On 1-6-1976 the petitioner filed a suit against the respondent. In the plaint, it was stated that the suit-land comprising occupancy rights was mortgaged by Ganga Ram in favour of predecessor- in-interest of the petitioner. The land is comprised in Khasra No,1040 min (18 Kanal, 8 Marlas) and 1040 min (18 Kanals 8 Marlas); that the respondents Nos, 1 to 4 claimed to be transfers of half of suit-land and are trying to interfere in their possession. This transfer is stated to be illegal on the ground that the land being mortgaged for more than one hundred years without redemption, the equity of redemption stood extinguished and, as such, no evacuee interest was there to be transferred to the said respondents; That even otherwise respondents Nos, 1 to 4 have no right for allotment. The suit was contested by respondents Nos, 1 to 4 who stated that the land was allotted to them as temporary allottee lawfully. Issues were framed. Evidence of the parties was recorded.
Learned trial Court dismissed the suit vide judgment and decree dated 7-3-1987 while a first appeal was dismissed by learned Additional District Judge, Gujrat on 18-2-1991.
2. Learned counsel for the petitioner contends that it stood proved on record that the land was mortgaged in the year 1884 and, as such, a period of 60 years had expired before the prescribed date of 1-3-1947 and, as such, no Evacuee interest was there in the occupancy rights to be transferred to the said respondents. Further contends that the said respondents are not entitled to temporary allotment and that it is the petitioner who, even otherwise, is entitled to be offered the land for purchase by way of first right. Learned counsel for the respondents Nos, i to 4. on the other hand, states that the mortgage was made somewhere in the year 1903 and. as such, by the said date, 60 years had not expired and the land could have been redeemed.
3. I have gone through the record. Exh.P.8 is the copy of a mutation entry with reference to a registered mortgage deed dated 12-12-1884 stating that Moula and Ganga Ram sons of Sohawa have mortgaged the land in favour of Lachhman Das son of Ganga Ram (occupancy rights). Vide Mutation No, 480 Exh.P.10, the said Lachhman Das sold the mortgagee rights to Fazal Din. This mutation was attested on 28-5-1903. Vide Mutation No, 220 Exh.P.9. the said Fazal Din sold mortgagee rights to Peeran Dita. These mortgagee rights then devolved to Gewoni daughter of said Peeran Dita who proceeded to transfer the same to the present petitioner vide a registered sale-deed dated 30-4-1976 Exh.P.7.
4. I find that the learned Additional District Judge has proceeded on the assumption that notwithstanding the fact as to when the period of 60 years expired, the sale-deed executed in the year 1976 in favour of the petitioner by Gewoni would constitute acknowledgement within the meaning of section 19 of the Limitation Act, 1908. To my mind, the learned Additional District Judge has proceeded on wrong assumption and consequently, has acted with material of irregularity in exercise of jurisdiction. Needless to state that unlike a promise to pay time-barred debt an acknowledgement within the meaning of section 19 of the said fact had to be made before the expiry of period of limitation prescribed for a suit for redemption in the present case. There is evidence on record that the mortgage was made in. the ,year 1884 by mean of registered document and was implemented in the Revenue Record in the year 1886 (Exh.P.8). Thus, 60 years expired before 1-3-1947, the date prescribed in the Pakistan (Administration of Evacuee Property)
Act, 1957. Thus; so far as the occupancy rights were concerned they came to vest in the Muslim Mortgagee before the said date and the Central Government did not become vested with the occupancy rights. Learned counsel for the petitioner relies on the case of Din Muhammad and others v. Ghulam Wahid and others (1995 SCM R 675) in support of said contention. In the said case also, the mortgage was made in the year 1885/1886 in favour of non-Muslim Evacuee and it was held that before 1947, the equity of redemption stood extinguished and land lawfully vested in the Central Government.
5. The question that further arises in the cases is as to what is status of allotment made in favour of the said respondents. It has been conceded at the bar that the said Ganga Ram occupancy tenant was cultivating the land in payment of half share of the produce. This being so, upon the application of section 114 of the Punjab Tenancy Act, 1887 to the Evacuee land by virtue of section 13(b) of the Displaced Person (Land Settlement) Act, 1958. halt of the vested in the Central Government and :at other half vested in the occupancy tenant. Thus, the petitioner on the basis of said sale in his favour of the occupancy rights in 36 Kanals, 17 Marlas of land, became owner of half of the suit-land. So far as. the remaining half is concerned. that vested in the Central Government and has been transferred to the respondents Nos, 1 to 4.
6. The learned counsel for the petitioner has contended that land was not allotted to the respondents Nos 1 to 4 as temporary allottee and that the entries in the Revenue Records are incorrect showing temporary allotment of land in favour of the said respondents. I find that the only piece of evidence on record is statement of Gul Muhammad petitioner as P.W.1 as he has said not a word as to anything being wrong' with the allotment of the said respondents. I am not therefore, inclined to hold that the allotment made in favour of the said respondents does not exist on the basis of the said evidence.
7. As result of the above discussion, the civil revision is partly allowed and inasmuch as, it is declared that the occupancy rights having vested in the Muslim Mortgagees, the same vested with the petitioner and as' a result of the application of said section 114 of the Punjab Tenancy Act, the petitioner became owner of half of said land alongwith Central Government. No order as to costs.