The facts giving rise to this petition are that agricultural land measuring 24 Kanals, 9 Marlas Khasra No,519 situate in Revenue Estate of Village Hasoola, Tehsil and District Chakwal, was mortgaged with possession by one Bahadur (predecessor-ininterest of respondents 1 to 3 and 6 to 16) in favour of Ram Chand and Azar Chand, (Non-Muslim Evacuees), through a mortgage deed on. 27-12-1889.
Mutation No,153 was also sanctioned on 27-12-1891. The evacuee mortgagees migrated to India after Partition of the Sub-Continent. Various memorandums were issued by the Custodian and Chief Rehabilitation and Settlement Commissioner invited applications for redemption of the mortgage by payment of the moneys due to the evacuees. Memo. No,6883-59/7045-R(P) dated 8- 12-1959 was issued to this effect. The time for restitution of the mortgagees was extended from time to time. The last such Memo. No,270-M/73/764-R(L) dated 2-3-1973 for extension of time was issued and the time for redemption of mortgage later on was fixed as 31-12-1973. The mortgagers did not apply for the redemption of the mortgage. The land in dispute was transferred to one claimant Mst. Ghafoor Begum, who sold the same to petitioners Nos.2 and 3 and respondent No,5.
In the year 1976. The petitioner No,1 pre-empted the sale and the suit was decreed on 21-12-1980 to the extent of 2/3 share of Mst. Naseem Akhtar, respondent No,5 and Gulzar Hussain, petitioner No,2.
The mutation implementing the decree was sanctioned on 27-2-1981. The successors-in-interest of Bahadur (mortgager) filed an application on 19-5-1981 under section 3 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, for restitution of the mortgaged land.
The Collector, vide his order dated 27-21983, held that the application was time-barred and dismissed the same. On appeal, the learned Additional Commissioners (Revenue) Rawalpindi Division, reversed the finding of the learned Collector on 2-7-1983, on the ground that section 13 of the Limitation Act was applicable and the period of limitation had stopped running against the evacuees. The Appeal No,ROA/71 of 1983, before the learned Member Board of Revenue, failed on 6- 6-1984. The review petition before him met the same fate on 29-4-1985.
2. The only point urged before me by the learned counsel for the petitioners is that section 13 of the Limitation Act, 1908, was not applicable to the instant case. The mortgagees had failed to redeem the land within sixty years, the time prescribed under Article 148 of the Limitation Act. It was stated that the petitioners were bona tide purchasers from the allottee of the land. Learned counsel relied upon 1992 SCM R 120.
3. Conversely, learned counsel for the respondents has defended the impugned order of the learned M.B.R. And relied upon PLD 1971 Lah. 77 and PLD 1978 Lah.
71.
4. Under section 4 of the Displaced Persons (Land Settlement) Act of 1958, the land vested in the Government free from all encumbrances. However. Notification under said section 4, in no way destroys the rights of-non-evacuee in land in which evacuee had any right under mortgage.
Successor-ininterest of the mortgager, therefore, continued to have a right to equity of redemption in such property, notwithstanding acquisition of evacuee's interest therein by Central Government.
The Central Government merely stepped into shoes of evacuee and was vested only with the rights of the mortgage and nothing more. Government of Pakistan issuing a Notification dated 8-12-1959, acknowledged right of redemption of the mortgager. In the instant case, the land was mortgaged on 27-12-1889 and the sixty years expired on 27-12-1949. The notification for restitution of the mortgage was issued on 8-12-1959. Clearly, the acknowledgment was after the period of limitation as, such it was barred by time. No document or copy of register 'haqdaran' particularly entry in the Revenue Record showing mortgager as owner and Central Government as mortgagee constituted acknowledgment in writing has been placed on the record. In these circumstances, it is not possible to hold that the equity of redemption subsisted. The case relied upon by the learned counsel for the petitioner (1992 SCM R 120) is not applicable to the facts of the case as it related to the effect of section 14-A of the Displaced Persons Land Settlement Act, 1958.
5. As far as application of section 13 of the Limitation Act, 1908, is concerned, learned counsel for the respondent relied upon Muhammad Shafi v. Ghulam Qadir, (PLD 1978 Lahore 71). The view taken in this authority is that the period of limitation would stop running against the evacuee mortgagees in view of the provision of section 13 of the Limitation Act. The word "absent" used in section 13 of the Limitation Act includes also a person who had never been present in Pakistan, absence cannot necessarily cannote a previous presence. Reliance can be placed on Meharaja v. Provincial Bank (72 PR 1891), 14 Calcutta 457 and 25 Calcutta 496. In the instant case, the evacuees (Ram Chand and Amar Chand) migrated to India never to return in the wake of the Partition of the Sub- Continent. In these circumstances, it cannot be said that the right of the mortgager i,e,, 'equity of redemption' was effaced by aftlux of time. However, the Honourable Supreme Court in the case "Samar Gul v. Central Government" (PLD 1986 SC 35), has laid down:- "The position, therefore, is that the Central Government merely stepped into the shoes of the evacuee and was vested only with rights of mortgage and nothing more. It may be noted that in case of failure on the part of mortgagor to redeem mortgage after issue of notice, only 'evacuee rights in properties shall be auctioned' ."
' The principal laid down in this case is that the Central Government stepped into the shoes of the evacuee and was vested only with rights of mortgage and nothing more and in case of failure on the part of the mortgagor to redeem mortgage after issue of notice, only "evacuee rights in the properties shall be auctioned". The auction of the evacuee rights would not extinguish the equity of redemption of the mortgagor. It can be argued that since the Government or custodian of evacuee property has stepped into the shoes of the mortgagee, as such the time would not stop running against the evacuee mortgagee.
6. In the case "Poorno Chunder Ghose and others v. Sassoon and others" 25 Cal. 496, it was laid down:-- "Reading the language of section 13---A section be it remembered in a Limitation Act, the provisions of which must be construed strictly, and which, when set up as a defence, must not he extended to cases which are not strictly within the enactment, whilst exceptions or an exemption from its operation are to be construed liberally (see per Lord Cranworth in Roddan v. Marley, (1857) I Deg. & Jones, 1 (23) reading,, I say that section according to the ordinary significance of the words used, I think we are not warranted in holding that the section does not apply to cases where the defendants are, during the period of absence, carrying on business in British India through an authorised agent."
Applying the same analogy, I would hold that the Government or the custodian was not the successor-in-interest and time against the evacuee mortgagees was suspended on their migration to India. I find no illegality in the order of the learned Member, Board of Revenue, and the same is upheld.
7. For what has been stated above, this petition has no merit and is dismissed with no order as to costs.