This civil revision assails judgment and decree dated 14.11.1994 passed by Additional District Judge, Nankana Sahib, whereby suit filed by the respondents was decreed, reversing judgment and decree dated 6.3.1991 passed by the trial Court.
2. A short factual background of the case is that one Fattu, an owner of land measuring 38 Kanals 4 Marlas of village Sarab Khurd, Tehsil Nankana Sahib, District Sheikhupura mortgaged it with two non-Muslims mamely, Jagat Singh and Jhanda Singh, who subsequently sold their mortgagee rights to Baqir and Shakir, predecessors-in-interest of the respondents through Mutation No, 24 dated 15.11.1920. Respondents being successors of mortgagees filed a suit for declaration against Allah. Ditta predecessor-in-interest of the petitioners that they be declared owners of the said land, as land mortgaged by their elders was not redeemed within a period of 60 years and their right to redeem it, has foreclosed by lapse of time and thus they have become owners in possession of the land. They also prayed a relief for permanent injunction as consequential relief restraining the petitioners from alienation of the land in question and from interfering into their possession there over.
3. Petitioners being defendants in the suit, resisted it, by controverting the allegations in the plaint and besides raising certain preliminary objections, denied mortgage of the land and claimed the Mutation No, 24 dated 15.11.1920 to be fraudulent. They also denied the possession of the respondents. Controversial pleadings of the parties necessitated framing of the issues and recording of evidence of the parties. After doing the needful, the learned trial Judge on the basis of his appraisal of evidence, dismissed the suit of the Respondents on 6.3.1991.
4. Respondents aggrieved of the decision of the trial Court dated 6.3.1991 filed an appeal before the Additional District Judge, Nankana Sahib, who accepted the same on 14.11.1994 and granted them the decree prayed for, holding that respondents have proved their possession over the land in question which was mortgaged on 15.11.1920 and the land having not been redeemed, right of the mortgagers, in this behalf, has foreclosed. Petitioner have now come up before this Court in revisional jurisdiction, for setting aside judgment and decree impugned, passed by the appellate Court.
5. Learned counsel for the petitioner submits that since Section 28 of the Limitation Act, 1908, has been declared to be against the injunctions of Islam by the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan in the case of Maqbool Ahmed vs. Government of Pakistan (1991 SCM R 2063) suit of the respondents could not have been decreed. He further submits that plea of lapse of time under Article 148 of the Limitation Act, 1908, can be used as a defence, but it cannot be made basis' of a title for maintaining any suit. Learned counsel for the petitioners argues that there is no proof on the file as to when the land in question was mortgaged to the non- Muslims and in absence of such an evidence, it could not be determined whether right to redeem the land has foreclosed or not. He further adds that purchase of mortgagee rights by the respondents, if any, is also not proved on the file and in a way according to him, respondents had claimed ownership through prescription which has been declared repugnant to the injunctions of Islam and in this manner prayed that judgment and decree passed by the appellate Court may be set aside and suit by the respondents be dismissed.
6. As against the arguments of the learned counsel for the petitioners, Respondents counsel controverted their submissions and supporting the judgment and decree of the appellate Court,, relied on the judgment given by the Honourable Supreme Court of Pakistan in the case of Kata Mir and others vs. Mst. SHO Begum and others (PLJ 2003 S.C. 412) and on another judgment in the case of Ismail and 22 others vs. Rehmat All and 15 others (1993 SCM R 92) to contend that suit not filed within a period of 60 years by the mortgagor, his right to property is lost and the mortgagee in possession would become owner of the property.
7. I have considered the arguments of the learned counsel for the parties and have examined the record appended herewith. Documentary and oral evidence on the file shows that predecessor-in- interest of the A respondents and then the respondents themselves are in continuous undisturbed possession of the land in question since sanctioning of Mutation No 24 dated 15.11.1920, which is a period more than 60 years and this land till today has not been redeemed. Under Article 148 of the Limitation Act, 1908 right to redeem the land mortgaged, after 60 years, stand extinguished and the petitioners cannot claim ownership or redemption of the land forming part of the mortgage.
Argument of the learned counsel for the petitioner that there is no proof of mortgage of the land in favour of non-Muslims i,e, Jagat Singh and Jhanda Singh, has no worth in it because period even if calculated from the date of purchase of mortgagee rights by Baqir and Shakir, predecessors-in- interest of the respondents, right to redeem the land has already foreclosed by lapse of time. In a similar situation, the Honourable Supreme Court in its alighted judgment in the case of Ismail and 22 others (supra) while interpreting the provisions of Section 28 and Article 148 of the Limitation Act, 1908, very candidly mandated that property mortgaged with possession not redeemed for a period of 60 years, mortgagors lose their right to redeem it besides losing their title to hold it. In this judgment, as well, mortgagees were the plaintiffs and being in possession of the land mortgaged, were granted decree for declaration, as prayed by them. In this precedent case, the mortgagees were declared to be owners of the property under their possession. View taken by the Honourable Supreme Court of Pakistan in the case of Ismail and 22 others (supra) was reaffirmed in the case of Kata Mir and others (supra). In this case as well, suit of the mortgagees was decreed and they were declared to be owners after lapse of 60 years from the date of mortgage. The Honourable Supreme Court of Pakistan has very graciously considered the impact of earlier judgments reported as Ismail and `22 others vs. Rehmat Ali and 15 others (1993 SCM R 92) in Kata Mir and others vs. Mst. SHO Begum and others (PLJ 2003 S.C. 412).
8.The above referred judgments of the Honourable Supreme Court are complete answer to the arguments of learned counsel for the petitioners that plea of lapse of time under Article 148 of the Limitation Act cannot be used as a basis of title. As regards the other submission of the learned counsel that provisions of Section 28 of the Limitation Act have been declared as repugnant to the injunctions of Islam by the Honourable Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Maqbool Ahmed vs. Government of Pakistan (1961 SCMR 2063), I respectfully find that in this judgment limitation for getting back possession from an illegal occupant was held to be no bar, but in the instant case the respondents are not illegal occupants and they have not claimed any adverse possession against the petitioners. Petitioners themselves have parted with possession of the land and did not opt to have it redeemed within the prescribed period of limitation. Articles 147 and 148 of the Limitation Act, 1908, still exist on the statute book and have neither been repealed nor have been adjudged as contrary to the injunctions of Islam by the Honourable Federal Shariat Court or Shariat Appellate Bench of the Supreme Court of this country and thus those will have their impact. Petitioner's right to redeem the land mortgaged, foreclosed in the year 1980, but they did not take any step within the time allowed by law and by mere saying that Mutation No, 24 dated 15.11.1920 is fraudulent, effect of it cannot be wiped out especially when this mutation was duly incorporated in the revenue record and became part of all the successive Jamabandis after 1920. There is no evidence on the file, worth the name, to show that land in possession of the respondents was not mortgaged by the owners.
9. Facts and circumstances of the case of Ismail and 22 others and Kata Mir and others (supra) are quite similar to those in the case in hand and thus I respectfully following the consistent view taken by the Honourable Supreme Court of Pakistan and for the reasons discussed above. hold that appellate Court has rightly granted the respondents a decree I prayed for and it has committed no illegality or irregularity in exercise of its I jurisdiction. No misreading or non-reading of evidence on the file or misapplication of law is shown to have been committed by the appellate Court, in absence of which no interference is called for by this Court in revisional jurisdiction and consequently this revision petition having no merit in it, is dismissed, leaving the parties to bear their own costs.