AHMAD KHAN and others vs ABDUR REHMAN and others

' SARDAR MUHAMMAD RAZA KHAN, J.--- Ahmad Khan (now dead, represented by legal heirs) had filed this petition seeking leave of the Court to appeal from judgment dated 29-4-2003 of a learned Judge in Chambers of Lahore High Court- whereby his Regular Second Appeal was dismissed.

2. Briefly, a property measuring 517 Kanals, 8 Marlas, belonging to one Abdur Rehman and Shah Nawaz, was mortgaged through Mutation No,1631 attested on 21-1-1898, in favour of one Gulbaz Khan father of Ahmad Khan, aforesaid. It was a joint mortgage where Abdur Rehman owned 264 Kanals, 12 Marlas while Shah Nawaz was the owner of 252 Kanals, 16 Marlas. The mortgage amount was Rs,81. Abdur Rehman partially redeemed some property through Mutation No,424 attested on 29-11-1932. Subsequently, he had been mortgaging and redeeming from time, to time but lastly he mortgaged the property in favour of the successors of the same mortgagee through Mutation No,3680 attested on 23-10-1946.

3. He filed a redemption suit, which was partially decreed to the extent of 264 Kanals, 12 Marlas vide decree, dated 31-1-1966 holding that the mortgagor-Shah Nawaz had never redeemed his share so far and to such property the mortgagees-defendants had prescribed title. The respondents' appeal was also dismissed by learned District Judge, Mianwali on-25-4-1968.

4. A Regular Second Appeal No, 724 of 1968 was filed before learned High Court, which remanded the case on 22-9-1997. After remand, the learned District Judge, vide judgment dated 21-5-1998, allowed the appeal and decreed the suit in its entirety, directing the redemption. The mortgagees'

Regular Second Appeal was also dismissed on 29-4-2003 through the impugned judgment and hence this petition.

5. The only point raised by the learned counsel before us was that the share of Shah Nawaz- mortgagor could not be redeemed because the suit qua his share had become time barred and the petitioners/mortgages had prescribed title thereto. Before entering into the legality or otherwise of redemption or prescription, it is pertinent to mention here that the original mortgage was for a period of five years and hence in the instant case the limitation, even if involved, would be 65 years.

6. A perusal of Mutation No,1631 dated 21-1-1898 would clearly indicate that in the order of the Revenue Officer it was never mentioned that the mortgage, in case of Abdur Rehman and Shah Nawaz mortgagors, would operate separately. It was a joint mortgage of 517 Kanals, 8 Marlas on behalf of two persons, simply because they happened to be the co-sharers. Each one would, therefore, be considered as an owner in each and every inch of 517 Kanals, 8 Marlas. Thus, when Abdur Rehman redeemed the property, it would be considered as redemption of not the partial property but of the entire one in partial measurement and on behalf of both the mortgagors. It is needless to repeat that even one of the mortgagors can redeem the property. Thus, redemption Mutation No,424 of 29-11-1932 operated as novation of contract.

7. Further, in the order of the Revenue Officer or in any other column of the mutation it was never mentioned that the total amount of Rs,81 has been shared by the mortgagors and each one was to be burdened with Rs,40 and 8 Annas. The non-mentioning of individual share and non-separation of mortgage amount in the order of Revenue Officer is indicative of joint mortgage, hence the mentioning of share of Shah Nawaz is irrelevant.

8. When the mortgagor redeemed the property through the mutation aforesaid, the mortgagee accepted the property as mortgaged, which is why he agreed to the redemption. This acceptance of mortgage was a clear acknowledgement on behalf of the mortgagee and would give a fresh start to limitation under section 19 of the Limitation Act, 1908. Even otherwise, in a usufructuary mortgage where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land is always deemed to be a payment for the purpose of subsection (1) of section 20 of Limitation Act, amounting to Acknowledgement giving fresh period of limitation. In the instant case, the mortgaged land has remained under continuous physical possession of mortgagee, who had been enjoying the produce thereof since 21-1-1898. It is not necessary to mention the mutation of last Mortgage No,3680 of 23-10-1946 because calculating there from the suit of redemption was even otherwise within time.

9. The legal notion concerning partial redemption has already been determined by this Court in Khair Din v. Ghulam Muhammad 1989 SCM R 688 where 1/4th of the mortgaged property was redeemed within the statutory period of 60 years. It was held that in case of such redemption, time stood extended and the remaining land could be redeemed within a further period of next 60 years.

10. So far as the question of acknowledgement in mortgages is concerned, the conclusion above drawn is supported by our judgment in case of Abdul Haq v. Ali Akbar 1999 SCM R 2531, where it was held that the enjoyment of usufruct and the receipt of produce every time by mortgagee amounts to an acknowledgement giving fresh start to limitation.

11. Consequently, the redemption having rightly been ordered and there being no force in the petition, it is hereby dismissed and leave to appeal refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.