MUHAMMAD ARIF, J.~ Leave to appeal is claimed against judgment dated 27.11.1998 passed by a learned Judge in Chambers of the Lahore High Court, Lahore in Writ Petition No. 810 of 1990.
2. The background of the case is that Qabool son of Gamo, the predecessor of the petitioners, mortgaged land measuring 1 28- Kanals and 17 marlas situated in Mauza Jhujianwali, Tehsil Kot Addu, District Muzaffargrah in favour of Watto Ram, Hissa Ram and Jawani Mall. The non-muslim mortgagees migrated to India in 1947 on the eve of partition. The mortgaged land became 'evacuee' and was allotted, in the year 1966, to Maqsood and Ghulam Muhammad sons of Abdus Salam in satisfaction of their claim. The said allottees sold their mortgagee rights in favour or respondents Nos. 3 and 4 Ghulam Abbas, and Ghulam Hussain sons of Jaffar Khan out of whom Ghulam Hussain gifted his share to his minor-sons/respondents Nos. 1 and 2.
3. The petitioners, claiming themselves to be the successors of the mortgagors, filed an application for redemption of the land on 21.4.1986 before the Assistant Commissioner/Collector, Kot Addu who dismissed the same on 25.6.1988 as barred by time in that it was resorted to after the expiry of 60 years period permissible under the law.
4. Petitioners' appeal against order of the learned Collector dated 25.6.1988 was dismissed by the learned Additional Commissioner (Revenue) on 7.1.1989. Same was the fate of the petitioners' Civil Revision Petition (ROR No. 393 of 1989) before the Member (Revenue) Board of Revenue Punjab Lahore vide judgment dated 1.1.1990. The observations of the learned Member (Revenue) Board of Revenue were that:-
(i) the mortgage was created in 1895 ..................................
(ii) 60 years period for redemption expired in 1955 .................
(iii) since the Administration of Evacuee Property Act, 1957, which tantamounts to acknowledgement under Section 19 of the Limitation Act, 1908, came into operation after the expiry of 60 years, therefore, no fresh period of limitation was available to the mortgagors.......................
(iv) even if the period of limitation had stopped running in 1947 was provided by Section 13 of Limitation Act, with the repeal of evacuee laws the position will revert back to March 1947 and the ordinary law will apply ...... and
(v) as mortgage was 52 years old in 1947, only remaining period of 7 years could be claimed and that to expired in 1955, i.e. Before 1957, the time when the acknowledgment was made by the Central Government.
5. The petitioners remained unsuccessful in their Writ Petition No. 810 of 1990 as well, vide the impugned judgment dated 27.11.1998.
6. Ch Mushtaq Ahmed Khan, learned Sr. ASC for the petitioners has vehemently contended that:--
(i) as laid down in Muhammad Shafi Vs. Ghulam Qadir etc (PLD 1978 Lahore 71) on the migration of mortgagees the period of limitation for redemption of mortgage stopped running under Section 13 of the Limitation Act (No. IX of 1 90.8)..........
(ii) in the present case, the limitation stopped running in 1947 i.e. When the mortgage was 52 years old with the result that redemption was not barred by time...........
(iii) petitioners' right to redeem was recognized by the Central Government when it stepped into the shoes of the evacuee-mortgagees vide Memo No. 6883-59/7042 dated 8.12.1959 which operates as an acknowledgement under Section 19 ibid during the subsistence of the mortgage............................ and
(iv) fresh period of limitation of 60 years became available to the petitioners from 8.12.1959 .....
Learned counsel has also referred to Muhammad Hanif through legal heirs and 2 others Vs. Zulfiqar Ali and 56 other (1 996 SCMR 1869), Ghulam Muhammad and others Vs. Custodian, Evacuee Property, Punjab (West Pakistan) Lahore and another (1992 SCMR 120), Samar Gul Vs. Central Government and others (PLD 1986 SC 35) and Muhammad Ramzan and others Vs. Member (Rev/CSS and others (1997 SCM R 1635) in support of his plea that an authoritative pronouncement by this Court will go a long way in finally resolving the controversy involved in this cause for the additional reason that the learned Judge in Cambers was in error of law in ruling that after the promulgation of the Evacuee Laws (Repeal) Act (No. XIV of 1975), effective 1st of July, 1974 and there being no 'pending proceedings at that juncture, the petition for redemption could not be resorted to in the year 1986.
7. Mian Saeedur Rehman Farrukh, learned ASC appearing on behalf of the private respondents/caveators has supported the impugned judgment.
8. After hearing both the learned counsel at this stage, we grant leave to consider the pleas raised on behalf of the petitioners as recounted in para 6 above.
9. The petition is barred by one-day and the unnumbered application seeking condonation of delay filed on 12.2.1999 will be attended to at the time of the hearing of the appeal arising out of this Civil Petition.
10. Interim relief granted in Chambers on 20.7.1999 shall continue in operation, meantime.