for the parties and carefully perused the record. The suit was filed by Atta Ullah, the predecessor-in-interest of the petitioners. They have submitted that the suit land measuring 16 Kanals and 9 Marlas in Khasras Nos.1 and 2 in village Satarpur, Tehsil Pasrur, was mortgaged with possession in their favour by one Muhammad Bakhst about 100 years ago by the defendants Nos.3 to 13, Muhammad Bakhsh died, his inheritance was mutated in favour of the defendants Nos.3 to 13. As the mortgage had become more than sixty years old, the right of defendants Nos.3 to 13 has extinugished and the subsequent alienation of the suit land in favour of Muhammad Ashraf and Muhammad Afzal defendants Nos.1 and 2 is illegal and of no effects on the right of the plaintiffs/petitioners while the defendants stance in the written statement was that though mortgage did exist but 14/15 years ago, the plaintiffs had handed over the possession of suit land to defendants Nos.3 to 13 and they managed to redeem as they withdrew their right of mortgage and the right of foreclosure of the plaintiffs has extinguished. The learned trial Court decided issues Nos.1 to 6 against the defendant and issue No,6-A as to the terms of mortgage, observed that original mortgage mutation or mortgage-deed is not available from the record room at District Headquarters, Sialkot and there is no default from the side of respondent. Both the parties failed to prove this issue, therefore, the defendants Nos.2 to 12 were not entitled to transfer this land in favour of defendant No,1, defendants Nos.15 to 23 as they could not transfer better title than they themselves had. Before the year 1913-14 under the Limitation Act original mortgagee or his heirs were entitled to redeem but they have not done so more than 60 years have elapsed in the year 1977-78, therefore, the defendants have no right. The learned trial Court vide judgment and decree, dated 12-2-1992 decreed the suit holding that suit property was mortgaged by predecessor-in-interest of the plaintiffs and defendants Nos.13 to 14. On appeal the learned appellate Court held that the appellants had filed an application under Order VII, Rule 11, C.P.C. On 25-10-1987, that suit was based on usufructory mortgage which was still subsisting according to the averments made in the plaint, therefore, the suit was liable to be dismissed. This application was not disposed of but the learned Court proceeded to decree the suit on this issue. On appeal the finding of learned trial Court on issue No,6-A was reversed, the learned appellate Court held no suit for foreclosure could be brought by the plaintiffs after lapse of 60 years, the mortgage in dispute the suit was brought after more than 40 years, it was time-barred, therefore, the learned appellate Court reversed the finding on issues Nos.1 to 6, accepted the appeal, set aside the judgment and decree and dismissed the suit filed by the respondents.
7. In the present case three things are admitted:--
(i) that the mortgage is with possession;
(ii) that it is 100 years old;
(iii) that the terms of mortgage could not be determined by the subordinate Court as the deed of mortgage was not available in the record room.
' Now the question whether the suit for foreclosure is barred under the provisions of sections 67(1) and 77 of the Transfer of Property Act, the answer is that although the terms of the mortgage are not clear but it is a mortgage with possession, therefore, we can consider that this is a usufructory mortgage. But whether the provisions of sections 67 and 77 of the Transfer of Property Act are extended to the Province of Punjab, the answer is in 1975 Punjab Statute p.31 as reproduced below:- - "In exercise of the powers conferred by section I of the Transfer of Property Act, 1882 (Act IV of 1992) and in partial modification of Notification No,183-St, dated the 27th April, 1935, and Notification No,20, dated the 28th May, 1931, issued by the Government of the Punjab and the Government of the former State of Bahawalpur respectively, the Governor of the Punjab is pleased to extend the provisions of sections 54, 59, 107, 118 and 123 of the said Act to the whole of the Province of the Punjab."
' This shows section 54 of the Transfer of Property Act alongwith other sections mentioned hereto are extended to the whole of the Province of Punjab but sections 67 and 77 of the Transfer of Property Act are not existing there. Now the question to be resolved is that if the Transfer of Property Act is not enforced in the Punjab, the principle underlying its provisions are applicable to the Province of Punjab as held in Mool Chand and others v. Ganga Jal and others AIR 1930 Lah. 356 (Full Bench) in a suit for pre-emption or where the Province had to adopt the principle underlying under the Transfer of Property Act as rule of equity as held in Saifullah Khan v. Chaman Lal and others AIR 1936 Pesh. 43, Ismail v. S.A.M. Khan PLD 1972 Lah. 682, Muhammad Naeem Butt v. Allied Bank of Pakistan PLD 1985 SC 298, it is held that Article 148 of the Limitation Act provides time for recovering possession of immovable property mortgaged. It provides .a period of 60 years from the time when the right to redeem or to recover possession accrues to a mortgagor to redeem or recover possession of immovable property from a mortgagee. The right to redeem or to recover possession accrues when mortgage money become due. In a case where there is no specific date mentioned in the terms of the mortgage, the time runs from the date of the mortgage. This judgment further substantiate the Article 148 of the Limitation Act by holding that principle applies equally to suit for possession of mortgage. In this view of the matter petition under section 10 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 will not 'be competent if a mortgagor has allowed the period of limitation prescribed under Article 148 of the Limitation Act to expire. Substantive rights of mortgagor in mortgaged property extinguished and right and title in mortgagee created on principle of extinctive prescription embodied in section 28 substantively resulting in the creation of a right and title in the mortgagee who may be in its possession. In Dilawar Khan and another v. Sher Afzal and others 1988 CLC 815, it was held that provision of Article 148 of Limitation Act provide filing a suit for redemption-within 60 years from the date when right of redemption accrued to the mortgagor and initial burden was upon him to prove subsisting mortgage. Abdur Rehman and 12 others v. Muhammad Akram and 79 others 1999 SCM R 100, where leave to appeal was sought on the ground that in Maqbool Ahmad's case 1991 SCM R 2063 provisions of section 28 of the Limitation Act declared as repugnant to the Injunctions of Islam, therefore, the declaratory decree in favour of the plaintiff could not have been passed and there was no reason why a limitation regarding law of mortgage should be kept intact. It was held that decision by Shariat Appellate Bench in the said case had to take effect from 31st August, 1991 and on that date section 28, Limitation Act, 1908 had ceased to have effect while the suit was instituted on 27-4-1976 and decree was passed on 9-4-1986, therefore, law laid down is not applicable to the fact Anwar Ali and others v. Manzoor Hussain 1996 SCM R 1770, it is held that Transfer of Property Act is not applicable to the Province of Punjab.
8. The time is a great factor to the present case where a mortgage has admittedly became hundred years old and a right has accrued to the other party. 'The principles applying equity, good conscious cannot be applied to each case and especially when a person is non-suited for filing a suit for possession of his property after the expiry of the statutory period of limitation applicable to such suits and in this way destroys his title. The maxim of equity helps the vigilant and not the indolent anyone conscious of his right becoming vigilant to enforce his right before the title is destroyed can seek the aid of natural justice, therefore, the finding of the appellate Court is not an issue wise finding on all issues and its observation that provisions of sections 67 and 77 applies to the Province of Punjab on the basis of equity and good conscious are not sustainable in the present case. Civil Revision is accepted, judgment and decree of the learned appellate Court is set aside. No order as to costs.