MUHAMMAD YUNUS SURAKHVI, J.---This appeal by way of leave of the Court, is directed against the judgment and decree passed by the High Court on 25-11-1998, whereby after accepting the appeal filed by Muhammad Sadiq, respondent No. l herein, the judgments and decrees passed by the District Judge and Additional Sub-Judge Mirpur were set aside and the case was remanded to the trial Court for hearing it afresh after recording the evidence of both the parties on an additional issue which was framed by the High Court.
2. The necessary facts of the case are that land measuring 6 Kanals, 3 Marlas, comprising Survey Nos.67 and 72, in village Mandh, Tehsil Mirpur, was admittedly mortgaged by one Noor Ahmed, now represented by respondents Muhammad Sadiq and others, jointly to Imam Din, father of appellant No. 1, and Choor, father of pro forma-respondents Bashir Ahmed and others, in Dogra regime. A declaratory suit was filed on 12-2-1991, by respondent Muhammad Sadiq seeking permanent injunction restraining the defendants, the appellants and pro forma-respondents from interfering in possession of plaintiff over the suit land for the stated reason that the suit land was redeemed in the year 1955 and since then had all alongwith been possession of plaintiff. Boota and others, the appellants herein, as well as the pro forma-respondents repudiated the claim of redemption in their written statement and also raised inter alia the plea that the suit was barred by time. The suit was dismissed by the trial Court on 16-1-1995, for want of proof and also on the ground of being barred by limitation. The appeal was filed but the same was dismissed by the District Judge Mirpur.
However, the High Court accepted the second appeal filed by respondents on 25-11-1998. The additional issue:-- "Whether the plaintiff as well as pro forma-respondent No.5 have been in possession of the suit land after getting it redeemed? O. P. P."
3. Against the aforesaid judgment and decree of the High Court respondents Boota and Gulzar filed a petition for leave to appeal which was granted vide the order of this Court, dated 21-4-1999.
4. On 23-11-1999, when the case was placed before us for hearing, we in the first instance felt advised to hear both the learned counsel for the parties on the point as to whether there was any necessity of framing additional issue by the High Court in' presence of Issues Nos. l and 2 already tried by the trial Court. Thus, on 25-11-1999, by the order of this Court, it was observed that there was no necessity of framing an additional issue as has been done by the High Court. It was also observed by this Court vide the order, dated 25-11-1999; that after deciding Issue No.1 against the plaintiff, there was no necessity of going into the question of possession because the redemption in relation to the mortgage with possession has no other meaning than taking back possession after payment of mortgage money. Since Issues Nos.1 and 2 were decided against' the plaintiff-- respondents by the trial Court as well as the first appellate Court, therefore, these issues being linked with the question of possession were to be proved by the plaintiff-respondents but they, according to the trial Court and the District Judge, failed to prove them. Thus, the learned counsel for the parties were directed to argue the case on merits. We also formed the view that normally the case should have been remanded to the High Court for decision on merits but we observed that remanding the case to the High Court will not be in the interest of justice because considerable time would be consumed in the High Court. Therefore, we decided to examine the merits of the case ourselves.
5. Ch. Muhammad Anwar, the learned counsel for respondents Nos.1 and 2, vehemently urged that the suit land was admittedly mortgaged by one Noor Ahmed, now represented by Muhammad Sadiq and others, jointly to Imam Din, father of appellant No.1, and Choor, father of pro forma-- respondents Bashir Ahmed and others, in Dogra regime. According to the learned counsel for respondents the land was redeemed in the year 1955 and in pursuance thereof plaintiff- respondent Muhammad Sadiq obtained the possession of the suit land. H6wever, the entries of mortgage in the Revenue Record in Jamabandi 1980-81 were ineffective as against the rights of the plaintiff. On the other hand the claim of defendants is that the land stood mortgaged for more than 60 years, as such the rights of true owners had extinguished. The learned counsel for respondents further submitted that both the Courts below, i.e. The trial Court and the District Court committed an error in observing that from the record it was not established that the land was redeemed and the suit filed by the plaintiff-respondents was beyond the period of limitation. The learned counsel contended that in the Revenue Record admittedly from 1999 Bk. Uptill now the land in dispute is shown in possession of mortgagors. Therefore, it is established beyond any shadow of doubt that the land was got redeemed by the plaintiff-respondents.
6. Controverting the arguments raised by the learned counsel for the respondents, Raja Muhammad Siddique Khan, the learned counsel for the appellants, submitted that the trial Court as well as the District Judge rightly reached the conclusion that there was no material on record substantiating the redemption of the suit land. On the other hand a period of more than 60 years had elapsed when the suit was filed by the plaintiff-respondents. Thus4' the suit filed by plaintiff- respondents was rightly dismissed by the trial Court and the judgment and decree of the trial Court was rightly upheld by the District Judge. The learned counsel submitted that the High Court instead of deciding the case on merits framed an additional issue for which there was no justification as the additional issue was closely linked with Issues Nos. 1 and 2 decided against the plaintiff-respondents.
7. We have given our due consideration to the arguments raised at the Bar and perused the relevant record. The plaintiff in support of his case got himself examined and produced documentary evidence in the shape of Khasra Girdawari Exh.P.A. For the years 1980 to 1984, Exh.P.B.
Jamabandi of the year 1968-69, Exh.P.C. Jamabandi of year 1976-77, Exh.P.D. Jamabandi of year 1980-81 and Khasra Girdawaries Exhs.P.E. And P.F., whereas defendants examined Muhammad Sadiq, son of Saif A.I, and Muhammad Bashir a their witnesses and also not recorded the statement of Muhammad Boota, the attorney of defendants. Apart from the oral evidence the defendants produced documentary evidence Exh.D.A., Jamabandi of year 1999-2000 Bk, Exh.D:C. Jamabandi of year 1976-77, Exh.D.F. Misl-e--Haqiat of year 1991-92, Exh.D.E. a copy of Mutation No. 101, Exhs.D.G.3 and D.G.4 Khasra Girdawari of years 1990 to 1993, Exh.D.H.Khasra Girdawari of 1980 to 1984.
8. The trial Court vide its order, dated 16-1-1995, dismissed the suit filed by Muhammad Sadiq, respondent herein, on the ground that the plaintiff-respondent could not prove that the land in dispute was redeemed in the year 1955. Thus, Issues Nos. l and 2 were decided against him.
However, on issue No.4, it was observed by the trial Court that the land in dispute stood mortgaged for a period of more than 60 years, therefore, the rights of the original owners had extinguished. The sane finding was upheld by the District Judge. However, as said earlier, the High Court did not advert to the merit of the case and it vide the impugned judgment remanded the case after framing an additional issue with regard 'to which we have already observed that there was no necessity of framing the said issue.
9. We have also appraised the evidence brought on record by the parties. It has concurrently been decided by the trial Court as well as the District Judge that the plaintiff-respondents filed to prove that the land in dispute was redeemed in the year 1955. In our view the, statement of plaintiff respondent Muhammad Sadiq inspires no confidence as according to him in his examination-in- chief he stated that his father had got the land redeemed and he at the relevant time was out of country. He also stated that, the land was mortgaged by his father during the Dogra regime. In the cross-examination plaintiff twisted his first stand and deposed that the land was got redeemed by the father of plaintiff alongwith him. However, there is a categorical statement on behalf of plaintiff that the land was mortgaged to Imam Din by his father. It is nowhere stated by the plaintiff according to-his plaint that the land in dispute was redeemed in 1955. The plaintiff is also silent as to what amount for redemption of land was paid to the mortgagees. Needless to say that in the plaint it has been alleged that the land was mortgaged to Imam Din and Choor jointly. The plaintiff has further stated that at the time of redemption of the land he, his father and one Bagga were present but Bagga was not produced by the plaintiff in support of his claim.
10. Another aspect of the matter is that the whole claim of plaintiff rests on the plea that the land was redeemed in the year 1955 but he failed to point out any positive date in the plaint. The defendants in support of their claim in rebuttal have placed on record a copy of Mutation No. 101, Exh.D.E. On he basis of which the mutation of estate of Choor in favour of his heirs Bashir Ahmed and others was attested in July 14, 1952. (Though the year of attestation of the mutation appears to be through inadvertence or clerical mistake as 1951). The fact remains that Patwari reported the death of deceased Choor on 27th June, 1952, and the mutation of his estate was sanctioned on 14- 7-1952. The learned counsel for the respondents, Ch. Muhammad Anwar, contended that this document appears to be a fake one but from the side of plaintiff we do not find any evidence in this regard, therefore, there seems to be no reasons to disbelieve the said mutation. When Choor, one of the mortgagees, died in 1952 or for that matter in 1951, then how the mortgage money was paid to him in the year 1955. Thus, in our view the findings recorded by the trial Court and upheld by the District Judge on Issues Nos. l and 2 appear to be correct; therefore, the same do not require and indulgence.
11. On Issue No.4 the trial Court as well as the first appellate Court observed that the land in dispute was mortgaged for more than 60 years at the time of institution of suit, therefore, the rights of the true owners had extinguished and the defendant-appellants have become its owners. After the perusal of documentary as well as the oral evidence we have reached the conclusion that the findings on the said issue are unfounded. In Jamabandi 1999-2000 Bk., relied upon by both the parties, there is no doubt that the land in dispute is shown in possession of mortgagees. Similarly in Jamabandi, 1980-81 the land in dispute is shown in possession of Sain as tenant-at-will on behalf of mortgagees. This show that the land remained in possession of mortgagees uptill 1981. However, the latest Khasra Girdawaries show that the plaintiff-respondent Muhammad Sadiq has obtained the possession of the suit land somehow or the other. The trial Court fell in error in observing that defendant-appellants tried to obtain the copy of misl-e-Haqiat pertaining to year 1986-87, Exh.D.G., on which a report was made that the record of said period had been destroyed. Thus, it was observed by the trial Court as well as the first appellate Court that defendant-appellants have tried their best to prove that the land in dispute was mortgaged even before 1986-87 Bk. The said report Exh.D.G. Was not admissible in evidence and the same should not have been relied upon by the trial Court as well as the first appellate Court, as its author was not produced by the defendants.
Similarly the findings that the appellant-defendants tried their best to prove the fact that the land stood mortgaged even before 1986-87 Bk, cannot be a substitute for the proof itself. Therefore, the findings recorded by the trial Court and the first appellate Court on Issue No.4 are set aside and it is held that the rights of plaintiff, as one of the owners of the suit land, have not extinguished. This question is open and can be decided in a fresh suit.
12. There is yet another objection on behalf of Raja Muhammad Siddique Khan, the learned counsel for the appellants, that plaintiff respondent Muhammad Sadiq through a declaratory suit has sought a declaration in his favour and in favour of pro forma-respondent Muhammad Fazil, whereas the other co-sharers have not been impleaded as a party. It means that the plaintiff wanted to deprive the left out co-sharers from the ownership of the suit land if the suit had been decreed. This is not allowed by law. Left out co-sharers were necessary parties. Without them the suit could not have been decreed for this defect. This ground itself is sufficient for dismissal of the suit.
13. In the light of what has been stated above, accepting the appeal, set aside the impugned judgment and decree passed by the High Court and those of the District Judge and the trial Court.
In the circumstances of the case, we make no order as to costs so far as this Court is concerned.