' Khanzad Gul respondent/plaintiff filed Suit No,226/1 of 1995 against Mst. Gul Sarwara and another in the Court of learned Senior Civil Judge, Karak seeking declaration etc. Shafi Muhammad and others had also filed Suit No,19/1 of 1992 against Khanzad Gul and others for possession through redemption of disputed property. Both the suits were contested by rival parties. The learned trial Court after consolidating the suits framed issues and after recording pro and contra evidence of the parties dismissed Suit No,19/1 (Shafi Muhammad v. Khanzad Gul and others) and decreed Suit No,226/1 (Khanzad Gul v. Mst. Gul Sarwara vide judgment and decree dated 12-1-2000. Feeling aggrieved with the said judgment and decree, Shafi Muhammad filed Appeal No,48/13 of 2000 in the Court of learned District Judge, Karak, which was also dismissed vide judgment and decree dated 23-1-2003. Being not contended with the judgments and decrees of the Courts below, the petitioner has filed revision petition in hand.
2. Tlaji M. Zahir Shah, the learned counsel representing the petitioners argued that though the suit property was mortgaged in favor of Niaz Gul and Eidak sons of Mirza in the year 1903. The said mortgagees further mortgaged the property to one Major Tura Baz vide Mutation No,1784. The date of attestation of this mutation is not clear from the record. The sub-mortgagee namely Major Tura Baz redeemed the land in question in favor of Khanzad Gul vide Mutation No,2225 attested on 12- 74942. It was vide Mutation No,2147 that Niaz Gul sold his mortgagee rights in favor of Khanzad Gul.
The said mutation was attested on 19-3-1941. Thereafter, Khanzad Gul sold his mortgagee rights in favor of Gul Sarwara vide Mutation No,2296, but this mutation was rejected on 20-1-1965. The sub- mortgagees in favor of various and redemption of the property in favor of Khanzad Gul had given fresh limitation to the petitioners for filing a suit, therefore, the mortgage for the redemption of which the petitioners filed suit was not a time-barred mortgage. Reliance in this regard was placed on Chaman Khan v. Naqibullah (PLD 1989 Peshawar 107).
3. It was also argued that sections 28 and 148 of the Limitation Act has been declared against the Injunctions of Islam vide judgment reported as Maqbool Ahmad v. Government (1991 SCMR 2063).
4. On the other hand Mr. Amanullah Khan Khattak, the learned counsel for the respondents argued that the sale of mortgage rights or sub-mortgage does not give a fresh start to the limitation.
Reliance in this regard was placed on Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others (PLD 1991 SC 524) and judgment passed in Civil Appeals Nos.788 and 789 of 1997, decided on 17-10-2002.
5. It was further argued that the respondent/plaintiff was in possession of suit property since 1903 and the mortgage in their favor had become time-barred. Reliance in this regard was placed on Islam and 20 others v. Rahmat Ali and 15 others (1993 SCMR 92).
6. I have heard the learned counsel for the parties and perused the record.
7. The question that requires determination is as to whether submortgages created in favor of other persons and their redemption would give fresh start of limitation for filing suit for possession through redemption of mortgage, the answer to this question is in negative. The property in dispute was mortgaged way back in the year 1903 as is clear from Misle Haqiat produced by Gul Shah Was Khan A.D.K. (P.W.2) in favor of Niaz Gul and Eidak sons of Mirza. No doubt the mortgaged property was sub-mortgaged in favor of Major. Tura Baz Khan vide Mutation No,1784 and was redeemed by him in favor of Khanzad Gul vide Mutation No,2225 attested on 12-7-1942. It is also on record that vide Mutation No,2174 attested on 19-3-1942 Niaz Gul sold his mortgagee rights to Khanzad Gul.
Thereafter, Khanzad Gul again sold his mortgagee rights in favbur of Mst. Gul Sarwara vide Mutation No,2294 but the said mutation was rejected on 20-1-1965. The argument of the learned counsel for the petitioner that the sub-mortgages and redemption made by respondents would give fresh limitation to petitioners to file the suit has no force at all. Similar question came up for hearing before the august Supreme Court of Pakistan in Nazif v. Abdul Ghaffar and others (PLD 1966 SC 267) in which it was held:-- "Once a mortgage has been created it remains in existence till it is brought to determination either by operation of some law or by agreement of parties and if it remains unredeemed for the period of limitation provided by the Limitation Act, it matures into ownership."
' In the same judgment it was further held that:-- "From the mere fact that a mutation of a Faq-i-Farzi had been sanctioned when the additional charge was created it could not be inferred from such mutation that the original mortgage had been redeemed and a new one substituted in its place. Rights of parties are affected by their own contracts and conduct and not by the form in which the Revenue Authorities make entries in their register. If the parties do not intend putting an end to the original mortgage the fact that a Faq-i- Farzi is entered and sanctioned is of no significance."
8. Similarly in Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others (PLD 1991 SC 524) it was held:-- "that in order to prove acknowledgment giving fresh start to the period of limitation within the four corners of limitation law relied on the point, such acknowledgment has to be in writing and signed by the person making it to attract section 19 of the Limitation Act, 1908. It was further held that creation of sub-mortgage, unless in writing and signed by mortgagor and proved in Court of law as a fact would not amount to acknowledgment within the meaning of section 19 of the Limitation Act, 1908."
9. Similar view was taken in Zarif Khan and others v. Muhammad and others (PLD 1983 Peshawar 58) which was approved by the august Supreme Court of Pakistan in the above quoted judgment.
10. Very recently in Civil Appeals Nos.788 and 789 of 1997 (Kata Mir and others v, Mst. Shaho Begum and others), decided on 17-10-2002 by the august Supreme Court of Pakistan the above-quoted view was upheld by the august Supreme Court of Pakistan.
11. The judgment cited by the learned counsel for the petitioner i,e, Chaman Khan v. Naqibullah Khan (PLD 1989 Peshawar 107) was in fact based by this Court on Allah Bakhsh v. Member, Board of Revenue (1988 MLD 922) which judgment was not approved by the august Supreme Court of Pakistan in PLD 1991 SC 524.
12. Therefore, keeping in view the dicta laid down by the august Supreme Court of Pakistan in the above quoted judgment I am of the firm view that the sub-mortgages created in favor of other persons and their redemption would not give fresh start of limitation unless acknowledged by the mortgagors in writing and signed by the person making it. The provisions of section 19 of the Limitation Act, 1908 would not, therefore, in absence of the above-mentioned condition be attracted. The Courts below have rightly dismissed the suit as well as the appeal filed by the petitioner.
' I have not been able to find out any misreading/non-reading of evidence, or any material irregularity or any jurisdictional error or defect in the impugned concurrent findings of the Courts of competent jurisdiction. Resultantly, the revision petition is dismissed in limine.