1. TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment dated 30-7-2001 of the learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Civil Revision No,223-D of 1991 filed by the respondents was accepted and the earlier determinations of the learned Civil Judge, Attock, and the learned District Judge, Attock, rendered respectively on 3- 4-1991 and 21-5-1991 were set aside. The facts briefly narrated are that Nawab Khan, predecessor-in interest of the respondents, mortgaged the disputed property to Muhammad Shah, Sakhi Shah and Rasul Shah, all sons of Amir Shah, in lieu of Rs,2,000 vide Mutation No,166 dated 27-12-1920. Later the mortgagee rights of the disputed land were sold to Akhtar Hayat Khah and Liaqat Khan vide Mutation No,229 sanctioned on 31-12-1944. Again said rights were given to the predecessor-in-interest of the petitioners, Akbar Khan, vide Mutation No,225 sanctioned on 30-5-1945. Rasool Shah, one of the mortgagees, also transferred his rights vide Mutation No,245 on 30-5-1945 to Akbar Khan. The last mutation in this line was effected on 30-5-1945. A suit for possession through redemption of disputed land was filed by Muhammad Azam Khan etc. On 19-10-1989 for the aforesaid land claiming that limitation for the redemption of disputed land would start from the last mutation i,e, 30-5-1945. This plea was controverted by the defendants/petitioners. Issues were framed, parties led their evidence and the learned Civil Judge, Attock, through his judgment dated 2-4-1991 dismissed the suit holding that the last mutation bearing No,245 sanctioned on 30-5-1945 would not amount to acknowledgement within the meaning of section 19 of the Limitation Act, 1908. The learned trial Court held that limitation of 60 years would reckon from sanctioning of first mutation i,e, 27-12-1920.
2. The respondents filed an appeal assailing the aforementioned judgment of the trial Court, which was dismissed by the learned District Judge, Attock, vide his judgment dated 21-5-1991. Civil Revision No,223-D of 1991 filed by the respondents against the above impugned judgments of the Courts below was accepted by the learned Single Judge of the Lahore High Court at Rawalpindi Bench vide his judgment dated 23-7-2001, impugned in this petition. Hence, this petition for leave to appeal. Learned counsel for the petitioners has vehemently argued that the limitation would not run from 30-5-1945 as acknowledgement is neither in writing nor has been signed by the person making the same. He has emphatically stated that the mutation was not signed as per requirements of section 19 of the Limitation Act, 1908, so as to determine the acknowledgement. He has placed reliance on Zarif Khan and others v. Muhammad and others (PLD 1983 Peshawar 58) and Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others (PLD 1991 SC 524). He has also stated that the principle laid down by this Court in the case of Samar Gul v. Central Government and others (PLD 1986 SC 35) as well as in the case of Said Shah v. Absaruddin and 6 others (1999 SCMR 70) would not be attracted as these cases related to evacuee properties wherein mutations were sanctioned in favour of the Central Government and said mutations were treated as acknowledgment.
3. According to him, in private cases, to bring the case within the purview of section 19 of the Limitation Act, 1908, there must have been acknowledgement in writing.Learned counsel appearing for the respondents has supported the impugned judgment. He too has relied upon the above case-law. We have considered the contentions advanced by the learned counsel for the parties and have gone through the entire material placed on record with their assistance. It is reflected from the perusal thereof that the original mortgagor in this case was Nawab Khan son of Feroz Khan who mortgaged the disputed land measuring 83 Kanals, 2 Marlas vide Mutation No,166 attested on 27- 12-1920 in favour of three persons namely Muhammad Shah, Sakhi Shah and Rasul Shah, all sons of Amir Shah these were sub-mortgagees in between and the last one was ejected through Mutation No,245 sanctioned on 30-12-1945. It is an admitted position and is not denied by the learned counsel that the mortgagees required mortgagee rights by means of oral sales effected through mutations. It is also admitted that the transfer of rights through oral sales by effecting a mutation is a recognized mode of transaction. The proceedings regarding mutations are regulated under the West Pakistan Land Revenue Act, 1967 (hereinafter referred to as the Act). Section 42 of the Act prescribes procedure for making record. The mutation literally means "a change or an alteration". It is made to bring a change in the Revenue Record with the object of bringing it up to date. The requirement of law under section 42 of the Act is that an enquiry should be made in the Jalsa-e- Aam (common assembly) to which the mutation relates and the persons whose rights are going to be acquired shall be identified by two respectable persons and preferably from Lambardars or Members of Union Committee. The Revenue Officer is required to get their signatures on the register of mutations. However, the signature or thumb-impression by the transferor or the transferee is not required as mandated by the instructions issued to the Revenue Officers. Section 19 of the Limitation Act, 1908, provides for the acknowledgement. It specifically provides as under:-- "1.Effect of acknowledgment in writing.--(1) Where, before the expiration of the period permitted for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated; oral evidence may be given of the time when it was signed; but, subject to the provisions of the Evidence Act, 1872, oral evidence of its contents shall not be received."
4. It is true that the .Aforesaid section requires acknowledgment in writing signed by the party for the fresh start of period of limitation. ' However, the situation in the present case is totally different as the revenue law does not require affixation of signature either by the transferor or the transferee while effecting sale of landed property through oral mutation.
5. The petitioners in present case cannot blow hot and cold at the same time. They are admitting that they had got only mortgagee rights through Mutation No 215 sanctioned on 30-5-1945. They now cannot turn round and say that there was no acknowledgement of mortgagee within the terms of section 19 .Of the Limitation Act, 1908, as the same was not signed. How the mutation proceedings can be signed by a party when the law does not require the same. Section 42 of the Act only requires the verification from two respectable locals of the Revenue estate. In the circumstances, the petitioners cannot raise the plea that there was no acknowledgment of mortgagee rights. The present case is totally in line with the case of Samar Gul v. Central Government and Others (supra) wherein the learned Judges of this Court counted the acknowledgement from the sanctioning of Mutation No,176 on 11-1-1969. This view was further reiterated by this Court in the case of Said Shah v. Absaruddin and 6 others (supra).
6. The learned Single Judge of the Lahore High Court has rightly repelled the contention of the petitioners that the above case of Samar Gul was not applicable to the case in hand as there were instructions from the Chief Settlement Commissioner which led to the attestation of the mutation, as such the signature or thumb-impression was not necessary. At the cost of repetition, we must say that section 42 of the Act, under which mutations are sanctioned, does not require the signatures upon the mutation either of transferor or the transferee. It would be appropriate at this stage to reproduce the determination of the learned Single Judge of the High Court which is as under:-- "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 mutations of the sale of mortgagee rights were 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. 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 gain-saying the fact that these mutations were attested upon the statement made by the transferor as well as 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 by 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 acknowledgment within the meaning of section 19 of the Limitation Act, 1908 as held in the said case." Resultantly, for what has been stated above, the instant petition being without any merit is hereby dismissed and leave refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.