Malik MUZAFFAR vs MUHAMMAD SHER And Other
The petitioner sought leave to appeal against the dismissal of his civil revision by the High Court, which had upheld the dismissal of his suit for a declaration of title. The petitioner claimed ownership of the suit property based on his status as a mortgagee, asserting that his rights had matured through the efflux of time. The High Court, however, found that the property was subject to an earlier mortgage in favour of a non-Muslim, which subsisted post-1947/48, thereby creating evacuee interest. Consequently, the Custodian was deemed to be in possession of the land in place of the evacuee mortgagee. The High Court further observed that the petitioner obtained his mortgage in 1959 from a mortgagor who lacked the legal right to transfer possession. The Supreme Court affirmed these findings, holding that the petitioner possessed no valid mortgage rights and lacked a cause of action. The suit was correctly dismissed as misconceived, and the petition for leave to appeal was refused.
- Does a mortgagee acquire ownership rights through efflux of time if the mortgagor lacked the legal right to transfer possession?
- What is the legal status of possession when a mortgage involves evacuee property?
- Can a suit for declaration of title be maintained if the plaintiff lacks an existing mortgage right?
ORDER
1. MUHAMMAD AFZAL ZULLAH, CJ. ---Leave to appeal has been sought by a plaintiff against the dismissal by the High Court of his civil revision. It had arisen out of suit for declaration of title against the respondents/defendants to the effect that he being mortgagee of the suit property by efflux of time, had become owner. His suit having been dismissed throughout he also failed in the High Court: leave to appeal has now been sought.
2. It has frankly been stated by the learned counsel that there was an earlier mortgage in favour of non-Muslim which came into effect in 1943 and was a subsisting mortgage till after 1947/48 and that evacuee interest had thus also been created. The learned Judge in the High Court observed that "on the migration to India of the evacuee the custodian is to be deemed to be in possession of the suit land in place of the evacuee mortgagee". The learned Judge also observed that the petitioner/plaintiff on his own showing got the land on mortgage in 1959 when the mortgager himself "admittedly did not have the right to receive the possession of the land". Accordingly it was held that the petitioner had no existing mortgage right either. These findings being formidable, the petitioner had no cause of action to file the suit. It has rightly been dismissed throughout as misconceived. Leave to appeal accordingly is 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.
Cited by 1 case
- Mst. ZARMEWA and 8 others vs KHALIL BAT KHAN and 53 others 1992 SCMR 1804