' In this civil revision concurrent judgments of two Courts below are called in question.
2. Brief facts necessary for the disposal of this civil revision are that on 1-3-1980, the petitioners filed suit for a declaration that they are owners in possession of land measuring 35 Kanals, 7 Marlas, the defendants have no concern with the same and Mutations Nos.314, 317 and 318 attested in the year 1971 whereby the said land was respectfully transferred in favor of Central Government, defendants Nos.3 and 4 and in favor of defendant No,5, are illegal and ineffective on their rights.
3. Precisely their case was that their predecessor-in-interest viz Rehmat and Saddoo sons of Loona were owners of the said land who had mortgaged the same to non-Muslim vide registered mortgage deed on 23-2-1897, mutation whereof was attested on 14-6-1897. At the time of partition of the sub-continent the non-Muslim mortgagees migrated to India and was declared evacuees.
4. In 1963-64 Central Government was recorded as mortgagee of the said land which was later on transferred -vide Mutation No,314, attested on 30-7-1971. It was thereafter transferred by the Central Government as Evacuee Property in favor of defendants Nos.3 and 4 vide Mutation No,317 who in turn alienated the same in favor of defendant No,'5, vide Mutation No,318 (respondents Nos.7-A, 11-A and 11-B are successors-in-interest of defendant No,5).
5. It was alleged that at the time of mortgage, mortgagor Saddoo was minor hence to his extent the mortgage was void and secondly it was a usufructuary mortgage; the non-Muslim mortgagees had been enjoying its usufructs till 1947 whereafter they mirgrated and had thus realized the crops equal to the mortgage money hence on their evacuation, the mortgage stood redeemed and in any case if any amount of mortgage money was outstanding, it was paid by the petitioners to the Central Government who had acquired mortgagee rights in the land and not the land itself. For the said reasons, the land in question could neither be treated as evacuee property nor it could be allotted as such.
6. The suit was contested. After framing relevant issues and recording evidence, the learned Senior Civil Judge, Vehari dismissed the same with costs on 13-4-1987. Petitioners' appeal against that decree was also dismissed by Additional District Judge, Vehari on 17-4-1993.
7. The aforesaid concurrent judgments are assailed in this revision petition which is opposed by the learned counsel for respondents Nos.7-A, 11-A and 11-B, successors-in-interest of defendant No,5.
8. Arguments heard, revision petition and its annexures perused.
9. It was argued by the learned counsel for the petitioners that findings of both the Courts below on Issue No,1, are against law and facts, and t hey had erred in holding that suit was barred under Order XXIII, rule 1(3), C.P.C.
10. Contention is devoid of any force inasmuch as it was amply proved on record through documentary evidence that previous suit filed by the petitioners on the same cause of action was withdrawn on 5-12-1978 without seeking permission to file a fresh suit on the same cause. Appeal against that order filed by the petitioners was dismissed by Additional District Judge, Vehari on 14- 1-1980. Learned counsel for the petitioners urged that the said appeal should have been treated as an application under section 12(2), C.P.C. Because the counsel had withdrawn the previous suit without instruction from the petitioners. The said objection regarding decision given by Additional District Judge, on 14-1-1980 and that too in an appeal regarding previous suit, cannot be raised for the first time in this revision petition.
11. It was next submitted by the learned counsel for the petitioners that the previous suit as well as the second suit were both, in fact, for redemption of mortgage and so long as the mortgage subsists, the mortgagor has a right to redeem it within the time prescribed by law hence dismissal of the previous suit or even failure to pay mortgage money did not bar the institution of subsequent suit for redemption. According to the learned counsel, both the Courts below had f3iled to consider the said legal aspect and had, therefore, acted illegally and with material irregularity in holding that the suit was hit by Order XXIII, rule 1(3), C.P.C.
12. The above argument is entirely misconceived because neither the previous nor the subsequent suit was for redemption of mortgage. In both the suits it was clearly pleaded that the mortgage stood redeemed in 1947 when the evacuee mortgagees migrated and that in any case if any amount of mortgage money was outstanding it was paid by the petitioners to the Central Government hence the property stood redeemed. Both the suits were for a declaration that the petitioners are in possession of the suit-land as absolute owners thereof. The argument of the learned counsel that the suits were for redemption of mortgage is, therefore, contradictory to the claim made by the petitioners in their suits and as such is not tenable being misconceived.
Moreover; it stood proved on record that it was not a usufructs mortgage, and property having been mortgaged with possession had not been redeemed by the mortgagors for a period of 60 years whereafter its possession had passed to the Central Government as evacuee property which was transferred by it as such to defendants Nos.3 and 4 who in turn sold it to defendant No,5.
Property in question having not been redeemed within period of limitation, petitioners had lost their right to redeem the same and their title to hold it had become extinct.
13. It was next argued that it was not rebutted that Saddoo (one of the mortgagors), was minor at the time of the creation of mortgage hence mortgage was void to the extent of Saddoo. It was urged that the learned Courts below did not avert to the aforesaid important legal aspect.
14. Argument is without force because it is rather, too late in the day to assert so inasmuch as according to para.6 of the plaint, the petitioners have themselves alleged that on the death of said Saddoo, his share in the property had devolved on Raheem Bukhsh, Abdullah and Murad and on the death of the aforesaid three persons it was inherited by the petitioners. Saddoo had spent his entire life after attaining majority without raising any objection and after him his successors Raheem Bukhsh, Abdullah and Murad also did not raise such objection during their entire life.
Therefore, when the predecessors-in-interest of the petitioners and even their predecessors-in- interest did not raise any objection, it does not lie in the mouth of the petitioners to now raise objection that mortgage was void since its inception to the extent of Saddoo as he was minor.
Argument of the petitioners' counsel is accordingly repelled.
15. It was next argued that the petitioners had applied for redemption on 20-5-1971 but the Deputy Settlement Commissioner/Collector had illegally rejected their application as time-barred and, thereafter., their petition was also illegally dismissed by the Custodian.
16. Orders of the Deputy Settlement Commissioner/Collector and the Custodian were not assailed in the civil suit hence the argument is irrelevant and is not liable to be considered.
17. Learned counsel for the petitioners had also advanced arguments assailing the order of withdrawal passed in the previous suit on 11-10-1975, order passed in appeal on 14-1-1978 by Additional District Judge, against that order but since the said arguments were irrelevant they are not being reproduced.
18. It was finally contended that both the impugned judgments suffer from non-reading and misreading of evidence. However, learned counsel for the petitioners could not point out any material piece of evidence which was allegedly overlooked or was misread by any of the two Courts below.
19. A perusal of the impugned judgments coupled with the evidence shows that neither there appears to be any misreading of evidence nor any material piece of evidence appears to have been overlooked.
20. Findings given in the impugned judgments are based on evidence and conclusions arrived at are supported by sound and plausible reasoning; against such findings and conclusions, interference in revisional jurisdiction is not warranted. Section 115, C.P.C. Is attracted against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of law or fact not involving the question of jurisdiction. No jurisdictional infirmity in the impugned judgments could be pointed out.
21. Nutshell of the above discussions is that finding no force in this revision petition it is hereby dismissed with costs.