Ayub Khan brought a suit on 1-2-1973 for declaration that he, along with defendant No. 10, was the owner of the disputed land, inasmuch as the mortgage bad not been redeemed during statutory period of 60 years. This suit was consigned to the Record Room on 19-5-1973 due to the fact that defendants 1, 3 and 4 were in Pakistan Army and a requisition had been received for stay of the proceedings. It was taken up again at the instance of the plaintiff on 23-5-1975 and after that the evidence of the plaintiff had been recorded on 7-2-1977 it so happened that the defendant was not present and the Court invoked Order XVII, rule 3 of the C. P. C. And proceeded to grant a decree for declaration and possession with respect to the suit land. There was an appeal and the case was remanded, vide order of the District Judge, dated 21-6-1977. When the record was received by the trial Court, it proceeded to record the defence evidence, which comprised, as a matter of fact, in the solitary statement of Haqdad Khan (defendant No. 1). Eventually the trial Court, by its order, dated 17-9-1977, granted the decree, prayed for with respect to the half of the suit land and dismissed it with respect to the other half.
2. Two appeals were taken to the District Judge, one by the plaintiff, whereby he required that the entire suit should have been decreed and the other appeal was by the defendants who prayed for the dismissal of the entire suit. The learned Additional District Judge, by his impugned order, dated 5-4-1978, accepted the appeal of the defendant-respondents and dismissed the suit of the plaintiffs. Needless to say that the appeal of the plaintiff automatically failed and was dismissed.
3. Two Revision petitions have been preferred by Ayub Khan (plaintiff), as he is not saisfied with the findings of the learned Additional District Judge, in both the appeals, namely, one filed by himself and the other by the defendants. Since common points of law and facts are involved, I shall dispose of both the Revision Petitions by this judgment.
4. The contention that has been pressed on behalf of the petitioner in both the cases is that he, along with defendant No. 10 was mortgagee for over 60 years and that respondents 1 to 9, though were mortgagors by succession, have only purchased the sub-mortgagee rights, with respect to half of the land, originally mortgaged with him and at the best the plaintiff could be non-suited with respect to half of the land sub-mortgaged but not with respect to the other half mortgage whereof has not been redeemed by the mortgagors so far.
5. Before I enter upon the discussion of the law point involved, I should like to refer to the Revenue Record and then to the statements of the parties before the Court. Without such a recourse it will not be possible to apply the law on the subject.
6. The copy of Jamabandi 1974-75 is Exh. P. W-1/1 on the file and the Goshwara from 1903-04 to 1974-75 is Exh. P. W-2/1. In the jamabandi of 1974-75 respondents 1 to 9 have been shown as mortgagors while plaintiff No. 1 and defendant No. 10 are shown as first mortgages. The column of ownership wherein the aforementioned entry occurs further shows that the mortgagors are second mortgages and Halim Khan who was second mortgagee with respect to half had created a third mortgage in favour of Gul Hassan Shah and Pasham Khan. So far as the column of cultivation is concerned, Haqdad Khan owner mortgagee was in possession of 943 Min, corresponding to 1535, Akbar Ali owner mortgagee was in possession of 945 Min, corresponding to 1536 and Nasim Khan owner mortgagee was in possession of 943 Min, corresponding to 1537. The Go hwara certainly shows that Gulab Shah and Badshah sons of Amin were mortgages in 1903-04 and they were cultivating the entire Khasra No. 943 in that capacity. Jamabandi of 1908-09 shows that Gulab Shah first mortgagee had created a second mortgage in favour of Torima, widow of Samand Khan and that second mortgagee was in possession. The Jamabandi of 1912-13 shows the same position, as far as the column of ownership is concerned, but Sharbat Khan etc. Were recorded as tenants- at-will. In the Jamabandi 1916-17 Sharbat Khan etc. Who were previously shown as tenants-at-will were shown as first mortgages but Tara Chand and Gobind Ram appeared as second mortgages.
The possession was, however, with one Amir Shah tenant-at--will. In the Jamabandi 1920-21 Sharbat Khan and others sons of Gulab Shah were shown as first mortgages and Adrim Khan and Alim Khan sons of Azam Khan as second mortgages and possession was with second mortgages.
In the Jamabandis for the years 1923-24, 1930-31 and 1934-35 the entries were substantially repeated. In the Jamabandi of 1939-40 there was no change in the column of ownership but the names of Adrim Khan and Alim Khan second mortgages were shown in the column of cultivation.
In the Jamabandi of 1943-44 Pasham Khan was added as third mortgagee in the column of ownership and change to this extent also appears in the column of cultivation. In the Janiabandt of 1952-53 the defendants 1 to 9 are shown as owners and second mortgages and the plaintiff and defendant No. 10 as first mortgages. Alim Khan second mortgage's share is shown with Mirmakhela the third mortgagee. Column of cultivation shows the possession of Shah Zaman and Daud Shah as tenants-at-will. The Jamabandis of 1956-57, 1960-61 and 1964-65 repeat the old position, as far as column of ownership is concerned. In the column of cultivation second mortgages and other persons are shown in possession.
7. It will be seen that the Jamabandis eversince 1912-13 to date do not show the possession of the first mortgages or of the plaintiff and defendant No. 10. So to speak the record clarly shows the plaintiff and defendant No. 10 and before them their predecessors to be out of possession.
8. Reverting to the plaint it will transpire (I refer to para. No./ 3) that the disputed land was sub- mortgaged with defendants by plaintiff and defendant No. 10 and the last mentioned persons will be bringing a suit for redemption. They did not allege that they were in actual possession. Their effort was to show that they were in constructive possession through the sub-mortgages. The relief that they claimed was for declaration and it appears that in the head note of the plaint the words ( Urdu Writing)were added at some subsequent stage for paragraph No. 5 of the plaint would not support the contention that decree for possession had also been prayed for. But if it is true that decree for possession was also claimed right from the start then it will mean that the plaintiff and defendant No. 10 were clearly out of possession. As far as the statement of plaintiff, Ayub Khan, is concerned he has deposed that defendants are in possession for the last 15-16 years. Statement of Haqdad Khan would rather show that they were holding the entire land as sub-mortgages for a period exceeding 60 years and that the possession was with them.
8-A. The legal question that now arises is that as to whether or not a person who is a mortgagee for over 60 years but is not in possession can be given the declaration that the rights of the defendants-mortgagors, who were in possession stand extinguished and the title has passed on to the plaintiff-mortgagee. It appears that this question can be answered against the plaintiff by mere reference to section 28 of the Limitation Act which reads :- At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
It will be seen that if defendants 1 to 9 were to bring a suit for possession, the plaintiff could have pleaded section 28 in support of his possession but distinguishing feature of this case is that defendants 1 to 9 being in possession they were not obliged to bring a suit for redemption under Article 148 of the Limitation Act.
9. In support of this proposition reference with advantage can be made to Orr and others v. Sandra Pandia (I L R 17 Mad. 255) wherein their Lordships have held that the law of limitation operates against parties who have been guilty of delay and in favour of persons in possession, inasmuch as, section 28 of V the Limitation Act has no application to persons who are in possession and who have had no occasion to sue for recovery of possession ; Hargovandas Lakhmidas and others v.
Bajibhat Jijibhat and others (I L R 14 Bom. 222) wherein Jardine, J. Has expressedthe view that section 28 ibid does not apply to the case of defendants who rely on an-actual possession which has never been disturbed ; Muhammad Raza Ahmad Khan v. Zahoor Ahmad and others (I L R 52 All.
979) wherein it has been held that section 28 ibid would not apply to persons who, being in actual possession, which has never been disturbed, have had no occasion to sue for the recovery of it, elaborating further that failure, by a person in possession, to institute a suit to have a voidable instrument of transfer set aside does not have the effect of extinguishing the title of the person at whose option it is voidable ; and Gopal Bhaurao Jape v. Jagannath Pundit Vasudeorao Pandit Maharaj (AIR 1935 Bom. 326), wherein Rangnekar, J. Has observed :- Section 3, Limitation Act, refers only to the remedy of the plaintiff and not to his rights, and even though the remedy maybe barred, the right may exist, but it is clear that it does not refer at all to a defendant. The object of the Limitation Act is to prevent a party from putting forward stale or antiquated demands, and I am unable to conceive that a ground of defence can become stale or barred by the law of limitation. All that the Limitation Act does is to take away the remedy of a plaintiff to enforce his rights by an action, and it is open to a defendant to put forward any defence though such defence as a claim made by him may be barred on the date it is put forward. I am supported in this by the observations of their Lordships of the Privy Council in Shri Kishan Lai v.
Kashmiro 1916 P C 172, 20 C W N 957.
10. There is yet another view of the matter and that is that the present is a case in which it was admitted by the learned counsel for the petitioner that his clients had realised more than their mortgage amount. Sher Bahadur Khan, J. Has in R. S. A. No. 33 of 1962, decided on the 5th of March, 1968, observed that where the first mortgagee has already received money which was charged upon the suit property and as such he was left with no interest in the property, the mere fact that his name appears in the Revenue papers as mortgagee would be inconsequential.
11. Before I conclude I should like to notice the contention of the learned counsel for the petitioner that question of limitation could not be taken during Revision. In this connection he invited my attention to Mst. Gul Rasha and another v. Mst. Hayadara and others (1968 SCMR 979). But on a careful reading of the authority it will appear that in that case it was specifically stated in the plaint that the suit was within time and the contention bad not been converted in the written statement nor was any issue framed with regard thereto. The question of limitation was not even raised before the District Judge and it was for this reason that the High Court did not allow such question to be raised at the Revision stage. In the instant case it will be seen that the plaintiff-petitioner had himself raised the question of Imitation and he had taken upon himself to prove that he had become the owner of the suit land by prescription. To this effect an issue was struck and evidence has also been led. It, therefore, seems to me that it B was his duty to prove that he had come for declaration within six years provided by Article 120 and in case he wanted a decree for possession prayer in respect whereof appears to be an interpolation within 12 years as provided by Article 144.
He has, not done so. Rather his admission and revenue record is conclusively against him.
12. On the view of the matter that I. Take, I do not find any force in both the Civil Revisions and will accordingly dismiss both the Civil Revisions without making any order as to costs.