On 28-2-1983 respondents Nos.1 to 3 filed a suit against the petitioners as also the remaining respondents. In the plaint it was stated that Khewa etc., had mortgaged the suit land in favour of Aziz Din, Muhammad Shafi, Muhammad Ahmad and Din Muhammad sons of Mokham Din, on 30- 9-1983 with possession; that respondents Nos.1 to 3 are the legal heirs of said mortgagees alongwith pro forma respondents; that the share of respondents Nos.1 to 3 is 1/48 and their co- mortgagees have not joined them in the suit; that Muhammad Sadiq, the predecessor-in-interest of the petitioners fraudulently purchased the land from the original owners vide Mutations Nos.3 and 7 was attested on 28-11-1977 as he was aware of the mortgage and had been cultivating the mortgaged land as a tenant. It was then stated that since respondents Nos.1 to 3 are coming in possession as mortgagees for a period of over sixty years and the land had not been got redeemed, the, equity of redemption has extinguished and they have become owners by operation of law. With these averments they sought a declaration that respondents Nos.1 to 3 have become owners of the suit land. The suit was contested by the deceased predecessor-in-interest of the petitioner who filed a written statement. He categorically denied that respondents. Nos.1 to 3 are mortgagees of 1/48 share. He also denied that they are the L.Rs, of the alleged mortgagees. He then explained that he has purchased the land from the owners by means of a registered sale-deed dated 9-7-1975 on the basis whereof Mutation No,307 was attested. He admitted to be a tenant of the suit land but according to him he was a tenant under the owners. He claimed that he is in possession having been delivered the same by the owners under a valid sale. Following issues were framed:-
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the suit is barred by time? OPD.
(3) Whether the suit is bad for non-joinder of parties? OPD.
(4) Whether the suit is correctly valued for the purposes of court-fee and jurisdiction? OPP.
(5) Whether the plaintiffs are estopped by their own conduct to file the present suit? OPD.
(6) Whether the plaintiffs have become the owners of the suit land by lapse of time? OPP.
(7) Relief.
Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 26-11-1987. A first appeal filed by respondents Nos.1 to 3 was heard by a learned Additional District Judge, Sheikhupura who allowed the same and decreed their suit on 2-7-1989.
2. Learned counsel for the petitioners contends that respondents Nos.1 to 3 proceeded to claim the said declaration without impleading the mortgagors as a party. Further contends that the learned Additional District Judge has misread the record while holding that the predecessor-in-interest of the petitioners was a tenant under the alleged mortgagees. Then argued that there is no evidence on record that the said respondents Nos.1 to 3 in fact are the L.Rs, of the alleged mortgagees.
Further urges that the petitioners being in possession there was no question of any suit having become barred by time and as such extinguished their title. Learned counsel for respondents Nos.1 to 3, on the other hand, has tried to argue that the equity of redemption stood extinguished by expiry of the prescribed period of 60 years and thus, has supported the impugned judgment and decree of the learned Additional District Judge.
3. I have gone through the copies of the records appended with the civil revision with the assistance of the learned counsel for the parties. As noted by the learned Additional District Judge in his impugned judgment a mortgage deed or mutation is not forthcoming on the record.
However, in the Jamabandi for the year 1908-9 (Exh.P.1) it finds mentioned that Keema etc. Are mortgagors while Mst. Fazal Bibi sister of Budha, Hayat son of Makhan and Makhan son of Kalu are the mortgagees. Possession is recorded with that of Mst. Fazal Bibi and Makhan and Hayat. Similar are the entries in the column of possession in Exh.P.2 which is. Jamabandi for the year 1912-13. In the Register Haqaran Zamin for the year 1921-22 one Imam Din is recorded to be a non-occupancy tenant under the mortgagees in Khasra No, 1026 while one Fazal son of Rukan Din is recorded to be tenant under mortgagees in Khasra No,1016. Remaining Khasra Nos. Are recorded as Banjar Qadim.
In Register Haqdaran Zamin for the year 1925-26. Imam. Din is recorded to be a tenant under the mortgagees in Khasra No,1026 while Ilam Din etc. Are recorded to be tenants under the mortgagees in Khasra Nos.1016 and 1017. In the Misal-e-Haqiat 1956-57 Khasra No,1026 is recorded to be in possession of Muhammad Ikram mortgagee while Karam son of Qaim Din is recorded to be a tenant without mention of any other particulars while the factum of mortgage remains recorded in the column of ownership. The same entries continue in the years 1960-61, 1964-65 and 1969-70. In Register Haqdaran Zamin for the year 1976-77 the said Muhammad Sadiq is recorded to be a tenant in Khasra No,99/4 and 7 (this change probably has taken place due to consolidation).
The remaining land measuring 4 Kanals bearing Khasra No,90/24/1 is also recorded to be in possession of another tenant. The sale-deed in favour of Muhammad Sadiq is Exh.P. D-1 which has been scribed with reference to Register Haqdaran Zamin for the year 1969-70. The executants admitted that the land is mortgaged but asserts that the possession is with them. The price was fixed at Rs, 25,000 and Rs,300 retained for payment to the mortgagees.
4. The fate of this case hinges on the fact as to whether Sadiq was a tenant under the said owners/mortgagors or the said mortgagees. The only witness appearing for the petitioners is Muhammad Rashid, respondent No,2. He has not stated anything about the nature of possession of Sadiq as to whether he was a tenant under the owners or the mortgagees. At this stage I may note here that upon an examination of the plaint it would reveal that even in the plaint although it was stated that Sadiq is cultivating the land as a tenant, yet it was not pleaded that Sadiq is a tenant under the mortgagees. On the other hand, Sadiq had taken a categorical plea that he was a tenant under the mortgagors. On the other hand, Abdul Hamid son of Sadiq deceased appearing as D.W.1 stated that possession is with them and that his father had purchased the land. In his cross-examination he has stated that possession was with his father even before the sale. He expressed ignorance when suggested that the possession was given to their father by the plaintiffs in the case.
5. A perusal of die Revenue Records produced by the said plaintiffs/respondents would show that at least from the year 1956-57 the mortgagees stand out of possession of two out of three Khasra numbers involved in this case while w,e,f, 1969-70 they stood removed from the said third Khasra numbers as well. In the said state of evidence on record and the burden being heavy on respondents Nos. 1 to 3, it cannot be said that Sadiq had been put in possession by the said respondents Nos. 1 to 3 when much earlier than that the alleged mortgagees had ceased to he in possession.
6. Another vital aspect of the case completely ignored by the learned Additional District Judge is that no pedigree-table was produced by the said respondents Nos.1 to 3 when Sadiq had denied that they are the L.Rs, of the alleged mortgagees. So far as the Revenue Record goes I do not find the name of any of the three respondents/plaintiffs in the same. Rashid while appearing as P.W. 1 when confronted, he stated that the land was mortgaged to Aziz Din, Muhammad Shafi, Din Muhammad and Muhammad Amin. Regarding Aziz Din, he stated that he died issueless 40 years ago and that he is not aware of the death of the others. Then stated that they are also died. He then stated that Aziz Din had an adopted son who has also died. He does not know as to upon whom the estate of Aziz Din devolved. Regarding Din Muhammad, he stated that he died in 1972 and that he has a son and that he has other sisters as well who are alive. He admitted that no mutation of inheritance had been attested. He then stated that the land was in fact mortgaged in favour of Mohkam Din, the father of said Muhammad Shafi etc. Regarding Muhammad Shafi he stated that he has son and several daughters, he named two but does not know the names of others. Similar is the position regarding the other alleged mortgagees. Needless to state that he does not know a thing about the mortgagors or their L.Rs, He has not stated about his co-plaintiffs as to how they inherited the mortgagee rights. In this state of evidence it was not at all proved on record that the said plaintiffs/respondents were possessed of a locus standi to file the suit. The learned Additional District Judge has proceeded to deprive the petitioners of the entire land in the process.
7. Coming to the legal aspect of the matter, what is barred by section 28 of the Limitation Act, as it stood before its declaration to be repugnant to Injunctions of Islam, is a suit for possession. Learned Additional District fudge did not bother to consider as to whether Sadiq or his L.Rs, would be required to file a suit for possession when admittedly they are in possession of the land. If there is no requirement of filing of a suit for possession, then there is no question of any period of limitation for the same and consequently extinguishment of right of property. Needless to state that expiry of limitation prescribed for redeeming a mortgage would only extinguish the remedy and the right would be extinguished only if provisions of section 28 of the said Act were to be applicable. To my fnind in the facts and circumstances of the present case, the said provisions would not be applicable as such there was no question of grant of any declaration to the plaintiffs/respondents and that too in respect of the entire land.
8. For all that has been stated above I find that the learned Additional District Judge has acted with material irregularity in the exercise of his jurisdiction while passing the impugned judgment and decree. This civil revision is accordingly allowed. The judgment and decree dated 2-7-1989 passed by the learned Additional District Judge, Sheikhupura is set aside while the one passed by the learned Trial Court on 26-11-1987 dismissing the suit of respondents Nos. 1 to 3 is restored. No orders as to costs.