Haji SULTAN YOUSAF vs Haji SHER AFZAL KHAN AND 4 OTHERS
This matter concerns a petition for leave to appeal against an order of the Peshawar High Court, which dismissed a writ petition challenging the redemption of mortgaged land. The core legal question was whether a mortgage agreement, which extended a redemption period to 1987, precluded the subsequent redemption of the land by a new purchaser, and whether the lower courts erred in allowing such redemption. The Supreme Court held that the petitioner failed to demonstrate that the mortgage arrangement imposed an absolute prohibition on redemption before the agreed date. Furthermore, the Court affirmed the High Court's reliance on the local Riwaj-e-Aam, which prohibits land mortgages exceeding four years. Since the subject mortgage exceeded twenty years, it was legally invalid under local custom. Consequently, the Court found no error in the lower courts' exercise of jurisdiction in permitting the redemption. The petition was dismissed, establishing the principle that contractual terms regarding mortgage duration are subject to, and cannot override, established local customary laws (Riwaj-e-Aam) governing land tenure and redemption rights.
- Does a private agreement extending a mortgage period override local customary law (Riwaj-e-Aam) regarding maximum mortgage duration?
- Can a mortgage exceeding the duration permitted by local custom be enforced to prevent redemption?
- Is a High Court order dismissing a writ petition in limine sustainable if the underlying decision is based on valid local custom?
ORDER
' MUHAMMAD AFZAL CHEEMA, J.-The petitioner feels aggrieved by the order of a D. B. Of the Pesha war High Court, dated 7-2-1974, whereby Writ Petition No, 195 of 1973 filed by him against the order of the Commissioner, F. C. R., Malakand Division, dated 13-8-1973 was dismissed in limine.
2. Muhammad respondent No, 2 mortgaged a piece of land in village Gandi Gar, Dir District with Sultan Yousaf petitioner herein for a period of 20 years. A few years later, the wife of Muhammad brought a suit for the redemption of the land In the Court of the A. D. M., Malakand. The matter was referred to a Jirga but the parties compromised, the petitioner paid an additional amount of Rs, 1,500 to respondent Muhammad and the period of 20 years was further extended till 13-2-1987. The suit was disposed of in terms of the compromise by the A, D. M., Malakand. Subsequently, however, Muhammad respondent No, 2 sold the same land to Haji Sher Afzal Khan Respondent No, 1 who moved the Court of the A. D. M. For redemption of the same. With the consent of the parties, the matter was again referred to a Jirga which recommended that the land may be redeemed by respondent No, 1 on payment of Rs, 3.500 to the petitioner in addition to the cost of the building raised by him. The suit was decreed by the A. D. M., Malakand, who accepted the recommendation of the Council-of Elders. Having unsuccessfully failed in revision before the Commissioner, F. C. R., Malakand and in writ jurisdiction before the High Court, the petitioner has moved the present petition for leave to appeal.
3. Learned counsel could not satisfy us that toe fresh arrangement between the petitioner and respondent No, 2 imposed a complete prohibition on the redemption of the land before 13-2-1987.
In fact he could not even challenge on the legal plane the view taken by the High Court on the basis of the Riwaj-e-Aam obtaining in the locality that there was complete prohibition on the mortgage of a piece of land for more than four years. The mortgage in question being for more than 20 years was obviously hit by the Rlwaj. In the circumstances, therefore, no fault can be found with the High Court's order which rightly held that the orders passed by the A. D. M., Malakand, were passed in proper exercise of the jurisdiction vesting in him. The petition is, therefore, dismissed.