Baidullah Jan one of the petitioners herein instituted a suit in the Court of learned Civil Judge for declaration to the effect that he alongwith pro forma-defendants being mortgagees of the property in dispute for over 60 years have perfected their title by prescription and that the title of the defendants, respondents herein stands extinguished after the expiration of the aforesaid period.
2. The suit was dismissed vide judgment and decree dated 6-2-1996 and appeal thereagainst also met the same fate vide judgment dated 13-12-1999, hence this petition.
2-A. The learned counsel for the petitioners contended that though the suit of the plaintiffs- petitioners could not have been decreed against the contesting respondent but the same was capable of being decreed against the respondents who were proceeded against ex pane by the trial Court vide order dated 13-3-1986 because the matter as against the said persons was a transaction passed and closed. The learned counsel to add vigor to his submissions placed reliance on the case of Taj Din and 8 others v. Karim Bakhsh and 11 others (2000 SCM R 1463).
3. On the other hand the learned counsel for the respondents contended that the suit of the plaintiff could not have been decreed after 13-8-1991 the day after which section 28 of the Limitation Act ceased to have effect. The learned counsel by referring to section 6(1) and 7(1)(3)(4)(5) of the Punjab Alienation of Lands Act, 1900, which was also extended to the N.-W.F.P. Contended that mortgage created in favour of the petitioner being usufructory was self-redeeming in nature and the charge on the property stood satisfied by the enjoyment of the usufructs arising therefrom. By the mortgagee, therefore, the question of perfecting title by prescription does not arise. The learned counsel by referring to the case of Abdul Haq v. Ali Akbar 1998 CLC 129 and the judgment of the Hon'ble Supreme Court rendered in the same case on appeal 1999 SCM R 2531 contended that where a mortgagee is in possession of the mortgaged land and is also in receipt of usufructs, such receipt would be counted towards the payment of the mortgage money to him for the purpose of limitation regardless of the intention of the mortgagee while receiving the same.
4. I have carefully considered the arguments of the learned counsel for the parties and perused the record and the judgments so produced by them.
5. The questions whether after the deletion of section 28 of the Limitation Act, a suit purported to have been instituted under section 60 of the Transfer of Property Act can be decreed and whether a law declared by the Supreme Court to be repugnant to the Injunctions of Islam and ceasing have effect after the date fixed in the decision can be held synonymous with the repeal of a law, require a detailed examination. Before I answer the questions it is worthwhile to reproduce the relevant provisions of the Constitution of the Islamic Republic of Pakistan, 1973 and General Clauses Act which read as under:-- "203-D. Powers, jurisdiction and functions of the Court.---(1)...
(3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam,---
(a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provisions into conformity with the Injunctions of Islam; and
(b) such law or provision shall, to the extent to which it is held to be so repugnant cease to have effect on the day on which the decision of the Court takes effect."
264. Effect of repeal of laws.----Where law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution--
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the law or anything duly done or suffered under the law;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed. Section 6 of the General Clauses Act: Effect of repeal.--Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--
(a) revive anything not in 'force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
6. A perusal of the abovequoted provisions of the Constitution and the General Clauses Act would reveal, that the expression "ceased to have effect" cannot be held synonymous with repeal as is envisioned by Article 264 of the Constitution and section 6 of the General Clauses Act. In the former eventuality even pending cases cannot be dealt with in accordance with the law which has been so held repugnant to the Injunctions of Islam and ceases to have effect after the date mentioned in the decision while in the later eventuality a proceeding pending in a Court or any such right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed are fully protected unless a different intention appears from repealing enactment.
7. Section 28 of the Limitation Act was declared repugnant to the Injunctions of Islam by the Hon'ble Supreme Court in the case of Maqbool Ahmad v. Government of Pakistan (1991 SCM R 2063) and according thereto it ceased to have effect after 31-8-1991. If a suit instituted thereunder was decreed before the target date it was considered a transaction past and closed, but if not then it could not have been decreed thereafter. In the instant case though the suit was instituted on 22-7- 1985 but it never culminated in a decree of the Court and by the time when it matured for being decreed section 28 no more adorned the Statute of Limitation, thus it could not have been and cannot be decreed.
8. Besides this a look at the extracts from the periodical records would unmistakably indicate that the mortgage in question was usufructory mortgage because possession of the property was with mortgagees who had been enjoying the usufructs of the property ever since its creation. Where a mortgagee is in possession of the mortgaged property and is in receipt of the usufructs, the receipt of such usufructs are to be treated as payment to the mortgagee for the purpose of limitation regardless altogether of the intention of the parties receiving such usufructs in view of the provisions contained in section 20 of the Limitation Act which merits reproduction and thus runs as under:-- "20.--(1) Where payment on account of a debt or of interest on a legacy is made, before the expiration of the prescribed period, by the person liable to pay the debt or legacy, or by his duly authorized agent, a fresh period of limitation shall be computed from the time when the payment was made: Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
(2) Where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of subsection (1)."
9. A perusal of the abovequoted provision in general and its subsection (2) in particular would make it quite clear that when the mortgagee is in possession of the mortgaged property and receives the usufructs shall be deemed not only to be a payment of the mortgage money but its acknowledgment as well and thus a fresh period of limitation shall be computed from the time when such payment was made. This legal aspect of the case finds a lucid expression in the judgment rendered in the case of Abdul Haq v. Ali Akbar and 12 others (supra) relevant paragraph whereof reads as under:-- "When mortgagee is in possession of the mortgaged property and inreceipt of the usufruct, such receipts are treated as payments to the mortgagee for purposes of limitation regardless of what the intention of the party receiving the produce may be or might have been. Subsection (2) of section 20 of the Limitation Act does not expressly refer to the intention of such party. Particular insertion of subsection (2) in section 20 and the specific words thereof make it altogether self- contained and even independent of the proviso preceding it concerning handwriting or signature of the person making acknowledgement. Simple possession of mortgagee and the receipt of rent or produce by him are sufficient ingredients to constitute absolute acknowledgement."
10. In appeal against the said judgment of the Hon'ble Judge of the Peshawar High Court their Lordships of the Supreme Court of Pakistan while upholding the same held as under:-- "On the parity of reasoning aforesaid, the learned Single Judge held the view that when the mortgagee is in possession of the mortgaged property and in receipt of the usufruct, such receipts are treated as payments to the mortgagee for the purpose of limitation regardless of what the intention of the party receiving the produce may be or might have been. Subsection (2) of section 20 of the Limitation Act, was held to have not 'expressly referred to the intention of such party'.
Particular insertion of subsection (2) of section 20 and the specific words thereof were construed to render it altogether self-contained and even independent of the proviso preceding it concerning handwriting or signature of the persons making acknowledgement. Therefore, the learned Single Judge concluded that simple possession of mortgagee and the receipt of rent or produce by him are sufficient ingredients to constitute absolute acknowledgement."
11. All the arguments the learned counsel for the petitioner, when considered in the light of the foregoing discussion, are stripped of force particularly when the mortgage in question is usufructuary in view of the definition made in the provisions of Punjab Alienation of Lands Act referred to above and section 58(d) of the Transfer of Property Act. The case of Taj Din and 8 others v. Karim Bakhsh and 11 others (supra) is, therefore, .Distinguishable and has no relevance to the case in hand.
The result of the foregoing discussion is that this revision fails which is accordingly dismissed with no order as to costs.