ABDUL HANAN AND 8 Others vs KAPOOR KHAN AND 16 Other
This appeal by special leave before the Supreme Court of Pakistan addressed whether a redemption suit for a 3/5th share of land was barred by limitation. The concurrent findings of the lower courts established that the mortgage took effect on 19-2-1899 when mutation No. 44 was attested based on statements by the mortgagor's sons, making the suit filed on 19-2-1959 within the sixty-year limitation period. The appellants contended that limitation began earlier on 1-11-1897, relying on a Patwari's report regarding Girdawari. The Supreme Court held that the Patwari's report alone did not constitute evidence of a completed mortgage transaction, as the original transaction remained inchoate until the mutation was attested in 1899 following the mortgagor's death. Consequently, the suit for redemption was filed within time. The appeal was dismissed with costs, affirming that limitation for redemption runs from the date the mortgage officially takes effect through proper attestation rather than prior inchoate entries.
- Whether a suit for redemption of mortgaged land is barred by time if filed within sixty years from the date of attestation of mutation?
- Does a Patwari's report regarding Girdawari constitute sufficient evidence of the creation of a mortgage for the purpose of computing limitation?
- When does limitation start to run for a redemption suit where the initial mortgage transaction remained inchoate prior to formal mutation?
- Article 148, Schedule I, Limitation Act 1908
ORDER
1. MUHAMMAD YAQUB ALI, J.-The short question arising in this appeal by special leave is whether the suit brought by the respondents for redemption of 3/5th share of land included in Khata No. 465 in village Garh Munara, tehsil Swabi, district Mardan, is barred by time.
2. The Courts below have concurrently held that the mortgage in favour of Abdul Karim, the predecessor-in-interest of the appellants, took effect from 19-2-1899 when mutation No. 44 was attested by the Revenue Officer on the basis of the statement made by the sons of Zaffar Khan, the first mortgagor of the land. The suit filed on the 19th February 1959, was in that case clearly within time as provided in Article 148, Schedule I of the Limitation Act. The appellants, however, relied on the report by the Patwari on 1-11-1897 that in the course of carrying out Girdawari of crops he was informed that the land comprised in the suit herein was mortgaged by Zaffar Khan to Abdul Karim for the sum of Rs. 114 and that possession had been delivered to the mortgagee. It was contended, accordingly, that the limitation started to run from 1-11-1897, and the suit brought on the 9th February 1959, was beyond the prescribed period of sixty years.
3. No evidence other than the report of the Patwari, referred to above, was brought by the appellants on the record to subs--tantiate their claim. The entry by itself did not constitute evidence of the mortgage allegedly created by Zaffar Khan in favour of Abdul, Karim. The report does not even purport to be based on the statement made by either of them. Further it transpires that Zaffar Khan died on some date after 1897 and the, mutation was attested on 19th February 1899, on the basis of the statement made by his sons. The transaction entered into by Zaffar Khan with Abdul Karim prior to 1-11-1897 having thus remained inchoate the mortgage which held the field all along was created on 19-2-1899 on the basis of the statements of the sons of Zaffar Khan. The suit brought by the respondents for redemption of the land was thus well within time and was rightly decreed by the Courts below.
4. No other argument was addressed by the counsel for the appellants in support of the appeal which is dismissed with costs.
Cited by 3 cases
- Khan Afsar vs Mst. Qudrat Jan (widow) and others 2023 PLD Supreme Court 359
- Khan Afsar vs Mst. Qudrat Jan widow and others, Abdul Latif and others 2023 SCP 101
- Khan Afsar vs Mst. Qudrat Jan widow and others 2023 PLJ SC 456