ZANG ALI KHAN and others vs MUEEN KHAN and others

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- This petition is directed against the judgment, dated 30- 6-2006 passed by Peshawar High Court, Peshawar whereby a civil revision, relating to period for redemption of mortgaged property, was allowed setting aside the judgment of Appellate Court and restoring the judgment and decree of trial Court.

2. The facts of the case in brief, are that petitioners filed a suit against respondents' predecessor, Aziz Khan and others, seeking declaration that they, after the expiry of the period of limitation for the redemption of mortgaged/suit property, became its .Owners as the respondents had lost their rights to redeem the same, that the names of respondents as owners of the suit property be cancelled and their names be entered as owners. It was alleged that the suit property was in the ownership of predecessors of both the parties, who jointly mortgaged the same to one Dhana Singh for a sum of Rs,320 vide Mutation No,784 attested on 22-9-1914 and the petitioners predecessor namely, Lawanri Khan redeemed his share in the suit property vide Mutation No,3842 and also redeemed the share of respondent's predecessor in his own name vide Mutation No,3843 on 30-11-1961. The respondents' predecessor was required to redeem his share from Lawanri Khan by 17-3-1994 but he had failed to do so as a result of which his right to redeem the suit property became time-barred. The respondents were asked by petitioners time and again for transfer of ownership of the suit property but they refused to do so, therefore, a civil suit was filed which initially was decreed ex parte in favor of petitioners on 25-10-1984 but the decree was set aside on respondents' application under section 12(2), C.P.C. In consequence thereof, the suit was restored for decision afresh on merits. Later on, the trial Court, on the pleadings of the parties, settled 11 issues and having recorded pro and contra evidence and appraising the same, dismissed the suit.

The petitioners being aggrieved by the said judgment, filed an appeal which was accepted by learned Additional District Judge-I, Kohat vide judgment, dated 7-10-2004 setting aside the judgment and decree of dismissal of the suit of the trial Court dated 19-7-2003 and decreeing it.

Consequently, a civil revision was tiled before the Peshawar High Court which succeeded through the impugned judgment, dated 30-6-2006 and while setting aside the judgment of Appellate Court, the judgment and decree of Civil Court was restored. For a complete understanding of the case and decision of this petition, it will be beneficial to reproduce the relevant observation/ operative portion from the 'judgment of the Peshawar High Court as under:-- "Event otherwise, the Honourable Supreme Court in Sama Gul v. Central Government-PLD 1986 SC 35 had observed that the transfer of mortgage rights in favor of Hindu mortgagor in 1915 who subsequently became evacuee and his mortgagee rights were transferred in favor of the Central Govermnent through mutation attested in 1969 under the Evacuee Laws, would not destroy the rights of non-evacuees owner in land in which evacuee had any right under mortgage and the successor of the owner (mortgagor) continued to have a right to the equity of redemption in the disputed property notwithstanding the acquisition of evacuee interest therein by the Central Government as it merely stepped into the shoes of the evacuee and was vested only with the right of mortgage and nothing else". Therefore, the fresh period of limitation for the purpose of seeking redemption of mortgaged property would be counted from the date of acknowledgment of Tight of equity of mortgage and not from the date of original mortgage; Muhammad Hanif v. Ghulam Rasool 2005 SCM R 1004. The petitioner's 'claim to have become owners of the suit property was premature as the period of limitation of sixty years would start from 30-11-1961, when predecessor of the respondents had acquired right of mortgagee and would continue till 29-11-2021 and they could not claim themselves to be owners of land by prescription according to Article 148 read with section 28 of the Limitation Act, 1908 as the payment of mortgage money by mortgagee to the mortgagor would be considered extension in period of limitation for instituting proceedings for redemption of mortgaged property; Nawaz Ali Khan v. Nawabzada PLD 2003 SC 425. Besides a separate suit for the redemption of suit property as per evidence on the record, pending adjudication in the Court below, is yet to be decided. The Appellate Court, in view of the above, had not properly appreciated the facts/ evidence brought on the record and had incorrectly applied the law and thus had erred in law while decreeing the suit."

3. We have heard the learned counsel for the petitioners and have also gone through the judgment of this Court in Nawaz Ali Khan and another v. Nawabzada and others PLD 2003 SC 425 and Muhammad Hanif and another v. Ghulam Rasool through L.Rs, and others 2005 SCM R 1004. It may be noted that in the case of Nawaz Ali Khan, (ibid), an identical question was involved with regard to extension of period of acknowledgment in terms of section 19 of Limitation Act, 1908 and it has been held that the period of mortgage will be extended from the date of such acknowledgment for the purpose of giving fresh start in a suit of redemption. Relevant para. Therefrom is reproduced hereinbelow:- "Thus, following the dictum laid down by this Court in the case of Abdul Haq (ibid) it is held that payment of rent or interest by a mortgagee to mortgagor cannot only be considered extension in the limitation for the recovery of said amount but simultaneously, such acknowledgment would also be considered extension in the period of limitation for instituting the proceedings for redemption of the mortgaged property."

4. From a perusal of the above observation made by the Peshawar High Court and the pronouncement of this Court in the case Nawaz Ali Khan and another v. Nawabzada and others PLD 2003 SC 425 we are of the opinion that the impugned judgment admits no interference.

Petition dismissed. .