MUHAMMAD LUQMAN vs ALLAH DIWAYA and otherss

ORDER

' M. JAVED BUTTAR, J.--- The petitioner, Muhammad Luqman, a transferee of part of the land in dispute, which was treated as an evacuee property, through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has sought leave to appeal against judgment dated 26-10-1999 whereby a Division Bench of the Lahore High Court, Multan Bench, accepted Writ Petition No,13/R of 1990, instituted by respondents 1 to 14 (hereinafter referred to as the landowners) and declared that the pplication dated 30-9-1963 filed by landowners before the Collector, odhran under the West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), for the redemption of the land in dispute was within time and shall be deemed to be pending before the Collector, Lodhran who shall decide the same in accordance with law, in the light of the observations made in the said judgment.

2. The relevant facts are that vide Mutation No,21, sanctioned on 14-12-1920 the predecessors of landowners mortgaged and measuring 276 Kanals and 4 Marlas situated in Mouza Thatti Sameeja, Tehsil Lodhran, District Multan for a sum of Rs,2,200 in favor of Arrora Mal and others evacuees. On 30-9-1963 the landowners (respondents 1 to 14) filed abovesaid application for redemption of mortgage and restitution of the property before the Collector, Lodhran. The Special Qanungo Alauddin, after tracing history, reported on 4-10-1966 that the land was mortgaged in the manner stated by the landowners, and being within time, it was redeemable on payment of Rs,2,200. He also made a similar statement in Court on 6-2-1967. The Collector, however, with reference to Memos. Nos.6883-59/7042-R(P) dated 8-12-1959, 1980-60/1480- R(P), dated 22-4-1959 issued by the Chief Settlement Commissioner and 4135/HC(R), dated 15-7-1959 issued by Deputy Commissioner, Multan dismissed the application on 1-6-1970 as being incompetent, on the ground that the land had since been transferred in favor of Central Government vide Mutation No,943 sanctioned on 24-12-1962. The Additional Commissioner (Revenue), Multan Division vide his order, dated 17-7-1970 passed on an appeal of the landowners, remanded the case to Deputy Rehabilitation Commissioner, Multan for disposal as Deputy Custodian. However, their application for permission to deposit the mortgage money of Rs,2,200 for the purposes of redemption of mortgage, was allowed by the Collector on 3-1-1973 and the money was deposited vide challan dated 4-1-1973. The same Officer, in his capacity as D.S.C(L) took up the matter again and vide order, dated 19-12-1973 dismissed the application for redemption bolding it to be barred by time.

This order was passed on the statement of Raja Khushi Muhammad, another Special Qanungo who stated on 19-12-1973 that he was not able to trace the original mutation of the mortgage but according to the entries in Jamabandi for the years 1887-88 it appeared that one Tahir son of Manjhi had mortgaged an area of 149 Kanals and 1 Marla for Rs,154 in favor of Bowani Mal Ranjha and there onwards he traced further history backward upto 1904. The landowners assailed the order dated 19-12-1973, through an appeal before the Additional Settlement Commissioner (L), Multan who vide his order dated 6-6-1975, dismissed the same as incompetent. They then preferred the petition before the Board of Revenue, Punjab on 30-8-1975 for declaration that the land stood redeemed on account of deposit of mortgaged money on 4-1-1973. The landowners also filed a Revision Petition No,3 of 1975, on 9-9-1975, under section 43 of the Pakistan (Administration of Evacuee Property) Act XII of 1957 before the Custodian who vide his order dated 28-2-1990 dismissed the said petition due to lack of jurisdiction. The landowners, thereafter, invoked the Constitutional jurisdiction of the Lahore High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which as mentioned above, was allowed on 26-10-1999. The application for redemption of the mortgage was held to be within time and the Collector was directed to decide the same in accordance with law. This finding of fact was recorded by a Division Bench of the Lahore High Court, through a detailed judgment after hearing learned counsel for the parties and after going through the available record.

3. It is submitted by the learned counsel for the petitioners that mortgage in hand was created prior to 1887-88 as is evident from the statement of Khushi Muhammad, Special Qanungo, therefore, the application for redemption of the mortgage was clearly barred by time. He has frankly admitted before this Court that this Court comes to the conclusion, as concluded by the High Court that mortgage was created on 14-12-1920 then he would be out of the Court. He has correctly not tried to make any submission against the settled legal issue, discussed in paras.5 and 6 of the impugned judgment that a notification issued under section 4 of the Displaced Persons (Land Settlement) Act XLVII of 1958, of vesting of property in Central Government did not destroy the rights of non-evacuees in the land in which evacuees had some rights under the mortgage, the transferees/allottees of such merely stepped into the shoes of evacuees the rights of the Muslim owners of equity of redemption were not extinguished and the allottees and transferees of such land were merely the allottees/transferees of the rights/interest which were enjoyed by the evacuees and not beyond that and in such-like cases only mortgage rights, which were enjoyed by the evacuees, were transferred.

4. The prescribed period of limitation under Article 148 of the Limitation Act (IX of 1908) for the redemption of the mortgage was 60 years. Mortgage was created on 14-12-1920. The application for redemption dated 30-9-1963 was therefore, in time. The argument of the learned counsel that mortgage was created prior to 1887-88 and not on 14-12-1920 has no force. Reference, in this regard to the statement of Khushi Muhammad, Special Qanungo, is of no avail. High Court has correctly held that this statement relates to some other land and not the land in dispute. The land in dispute measures 276 Kanals. Whereas Khushi Muhammad, Special Qanungo stated about some mortgage over an area measuring 149 Kanals and 1 Marla for Rs,154. The previous report of Special Qanungo Alauddin dated 4-10-1966 and his statement dated 6-2-1967, before the Collector, referred to the land in dispute and it was brought on record that the mortgage in hand was created on 14-12-1920, The said statement on the basis of available record, has been correctly adopted by the High Court and it has been correctly held that the application dated 30-9-1963 filed by the landowners before the Collector, Lodhran for the redemption of the land in dispute under the West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), was in time and the same shall be deemed to be pending before the Collector, Lodhran for its decision on merits, in accordance with law.

5. In view of the above mentioned we find no merit in this petition. Even otherwise the controversy in hand is merely factual in nature and does not involve any question of law. The petition is, therefore, dismissed and the leave is declined.