' On 19-10-1989 the petitioners filed a suit against . The respondents. In the plaint it was stated that the land was initially mortgaged by Nawab Khan son of Feroze Khan in favour of Muhammad Shah, Sakhi Shah and Rasool Shah vide Mutation No,166 attested on 27-12-1920. The mortgage money was Rs,2,000. Vide Mutation No,229 attested on 31-12-1944 mortgagee rights were sold in favour of respondents Nos.3 and 4. These mortgagee rights were then transferred in favour of Akbar Khan son of Nawab Khan vide Mutation No,225 attested on 30-5-1945. Thereafter Rasool Shah mortgagee transferred his share in the mortgagee rights in favour of Akbar Khan vide Mutation No,245 attested on 30-5-1945. It was stated that the limitation for the suit is to start w,e,f, 3-5-1945.
Prayer was made for redemption of the mortgage on payment of Rs,2,000. The suit was resisted by respondents Nos.3 to 6 as respondents Nos.1 and 2 were pro forma inasmuch as they were also stated to be the legal heirs of the said mortgagor. In their written statement the contesting respondents took the objection that the suit is barred by time. However, on merits it was admitted that they acquired the mortgagee rights in the years 1944 and 1945. Following issues were framed:- -
(1) Whether the suit is barred by time? OPD.
(2) Whether plaintiffs are estopped by their act and conduct to file the present suit? OPD.
(3) Whether this Court lacks jurisdiction to entertain this suit? OPD.
(4) Whether suit has been incorrectly valued for the purposes of court-fee, if so, what is the correct value and its effect? OPD.
(5) Whether plaintiffs have no cause of action? OPD.
(6) Whether plaintiffs are entitled to a decree as prayed for? OPD.
(7) Relief.
' Evidence of the parties was recorded. The learned trial Court found issue No,1 against the petitioners. Issues Nos.2 to 5 were found against the contesting respondents. In Issue No,6 it was found that the petitioners and respondents Nos.1 and 2 are the Legal Representatives of the original mortgagor but the issue was found in negative because of finding recorded on Issue No,
1. The suit was dismissed vide judgment and decree dated 2-4-1991. A first appeal filed by the petitioners was dismissed by learned District Judge, Attock in limine on 21-5-1991.
2. Mr. Zaheer Ahmad Qadiri, learned counsel for the petitioners contends that admittedly the mortgagee rights were sold in favour of the contesting respondents through mutations in the years 1944 and 1945 and as such this re-sale of mortgagee rights would give a fresh start to the period of limitation on the anology of section 19 of Limitation Act, 1908. Relies on the case of Said Shah v.
Absaruddin and 6 others (1999 SCMR 70) and Allah Bakhsh v. Member, Board of Revenue and others (1988 MLD 922).
3. Mr. Muhammad Munir Piracha, learned counsel for the respondents, on the other hand, relies on the case of Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others (PLD 1991 SC 524) to argue that a mutation entry not being an acknowledgement in writing signed by the mortgagee would not constitute an acknowledgement within the meaning of section 19 of Limitation Act, 1908 and as such the impugned judgments and decrees cannot be interfered with in this civil revision.
4. I have gone through the copies of the records appended with this civil revision, with the assistance of the learned counsel for the parties. The facts in this case are not disputed. The original mortgage was effected by means of Mutation No,166 attested on 27-12-1920 (Exh.P.2).
Mutation No,229 was attested on 31-12-1944 (Exh.P.4), Mutation No,245 was attested on 30-5-1945 (Exh.P.3). It is an admitted position that the contesting respondents acquired mortgagee rights by means of sales evidenced by the said documents. The point needing determination in the present case is as to whether the sale of mortgagee rights effected by means of a mutation would or would not constitute acknowledgement so as to give a fresh start to the period of limitation prescribed in Article 148 of the Limitation Act, 1908 for the redemption of a mortgage. I find that apart from the judgment cited by the learned counsel for the parties, the matter required examination of the judgment given by the Supreme Court of Pakistan in the case of Samar Gul v.
Central Government and others (PLD 1986 SC 35).
5. This Court while deciding the said case of Allah Bakhsh held that a re-sale of mortgagee rights by means of mutation would constitute an acknowledgement. This judgment came up for consideration before the Supreme Court in the said case of Muhammad Zaman and others (PLD 1991 SC 524). It was held that this does not lay down correct law while the law laid down in the case of Zarif Khan and others v. Muhammad and others (PLD 1983 Peshawar 58) was approved. The law laid down was to the effect that since 'a mutation neither constitutes a writing nor is signed by the party concerned does not constitute acknowledgement. This case was decided on 11-3-1991 by a Bench comprising two Hon'ble Judges of the Supreme Court. The judgment in the case of Samar Gul referred to by me above was not before their Lordships while deciding the case of "Muhammad Zaman". In the said case of "Samar Gul" a mortgage created in the year 1976 was sought to be redeemed in the year 1977. It may be noted that the mortgage was made in favour of a non- Muslim who became an evacuee and the said mortgagee rights were first acquired by the Central Government and later the land itself was transferred in favour of some eligible persons. The plea taken was that the Central Government while acquiring the land proceeded to acknowledge the mortgage. The matter was discussed in para. 9 of the judgment at pages 40 and 41 of the report. It was held that the relevant memorandum issued by the Central Government being couched in general terms making no mention to the land or the right of the owner would not be having effect as an acknowledgement. It was however, observed by the apex Court that Mutation No,1764 dated 11-1-1969 stands on a different footings. The mutation entered on 1-7-1964 was held to constitute acknowledgement of liability and the right of redemption possessed by Samar Gul, the appellant in the said case before the Supreme Court, and it was further observed that it clearly constitutes acknowledgement for the purposes of section 19 of Limitation Act, 1908.
6. Coming to the case of Said Shah (1999 SCMR 70) being relied upon by Mr. Zaheer Ahmad Qadiri, Advocate, this case was decided on 27-5-1998. In this case also, incidentally, a Mutation No,2287 dated 1-3-1944 was sought to be pressed as constituting acknowledgement within the meaning of said section 19. This case was decided by a Bench comprising three Hon'ble Judges of the Supreme Court of Pakistan. Their Lordships had before them the said case of Samar Gul as well as it was held that the said Mutation No,2287 attested on 1-3-1944 constitutes acknowledgement of 'mortgage. It was further held that the findings recorded by a learned Judge in Chamber of the High Court of Peshawar to the said effect was in accord with the observations of the apex Court in the case of Samar Gul.
7. Mr. Muhammad Munir Piracha, Advocate has tried to distinguish the said case of Said Shah and also of Samar Gul by arguing that it was held that the Chief Settlement Commissioner who had issued instructions in writing leading to the attestation of the mutation in the said case of Samar Gul was found to have acted as an agent of the Central Government. I have given some thought to this argument of the learned counsel and find that nothing turns on the same. The reference to the instructions in writing of Chief Settlement Commissioner was made in the judgment only to establish that the mutation was entered and attested on the authority of the Central Government i,e, the party against whom the right of redemption was being claimed. In the present case there is no denial of the fact that mutation of the sale of mortgagee rights was effected in favour of the said respondents by the original mortgagees/themselves. This brings the case at par with the reasoning contained in the case of Samar Gul adopted in the case of Said Shah in, respect of a mutation that was got entered and attested by a private party in favour of another private party.
The fact remains that while selling the mortgagee rights the original mortgagee and while purchasing the said rights, the respondents in present case for all purposes acknowledged the factum of mortgage. There is no gainsaying the fact that these mutations were attested upon the statement made by the transferor as well as by or on behalf of the transferees acknowledging the factum of the transfer of mortgagee rights. Respectfully following the reasoning in the said case of Samar Gul decided by a Larger Bench and adopted in the case of Said Shah by an equal number of Hon'ble Judges of the Supreme Court of Pakistan I conclude that the mutations whereby the contesting respondents purchased the mortgagee rights do constitute acknowledgement within the meaning of section 19 of the Limitation Act, 1908 as held in the said case. The suit having been filed on 19-10-1989 was thus within time and the learned Courts below have acted with material irregularity in the exercise of their jurisdiction in holding otherwise, and thus to non-suit the petitioners. This civil revision is accordingly allowed. The judgments and decrees passed by both the learned Courts below are set aside. The suit of the petitioners is decreed and I find that it has not been denied in the written statement that the original mortgage was for Rs,2,000 with possession. In the course of his statement as D.W.1 one of the contesting respondent Akhtar Hayat has admitted that the original mortgage was for Rs,2,000 with possession. The petitioners have stated in their plaints that they are ready to pay the said amount. No agreement for payment of interest is pleaded or proved. The office is directed to prepare a preliminary decree directing the petitioners to pay into the trial Court a sum of Rs,2,000 on or before 15-10-2001 and upon such deposit being made on or before the said date the respondent to put the petitioners in possession of the suit-land. In case the petitioners failed to deposit the said amount in the trial Court on or before the said date the contesting respondents shall be entitled to apply for final decree in terms of Order XXXIV, rule 7, C.P.C. Subject to the provisions of sub-rule (2) of Rule 7 of the said Order XXXIV, C.P.C. No order as to costs.