ISMAIL and 22 others vs REHMAT ALI and 15 others

' ABDUL SHAKURUL SALAM, J.---This appeal by leave is against the judgment of a learned Judge of the Lahore High Court in R.SA. No,71 of 1988, dated 23-4-1988.

1. Relevant facts are that the predecessor-in-interest of the respondents filed a suit for a declaration that having remained in possession for more than 60 years they had become owner of the property mortgaged and as a consequential relief decree for possession be granted. It was resisted by the petitioners on the ground that by the date of the suit, land had come in their possession under consolidation proceedings. The suit was decreed by the learned Civil Judge, Sialkot directing the petitioners-defendants to "hand over vacant possession of the suit land to the plaintiffs within a period of two months from the date of this order". This is vide judgment and decree dated 6-11-1986. The petitioners' first appeal was dismissed by the learned Additional District Judge, Sialkot on 6-3-1988 and second appeal by the learned High Court on 23-4-1988.

2. Leave to appeal was granted to consider the contention that the suit of the respondents mortgagees for ownership was incompetent. They could have only filed a suit for foreclosure, on 16-5-1990.

3. Learned counsel for the appellants reiterated the contention.

4. On the other hand, the learned counsel for the respondents submitted that the mortgage admittedly having not been redeemed for a period of 60 years, before passing of possession in consolidation, the respondents were rightly granted the decree.

5. We have heard the learned counsel for the parties. There is no dispute about the fact that the petitioners mortgagors had not redeemed the property within the period of limitation. The appellants, therefore, lost their right to redeem the property.

6. The contention of the learned counsel for the appellant that loss of right to redeem under Article 148 read with section 28 of the Limitation Act has not the effect of entitling the mortgagee in possession to a declaration of his own title is negatived by the decision of the Privy Council in Lala Hem Chand v. Lala Pearey Lal and others AIR 1942 PC 64. Similarly the argument that now that the mortgagee has been dispossessed he cannot be granted declaration of title nor a decree of possession is negatived by the same decision, the relevant observations being as hereunder: "For the above reasons, their Lordships hold that the plaintiffs have established their title to the suit property by adverse possession for upwards of 12 years before the defendant obtained possession of it; and since the suit was brought in January, 1933, within so short a time as two years of dispossession, the plaintiffs are entitled to recover it from the defendant, whose title to hold it if he had any has become extinct by limitation, in whichever manner he may have obtained possession permissively or by trespass."

7. This view has consistently held the field as would appear from Ram Brich Singh and others v. Mt.

Sonjhari Koer AIR 1920 Pat. 538 and Nando Kahar and another v. Sri Bhup Narain Singh AIR 1935 Pat.

164 also.

8. There is no merit in the appeal which is dismissed leaving the parties to bear their own costs.