IFTIKHAR MUHAMMAD CHAUDHRY, ACTG. C.J.---This appeal by leave of the Court is directed against the judgment dated 18th January. 1996 passed by Peshawar High Court, whereby Civil Revision No,239 of 1997 filed by the respondents has been allowed.
2. Precisely stating the facts of the case, as per available record, are that initially vide Mutation No,226, attested on 31st December, 1907.Mst.Pakha purchased some mortgagee rights from Birbal etc. Which were subsequently transferred to Sher Baz Khan through Mutation No,975, attested on 23rd March, 1914, who further mortgaged the land to Abbas Khan as per Mutation No,1465, attested on 16th December, 1917' later on, Abbas Khan also sold his rights to Mst. Salima through Mutation No,1792, attested on 5th May, 1919 and another sub-mortgage which took place in favour of Zar Wali Khan vide Mutation No,3078, attested on 7th March, 1927, From 1926-27 up to 1958-59 Abbas Khan and Zar Wali Khan were recorded as mortgagees. However, on 2nd March 1962, vide Mutation No,7961, the rights of Abbas Khan were transferred to predecessor-in-interest of appellants namely Awaz Khan and Mst.Shoda, whereas the rights of Zar Wali were transferred to Mst.Reshim Dana, Saleh Khan, Nek Amal Khan and Mst.Sehar Dana vide Mutation No,9037 attested on 29th July, 1963 and Mst.Shoda's rights were transferred to Kajeer and Mir Gul. It seems that on 11th February, 1979, predecessor-in-interest of the appellants Awaz Khan, Kajeer and Mir Gul obtained the mortgagee rights of Mst.Rasham Dana, Saleh Khan, Nek Amal Khan and Mst.Sehar Dana and sometime later Mir Gul and Kajeer transferred their rights to Awaz Khan through Mutations Nos.369 and 382 attested on .11th May, 1979 and 11th May, 1979 respectively. On 28th May, 1979 predecessor-in- interest of petitioners Awaz Khan filed a suit for declaration to the effect that as a period of 60 years prescribed for the redemption of the property has expired, therefore, the plaintiff by prescription has acquired the ownership rights of the suit-land. The suit was contested by the respondents vehemently repudiating the claim of the appellant's predecessor-in-interest. Learned trial Court framed issues arising out of the pleadings of the parties, recorded evidence and vide judgment dated 21st May, 1985 dismissed the suit. Appellants approached the Appellate Court i,e, District Judge by way of filing appeal, calling in question the judgment/decree of the trial Court, who vide his judgment dated 9th December, 1986, on setting aside the judgment/decree of the trial Court, decreed the suit as it was prayed for. The respondents, feeling dissatisfied from the judgment/decree of the Appellate Court preferred revision petition before the High Court, which has been allowed by means of impugned judgment. Hence, this appeal by leave of the Court.
3. Dr.Hussain Khan, Advocate Supreme Court/Advocate-on-Record has appeared on behalf of the appellants, whereas Mr.Amanullah Khan, Senior Advocate Supreme Court appeared on behalf of respondents.
4. Leave to appeal was granted to examine the following question:-- "Whether the transfer a mortgagees rights from time to time falls within the purview of section 19 (acknowledgment) as to give fresh start of period of limitation in a suit for redemption?"
5. Learned counsel appearing for appellants contended that under section 19 of the Limitation Act, late Awaz Khan mortgagee had not acknowledged the right of predecessor-in-interest of respondents as mortgagors, therefore. On the expiry of the period of 60 years prescribed for redemption of property under Article 148 of the Limitation Act, the mortgagee has become owner of the mortgaged land. Therefore, respondents are debarred from redeeming the property.
6. On the other hand learned counsel for respondents-mortgagors argued that appellants' predecessor-in-interest while acquiring the mortgagee rights in the property vide Mutation No,7961, attested on 2nd March, 1962, on his name has made acknowledgment about the rights of respondents, therefore, limitation to file a redemption proceedings shall stand extended and appellants' predecessor-in-interest who himself emerged on the scene from 2nd March, .1962, cannot become owner by prescription under section 28 of the Limitation Act, of the land in dispute.
It was also contended by him that Shariat Appellate Bench of this Court has already declared the provisions of section 28 of the L imitation Act to be contrary to Injunction of Islam in the case of Maqbool Ahmed v. Government of Pakistan (1991 SCM R 2063). Therefore, claim of appellants' predecessor-in-interest was without any substances.
7. We have heard both the parties' counsel at considerable length and have also carefully considered the relevant record.
8. It may be noted at the outset that section 19 of the Limitation Act deals with the effect of acknowledgement in writing for the purpose of computation of limitation for instituting the proceedings from the time when the acknowledgment has been made in writing i,e, accepting the liability, whereas subsection (2) of section 20 of the Limitation Act directly deals with the receipt of produce of mortgaged land therefore to determine the question of limitation for filing proceedings for redemption of the mortgaged property, this provision of law would be applicable.
9. According to judicial consensus prevailing with the Indian Superior Courts, section 20(2) of the Limitation Act applies only to extend the time for recovery of the mortgage debt and is not an extension of time for redemption. Reference in this behalf may be made to the judgments of Privy Council in the cases of Muhammad Akbar Khan v. Mst.Motai and others (11_2 1947 PC (Lahore) 727), Bhagwan Ganpat v. Madhav Shankar and others (AIR 1922 Bombay 356) and Piroze. Khan and others v. Kanhiya Ram (AIR 1924 Lahore 484). Whereas the opinion of our Courts emerging from the judgment in the case of Abdul Haq v. Ali Akbar (1998 CLC 129) is that where mortgaged land is in possession of mortgagee, receipt of rent or produce of such land under section 20(2) of Limitation Act is deemed to be a payment on account of a debt or of interest under - section 20(1) of the Act, and amounts to an acknowledgment, provided such receipt of rent or produce is before expiration of prescribed period of limitation. The view taken in the judgment of Privy Council noted hereinabove has been distinguished in the case of Abdul Haq (ibid).
10. Thus following the dictum laid down by this Court in the case of Abdul Haq (ibid) it is held that payment of rent or interest by a mortgagee to mortgagor cannot only be considered extension in the limitation for the recovery of said amount but simultaneously, such acknowledgement would also be considered extension in the period of limitation for instituting the proceedings for redemption of the mortgaged property.
11. Learned counsel for the appellants, to advance his case, referred to the judgment in the case of Taj Din and 8 others v, Karim Bakhsh and 11 others (2000 SCM R 1463) and argued that because the suit was not tiled by the respondents or their predecessor-in-interest within the period of 60 years as per Article 148 of the Limitation Act for the redemption of property, therefore, by prescription.
Predecessor-in-interest of the appellants has become owner of the property.
The contention raised by him is not acceptable in view of the distinguishable facts of the case in hand and the reported judgment. Here appellants' predecessor-in-interest on acknowledging the lawful rights of predecessor-in-interest of the respondents acquired the rights of mortgagee from earlier mortgagee namely Abbas Khan vide Mutation No,7961 attested on 2nd March, 1962 with full knowledge that the Abbas Khan is not owner of the property, therefore, after transferring the right by him in his favour, he will have no liaison of whatsoever nature with it and in further he has to interact with the predecessor-in-interest of the respondents being the mortgagor. On making such acknowledgement the appellants' predecessor-in-interest had in fact entered into fresh contract with the predecessor-in-interest of the respondents. Therefore, for this purpose, time for filing the proceedings of redemption shall be deemed to have commenced when he required the rights of mortgagee vide Mutation No,7961 attested on 2nd March, 1962 and merely after the expiry of 15/16 years, the predecessor-in-interest of the appellants was precluded from pleading that he has become owner by prescription, as. Such the judgment relied upon by the learned counsel is distinguishable. Besides it.Admittedly, predecessor-in-interest of the respondents by entering into fresh contract on 2nd March. 1962 has acknowledged the rights of the mortgagor. Therefore, on such acknowledgement the time for initiating the proceedings for redemption shall be deemed to have been extended automatically. Reference in this behalf can be made to the judgments reported as Bachu Lal and others v. Jang Bahadur Rai and others (AIR 1939 Patna 427) and Samar Gul v. Central Government and others (PLD 1986 SC 35).
12. Thus in view of above discussion, we are inclined to hold that as predecessor-in-interest of the appellants by acquiring the mortgagee rights from Abbas Khan on 2nd March, 1962 has entered into a fresh agreement with the mortgagor i,e, predecessor-in-interest of the respondents, therefore, from the date of acquiring of such rights till expiry of the period of the 60 years under Article 148 of the Limitation Act, the appellants cannot claim themselves to be the owner of the land by prescription according to section 28 of the Limitation Act.
13. As far as the question with regard to declaration of section 28 of the Limitation Act contrary to Injunction of Islam by this Court in the case of Maqbcol Ahmed v. Government of Pakistan (1991 SCM R 2063), is concerned, it needs no discussion because said pronouncement would be applicable retrospectively, and the case filed by the predecessor-in-interest of appellants against the respondents for declaration on 28th May, 1979 shall not be effected by this judgment.
Thus for the foregoing reasons, we see no force in instant appeal as such same is dismissed.
Parties are left to bear their own costs.