MUHAMMAD GHIASUDDIN vs KHAN ALAM AND OTHERS

ORDER

' KARAM ELAHEE CHAUHAN, J.-The dispute in this case is about an area of land measuring 7 kanals, 11 marlas comprising of Khasra No, 111/ 880 situated in village Togh, Tehsil and District, Kohat. Khan Alam (plaintiff) filed a suit on 16th April, 1968 for a declaration that he was the owner of the aforesaid land and that the evacuee-mortgage concerning that land had duly been redeemed by him and that the land was now free from any such encumbrance. The suit was decreed by the learned Civil Judge, Kohat, on 24th October, 1969.

2. The contesting defendant Muhammad Ghiasuddin (present petitioner) who claimed to be a transferree from some allottee or allottees of this land filed an appeal but without any success as the same was dismissed by the learned Additional District Judge, on 2nd May, 1970.

3. The defendant-petitioner then filed a second appeal being R. S. A. No, 326 of 1970 which also met the same fate and was dismissed by a learned Single Judge of the. Peshawar High Court on 24th May, 1974.

4. The defendant/petitioner has come up in a petition for special leave to appeal against the same to this Court.

5. Learned counsel for the defendant/petitioner has urged that the facts of this case are that this land had remained subject to various mortgages. The first mortgagees of this land were two Muslims Mir Nawaz and Said Shah and the second mortgagee was again a Muslim Ramzan by name. The second mortgagee rights of Ramzan after his death were sold to Ram Chand, Budh Raj and Devi Dass (evacuees) by sale-deed dated 2nd October, 1892. The second mortgagee rights according to him were nothing but the same mortgagee rights of the first set of the mortgagees and therefore, period of limitation for filing an application for redemption was to be counted from the date of the first mortgage. He argued that the first mortgage was of 1888-1889 and therefore applying a period of 60 years for its redemption any application as in this case filed for that purpose on 9th October, 1960 was time barred and could not have been accepted by the concerned Settlement and Rehabilitation Authofities. There can be various answers to this plea.

There is no evidence and this was nobody's case that the first mortgagee rights of Mir Nawaz and Said Shah ever became evacuee property or that they transferred their such rights to any evacuee.

The case in hand pertained merely to the mortgagee rights of Ramzan who of course transferred his rights to Ram Chand, Bodh Raj and Devi Dass as clearly stated in the order of the learned Single Judge. Conversely if the evacuees had acquired mortgagee rights of all the mortgagees then the sale-deed dated 2nd October, 1892 in favour of evacuee which was given effect to in revenue record through mutation No, 827 attested on 5th April, 1893 laid down that for 15 years, thereafter there was to be no right of redemption. Then as held by the learned A Single Judge adding 15 years to 2nd October, 1892, it meant that uptill 2nd October, 1907 there was no right of redemption and that the said right was to accrue only on 2nd October, 1907. Counting sixty years from that date the right of redemption was available upto 2nd October, 1967 whereas in this case the application for redemption was filed on 9th March, 1960, and the full mortgage money was paid on 10th March, 1960, though the learned A. R. C. Actually directed the redemption on 8th June, 1966 (still within limitation). However, if the earlier mortgages were separate and independent transactions different from the mortgagee rights of Ramzan and his successors in interest namely evacuees then the aforesaid B earlier mortgagee rights were of Muslims and not of evacuees and the plea raised in this way would be of no avail to the petitioner (and this appears to be the correct position and is so highlighted by the learned Single Judge). Looked at from whatever angle the point raised by the learned counsel (which even otherwise has no support from the record) cannot help his client in any manner and will not warrant any change in the orders impugned before us.

6. The next point argued was that the Rehabilitation and Settlement Authorities had no jurisdiction to redeem such a mortgage because according to the learned counsel it was only the Custodian of Evacuee Property appointed under the Pakistan (Administration of Evacuee Property) Act, (XII of 1957) who alone could have done so. The point does not seem to have been taken in this form before any of the Courts C below and therefore it cannot be allowed to be urged for the first time before us.

7. The result is that this petition has no merit and is dismisse.