' EJAZ AFZAL KHAN, J.--- The respondents Ghaunsullah and others instituted an application for redemption of the property comprised in Khasra Nos.1877 and 1878 measuring 158 Kanals, 4 Marlas situate in Tank against the predecessors-in-interest of the petitioners herein in the Court of Collector, Tank which was accepted vide order, dated 11-12-1998 while the appeal against the said order was dismissed and so was the revision petition vide orders, dated 11-5-1999 and 30-5-2000 respectively.
2. The petitioners have filed the instant Constitutional petition impugning the aforesaid orders as being without jurisdiction and lawful authority.
3. The learned counsel for the petitioners contended that the property forming subject-matter of this litigation was mortgaged on 12-6-1900 and after the expiration of sixty years the mortgagees became owners and the title of the mortgagors stood extinguished, therefore, the mortgagors had no right whatsoever to institute an application for the redemption of the property and that all the Courts of Revenue hierarcy have acted without jurisdiction and lawful authority by accepting the application of the respondents for the redemption of the property especially when it is against the express provisions of Article 148 of the Limitation Act.
4. On the other hand, the learned counsel for the respondents contended that the application of the respondents was rightly accepted as that time when the application for the redemption of the property was instituted section 28 of the Limitation Act ceased to have effect, therefore, the orders passed by the Courts of revenue hierarchy are perfectly in accordance with law. The learned counsel next contended that the mortgagees were in possession of the mortgaged land and in receipt of the usufructs, therefore, such receipt would not only be an acknowledgement of the mortgage but would also be counted towards the payment of the mortgage money for the purpose of limitation. The learned counsel in this behalf placed reliance on Abdul Haq v. Ali Akbar 1999 SCM R 2531.
5. The argument that expiration of sixty years ever since the creation of mortgage per se will perfect the title of the mortgagees through prescription and that the right of the mortgagors to redeem the property would stand extinguished is not correct unless a declaratory decree in this behalf is obtained from the competent Court of law.
6. The question 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, 1882 can be decreed and whether a law declared by the Supreme Court of Pakistan to be repugnant to the Injunctions of Islam and ceasing to have effect after the date fixed in the decision can be held synonymous with the repeal of a law would also require a thorough consideration by this Court. Before these questions are answered it will not be out of place to make a reference to the relevant provisions of the Constitution of Islamic Republic of Pakistan and the General Clauses Act. These are 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 a 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 provision 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,--
(1) 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, and 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."
7. A perusal of the above quoted 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 latter 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.
8. Section 28 of the Limitation Act was declared repugnant to the Injunctions of Islam by the august Supreme Court in the case of Maqbool Ahmad v. Government of Pakistan 1991 SCM R 2063 and according to that 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.
9. Quite apart from this, the extracts from the periodical record indicate that the mortgage in question was usufructory in nature because the possession of the property mortgaged remained with the mortgagees who had been enjoying its usufructs ever since the creation of mortgage. It is by now settled that where a mortgagee is in possession of the mortgaged property and is in receipt of the usufructs, such receipt would be considered as an acknowledgement of mortgage and counted towards the payment of mortgage money within the terms of section 20(2) of the Limitation Act. In the case of Abdul Haq v. Ali Akbar and 12 others (supra) it was held by their Lordships of the Supreme Court of Pakistan while dealing with similar question 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 is 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."
10. The last argument of the learned counsel for the petitioners that the redemption of mortgage as ordered by the Courts of revenue hierarchy is against the express provisions of Article 148 of the Limitation Act is also void and vacuous both legally and logically when considered in the light of the foregoing paragraph of the judgment of the Honourable Supreme Court because every such receipt of usufruct would give rise to the afresh period of limitation.
11. When admittedly the mortgage was usufructory in nature the question of extinguishments of title of the mortgagors and perfection of the title of the mortgagees through prescription will not arise, more so when the decisions of the Civil Judge, dated 25-9-1995 dismissing the suit of the petitioners in this behalf and that of the learned District Judge, dated 28-7-1997 upholding the judgment of the former have not been challenged in the higher Forum.
12. For the foregoing reasons, we do not find any substance in the instant Constitutional petition which is accordingly dismissed with no order as costs.