' The facts relevant to this petition briefly stated, are that Muhammad predecessor of the respondents Nos. 1-46 (hereinafter referred to as the contesting respondents) owned land measuring 601 kanals, comprised of Khewat No, 7, Khatuni Nos. 36-52 and situate in village Mussa Kalan, Tahsil Phalia, District Gujrat. On 14-3-1894, he out of this land, mortgaged 25 Bighas for a sum of Rs, 99 with Ganpat son of Hassa Singh by an unregistered mortgage deed. On the death of Ganpat, his mortgagee rights were succeeded by Devi Dyal and others; all of whom had migrated to India in the wake of Independence. Again, through a registered mortgage deed, he, on 11-7-1899, mortgaged with possession 50 Bighas more land out of the total holding to the same mortgagee, namely Ganpat son of Hassa Singh. On 30-1-1945, the predecessor-in-interest of the contesting respondents paid Rs, 40J the mortgage money and redeemed the land. This payment was acknowledged by the mortgagees on the back of the mortgage deed, which was returned to the respondents. A mutation of redemption No, 216 was, accordingly entered on 12-3-1945. The mortgagees except Hans Raj, on 29-3.1945, appeared before the Revenue Officer and admitted the receipt of the mortgage money and delivery of possession of the mortgaged land to the predecessor-in-interest of the respondents. Mutation was, however, rejected on 27-5-1946 on account of the non-appearance of the parties and non-payment of the mutation fee. The respondents' possession over the land in dispute was not disturbed nor was any step taken by the Rehabilitation Authorities to treat any part of the land as evacuee property, until 1964, when, on 29- 2-1964, the Rehabilitation Authorities allotted some portion of the mortgaged land to the petitioner.
The respondents, on these facts, filed an application under section 22 of the Pakistan (Administration of Evacuee Property) Act, XII of 1957, for a declaration that they are the exclusive owners of the disputed land; that non-muslin evacuees have got no mortgagee rights in it and, in the alternative, they prayed for the redemption of the mortgage.
2. On this, the proceedings were initiated with the Deputy Custodian, Evacuee Property, Lahore. He found that the land was a joint holding of the respondents, out of which 25 Bighas were mortgaged by Sharaf son of Hassan for a sum of Rs, 98 with Ganpat son of Hasa Singh ride Mutation No, 21/3 sanctioned on 25- -1893 that another 25 Bighas were mortgaged by Muhammad son of Hassan for a sum of Rs, 99 with the said Ganpat and a Mutation No, 27/29 was sanctioned on 19-3-1894. Later, Muhammad redeemed his 25 Bighas on payment of the mortgage money to Ganpat ride Mutation No, 21 sanctioned on 10.9-1899 and instead mortgaged 50 Bighas out of his share in the joint holding, through a registered mortgage deed, dated 11-7-1899 and Mutation No, 22 was also sanctioned on 10-9-1899. The two mortgages, namely the one effected by Sharaf on 25-3-1893 and the second by Muhammad on 11-7-1899 had not been redeemed. The mortgage by Sharaf dated 25-3-1893 was not even mentioned by the respondents in their application before the Deputy Custodian. He found that the mortgage created by Sharaf was beyond a period of 60 years and, therefore, right to redeem was barred by limitation. As regards mortgage by Muhammad dated 11- 74899, he did not believe that the mortgage money had been paid to the mortgagee. He doubted the genuineness of the acknowledgment on the mortgage deed as to the receipt of the mortgage money. He did not believe that the possession of the mortgaged land was delivered to the respondents as admitted by the mortgagees before the Revenue Authorities on 29-3-1945. He drew this conclusion from the observation of the Revenue Officer at the time of the rejection of the Mutation on 27-5-1946. According to him, therefore, even this was a subsisting mortgage. Dealing with the prayer of the respondents for redemption, this officer was of the view that the cause of action to the respondents had arisen on 27-6-1946 when mutation for redemption was cancelled and, therefore, they could initiate proceedings within six years under Article 120 of the Limitation Act.
The application, therefore, according to him was barred by limitation. He then observed that for the second time, cause of action arose on 29-2-1964 when a part of the disputed land was confirmed to the petitioner and lastly on 24-3-1964. When possession of the allotted land was given to the allottee. An application under section 22 of Act XIT of 1957 could be instituted within 30 days as provided the rules! And the application having been filed on 2-12-1964 was barred by limitation. He concluded that mortgage having been created on 11-7-1899, right to redeem was barred on the expiry of a period of 60 years. He, therefore, rejected the application by his order dated 30-7-1966.
3. The respondents aggrieved of the order of the Deputy Custodian filed an appeal before the learned Custodian. The learned Custodian by his order dated 17-10-1970 accepted this appeal partly. He allowed the respondents to redeem the mortgage dated 11-7-1899 regarding 50 Bighas of land on payment of Rs, 400 to the compensation pool. He, however, refused to redeem the mortgage created by Mutation No, 21/3 dated 25-3-1893, regarding 25 Bighas of land and ordered that the same be resumed to form part of the compensation pool. The allottee Muhammad Sharif has called in question this order of the custodian by present constitutional petition. The petition was admitted to a hearing to consider the point if the Custodian could order the redemption of a mortgage after the period of 60 years prescribed by law.
4. Learned counsel appearing for the petitioner has argued that under Article 148 of the First Schedule to the Limitation Act, a mortgagor can file a suit against the mortgagee to redeem or recover possession of immovable property mortgaged within a period of 60 years from the date when right to redeem or to recover the possession accrues. According to him no time within which the property could be redeemed was prescribed in the mortgage deed, the period shall be reckoned from the date of execution. The document was executed on 11th of July 1399, and registered on the same day. The right to redeem stood extinguished with effect from July 1959, and as the present application before the Deputy Custodian was filed in December 1964, the same was rightly rejected. The order of the Custodian, therefore, suffered from unlawful exercise of power as he has not adverted to this aspect of the case. He then submitted that mutation for redeeming the land was rejected on 27-5-1946 and if the respondents were aggrieved of this order of the Revenue Officer, they could have filed a suit for a declaration within a period of six years, as provided under Article 120 of the Schedule to Limitation Act.
5. I do not find force in any of the submissions made by the learned counsel for the petitioner. The learned Custodian in the exercise of his powers under section 25, Act XII of 1957 has allowed the redemption of the mortgage and no exception can be taken to this exercise of poser by the learned Custodian. The view of the Deputy Custodian that the provisions o Article 148 of the First Schedule to the Limitation Aot or Article 120 are applicable, is nothing but illusory.
6. Article 148 is to the following effect 1- Dercription of suit.Period of limitation.Time from which period begins to run.
Against a mortgage to redeem or toyears recover possession of immovable property mortgaged.Sixty yearsWhen the right to redeem or to recover possession accrues Provided Similarly, Article 120 prescribes a period of six years within which a person can file a suit to establish his right and for which no period of limitation is provided elsewhere in the Schedule. It is an admitted fact that all the mortgagees had migrated to India in the wake of Independence. Leaving apart the evacuee laws, the period would not have run against the respondents in view of the provisions of section 13 of the Limitation Act. Section 13 of the Limitation Act is to the following effect :- "in computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from Pakistan and from the territories beyond Pakistan under the administration of the Central Government, shall be excluded."
' At the time of Partition in 1947, when the mortgagees migrated to India, neither a period of 60 years had expired with effect from the date of mortgage, I e., 11-7-1899 or a period of 6 years with effect from 27-5-1946 when the Revenue Authorities rejected the mutation. The period of limitation would then stop running in view of the provisions of section 13 of the Limitation Act. It cannot be said that the period of limitation, although has stopped running against the evacuees, will continue to run in favour of C the Custodian, he having stepped into their shoes. By operation of law, evacuee properties, have become vested in him, yet he is not successor-in interest of the evacuees so as to claim benefit under the law of limitation. Articles 148 and 120 of the First Schedule, moreover, apply to suits and not to applications before the Custodian, under the provisions of the Pakistan (Administration Evacuee Property) Act XII of 1957. If one is to accept th view taken by the Deputy Custodian, that the time would continue to run in favour of the custodian, an anomalous situation may be created. There may be cases where persons were holding properties adverse to the non-Muslims. Period of 12 years within which a suit for possession could be instituted under Article 144 of the Limitation Act, might not have expired by 1947. It cannot be said that the time shall continue to run against the Custodian notwithstanding the fact that on migration of the evacuees, the properties have become vested in him. This does not seem to be the intention of the evacuee laws. Section 5 of Act XII of 1957 may meet this situation. Subsection (1) provides :- "The provisions of this Act, and any rule or order made thereunder, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law."
7. There is yet another way of looking at the situation. At the time the property vested in the Custodian, he simply stepped into the shoes of the evacuee owners and had the same rights as were possessed by the evacuees. If the right to redeem the properties mortgaged with the evacuees subsisted at the time of Independence, this will continue to subsist until the properties are redeemed in accordance with the rules prescribed by the Custodian for this purposes or the rights are defeated on account of the failure on the part of the mortgagor to take steps under the rules. Articles 148 and 120 of the Schedule to the Limitation Act have no application to such cases.
The Custodian has jurisdiction to order redemption of such properties by virtue of section 41 road with section 25(2)(1) of Act XII of 1957. The Chief Settlement and Rehabilitation Commissioner by his Memorandum No, 6883-59/7042/R(P), dated 8-12.1969 has, in fact, given instruction to the following effect : "The land mortgaged by locals with evacuees has remained excluded from allotment under the Rehabilitation Settlement Scheme. The question of its final disposal has been considered and it has been decided that the amounts (mortgage money) due to the evacuee in such cases should be recovered by the local Rehabilitation authorities within their respective areas of jurisdiction. The needful will be done under section 25 (2)(1) of the Pakistan (Administration of Evacuee Property)
Act, 1957. Powers under this subsection have since been delegated to the Deputy Rehabilitation Commissioners and Assistant Rehabilitation Commissioners by the Custodian of Evacuee Property, vide Custodian's orders dated the 28-8-1952/27-11-1959. The Assistant Rehabilitation Commissioner's concerned should immediately issue a notice to the local mortgagors of this category to redeem the properties involved within one month, failing which the evacuee rights in the properties shall be auctioned under section 25(2)(s) of the Pakistan (Administration of Evacuee Property) Act, 1957 ' The position was further clarified by the Chief Settlement and Rehabilitation Commissioner in his Memorandum No, 3519-3038 R (P), dated 12-11-1960, which provides :- "It may be observed that after the migration of evacuees their properties vested in the Custodian.
Non-evacuee mortgagors could have sought redemption of the mortgage or recovery of possession in their immovable property from the Custodian of Evacuee Property."
' The Custodian cannot be allowed to take the position, that with a further passage of time, the right to redeem has extinguished under Article 148 of the Schedule to the Limitation Act.
8. I am supported in the view I have taken by a judgment of their Lordships of the Supreme Court in the case of Muhammad Khan and others v. Chief Settlement and Rehabilitation Commissioner, West Pakistan and another (1). In expounding this proposition it has been held thus :- "The intention to destroy the rights of Pakistani owners in properties, in which part of the interest vested in an evacuee, without any compensation whatsoever, cannot be lightly attributed to the Legislature. The (1) PLD 1962 SC 284 Displaced Persons (Land Settlement) Rules, 1959, makes it clear that permanent settlement of lands has to be made only to the extent of the right or interest abandoned by an evacuee therein."
' In Ghazi v. Nighat Ara Begum and 38 others (1) a Division Bench of this Court has held thus "On the other hand where the land had been mortgaged by a local Muslim to an evacuee, as is the case hero, it vested in the Custodian only to the extent of the right or the interest of the evacuee mortgagee and the local mortgagor could redeem such land on payment of the mortgage money, or the Custodian could take action to recover the mortgage money under clause (1), failing which the Custodian could transfer the property under clause (s) of subsection (2) of section 25 of the Pakistan (Administration of Evacuee Property) Act. It would not be correct to say that the right of the mortgagor to redeem the land on payment of the mortgage money had been extinguished by the enactment of the Pakistan (Administration of Evacuee Property) Act, 1957."
8. For all that has been stated above, this petition has no force and the same is, therefore, dismissed. The parties shall bear their own costs.