DURRANAI and 35 others vs HAMIDULLAH KHAN and 15 others

SARDAR MUHAMMAD RAZA KHAN, J.--- Admittedly Durranai and others, the petitioners, were the mortgagees of the suit-land which was not redeemed by the respondents/mortgagors within a period of 60 years as provided by Article 148 of the Limitation Act. The mortgagees brought a suit for declaration that they had prescribed title to the suit-land. The learned trial Court decreed the suit but the learned First Appellate Court and the learned High Court non-suited the plaintiffs.

Durranai, etcetera the mortgagees seek leave to appeal from the judgment dated 6-5-2003 of the Peshawar High Court, Peshawar.

2. The learned High Court was of the view that in Maqbool Ahmad's case 1991 SCM R 2063 (incorrectly mentioned in the impugned judgment as Karamat Hussain's case 1991 SCMR 2061, the provisions of section 28 of the Limitation Act were declared repugnant to the Injunctions of Islam with effect from 31-8-1991, and as, the mortgagees had failed to obtain a decree in their favour before 31-8-1991, the title of mortgagors in the property shall not be extinguished. The decree, in fact, was obtained on 2-6-1994.

3. Learned counsel for the respondents supported the aforesaid view that learned counsel for the petitioners differed, contending that, for a mortgagee to prescribe title, it is sufficient that a period of 60 years has expired prior to 31-8-1991 and it is not necessary that he should also have obtained a decree prior to the target date, Article 148 of the Limitation Act runs against a mortgagor and contemplates a suit to be brought by him and not the mortgagee. If a suit is not brought by a mortgagor within 60 years for possession of such property, his right to such property was bound to be extinguished, as provided by section 28 of the Limitation Act. Neither section 28 nor the relevant Article 148 of the Act anywhere provide that, in case of extinguishment of right of the mortgagor, the mortgagee shall automatically become owner. It seems that mortgagees used to bring suits for declaration of title for the ostensible reason that once the right of mortgagor to such prpperty stands extinguished, the mortgagee, as compared to any other person, has a better right to own the property and claim title thereto. This idea cannot be materialized unless, mortgagee brings a suit and succeeds in getting a declaration in his favour.

3. In Maqbool Ahmad's case when section 28 of the Limitation Act, 1908 was declared repugnant to the Injunctions of Islam, a specific date (31-8-1991) was fixed for repugnancy to take such effect.

When no section of Limitation Act declares a mortgagee to become the owner automatically and when he has to prove his better alternative and preferential right, it is incumbent upon him to bring a suit and seek declaration. It is only then that he would be vested with title thereafter.

4. A suit for prescription of title could be fruitful only if mortgagee is fortunate to obtain a decree before 31-8-1991 because, after the aforesaid target date, the right or title of the mortgagor shall not be deemed extinguished. We, therefore, hold that if a mortgagee makes an option to bring a suit for prescription of title, it must be brought so as to obtain a decree before 31-8-1991. A similar view has been taken by this Court in Muhammad Hussain's case 2004 SCM R 1137.

5. It is not denied that in the instant case the mortgagees had obtained decree only on 2-6-1994 when section 28 of the Limitation Act was no more a part of the statute. The learned Appellate Court and the learned High Court, have therefore, rightly non-suited the petitioners/mortgagees.

There being no force in the petition, it is hereby dismissed and leave to appeal refused.