IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This petition has been filed for leave to appeal against judgment dated 22nd October, 1999 in pursuance whereof Lahore High Court, Lahore allowed Writ Petition instituted by private respondents as a consequence whereof order dated 8th November, 1983 passed by Member Board of Revenue was, declared to be without lawful authority.
2. Precisely stating facts of the case are that on 31st December, 1981 the respondents filed an application before, A.C./Collector under Section 3 of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 with the averments that their predecessor-in-interest mortgaged 87 Kanals and 1 Marla of land. Entering into Khasra Nos. 456 and 457 situated in Mauza Sultan Khel Gharbi, Tehsil lsa Khel, District Mianwali to Himan Dass son of, Kola Ram in the year 1888 against sum of Rs. 32/-. The application, however, was dismissed by the Collector being barred by time vide order dated 10th February, 1982 but the Additional Commissioner on accepting the the order of Assistant Commissioner vide appellate order dated 9th March, 1983, with the observation that period of limitation shall start from 1947 and the application of the appellants for redemption of the land is within time. Petitioners approached the Member, Board of Revenue by filing R.O.A. No. 33 of 1983 which was allowed by means of order dated 8th November, 1983 in pursuance whereof order bf Additional Commissioner dated 9th March, 1983 was set aside. The Member, Board of Revenue, mainly disposed of the appeal of petitioners in their favour for the reason that under Section 4 of the Displaced Persons (Land Settlement) Act, 1958 the property left by non-Muslim owners vested in the Central Government free from all encumbrances-, subject to any claim of the non-Muslim owners which could have been raised through the Custodian of Evacuee Property. The claim for redemption thus could have been made only against the Custodian and not against the refugee allottees or their successors- in-interest, after 93 years of the date on which the mortgage was created. The respondents under the circumstances approached the High Court by filing Writ Petition which was allowed by means of impugned order dated 22nd October, 1999. Relevant para therefrom is reproduced hereinbelow:- - "I have considered the submissions made by the learned counsel for the parties. The learned Additional Commissioner rightly held that with the migration of non-Muslim evacuee the time stopped running in 1947 before the expiry of 60 years. The learned Member, Board of Revenue assumed that the land as such vested in the Central Government which runs counter to the law declared by the Hon'ble Supreme Court and this Court relied upon by the learned counsel. It was only the mortgagee rights which vested in the custodian."
3. Learned counsel''-for the petitioners contended that if the predecessors-in-interest of respondents were owners of the land then notwithstanding the fact whether it had been mortgaged to a non-Muslim (evacuee) but under Article 148 of the Limitation Act, the prescribed period for redemption of mortgaged property would be 60 years from the date when the right to redeem or to recover possession accrued to the mortgagor. Therefore, according to him the conclusion drawn by learned High Court that on the departure of non-Muslim from Pakistan to India in (1947 time shall stop running against the mortgagor.
4. We have heard the learned counsel and have also gone through the judgments reported in the case of Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan and another (PLD 1962 S.C. 284) and Allah Bakhsh and others v. Muhammad Shafi and another (1989 S.C.M.R. 780) as well as Muhammad Shah v. Ghulam Qadir, etc. (PLD 1978 Lahore 71). In our opinion in the instant case questions for consideration would be as under:--
(i) As to ohen right to redeem the property accrued to respondents in accordance with Article 148 of Limitation Act?
(ii) As to whether on the departure of evacuee Himan Dass from Pakistan the time to redeem the property was stopped running in 1947, if so to what effect?
(iii) As to whether impugned judgment has been. Passed keeping in view the law laid down by this Court in PLD 1962 S.C. 284 and t989 S.C.M.R. 780?
Thus to examine the above questions leave to appeal is granted. Meanwhile status quo to be maintained. Appeal is directed to be fixed during this year.