SHUKAR DIN and others vs NAZIR AHMED and others

' Suit land measuring 31 Kanals and 17 Marlas belonging to Khuda Yar, the predecessor-in-interest of Nazir Ahmad, etc. Respondent was mortgaged on 16-10-1916 vide mortgage deed (Exh.P3) to All Muhammad, the predecessorin-interest of Shukar Din, etc. petitioneRs, Mutation No,65, dated 13-4- 1917 (Exh.P2) was attested in accordance with the mortgage deed.

2. Shukar Din, etc. Filed a suit for declaration on 25-11-1978 that by lapse of 60 years they have become the absolute owners of the suit land and this was contested by Nazir Ahmad, etc. A parallel suit was filed by Nazir Ahmad, etc. For redemption of the mortgage against Shukar Din, etc. Both the suits were consolidated. Learned Civil Judge vide judgment dated 17-11-1983 decreed the suit for declaration filed by Shukar Din, etc. And dismissed that of Nazir Ahmed, etc. The judgments and the decrees were challenged in appeal by Nazir Ahmed, etc. The learned Additional District Judge, Sialkot vide judgment and decree dated 12-1-1985 reversed the decree of the learned Civil Judge with the result that the suit of Shukar Din, etc. Was dismissed and that of Nazir Ahmad, etc. Was decreed. Hence the present revision petition.

3. During arguments the case has been brought in narrow campus. Learned counsel for the petitioners has raised two-fold contentions, namely:--

(1) There being two decrees in the two suits, only the decree in the suit filed by Shukar Din, etc. Having been challenged before the Additional District Judge, the other decree not so challenged had become final and thus on this score the respondents were completely ousted from getting any relief; and

(2) If at all any decree was granted in favour of Nazir Ahmad, etc. In the spirit of Order 20, Rule 6 and Order 34, Rules 7, 8 and 9, C.P.C. And the principle laid down in 1980 SCM R 397 (Muhammad Shamshad v. Haji Allah Rakha), only a preliminary decree should have been passed.

' The contentions have been squarely met by the learned counsel for the respondents. He pointed out that the learned trial Court delivered a composite judgment and a composite decree-sheet was drawn up disposing of both the suits. He also tried to fortify his position by the dictum laid down in 1992 SCM R 979 and 1988 SCM R 892. The record indicates that the decree challenged before the Additional District Judge was a composite one and under the same decree-sheet the suit of Shukar Din, etc. Was decreed and that of Nazir Ahmad, etc. Was dismissed. Thus even if the formality of filing another copy of the decree in another suit was not appended with the grounds of appeal it made no difference. Furthermore, the reports relied by the learned counsel go to support the view that when composite judgment is passed and challenged in appeal, there is no procedural illegality and rather the technicalities should not stand in way of the disposal on merits.

He has also correctly pointed out that the objection now being taken had not been taken before the learned Additional District Judge, otherwise the technical defect if at all there could have been removed in the spirit of the rule laid down by the Supreme Court in the reports relied upon by them.

So far as the other objection as to preliminary decree is concerned, the matter need not detain us much. According to the mortgage deed (Exh.P3) the mortgage could have been redeemed on payment of the mortgage money after passage of 12 yeaRs, The period certainly is over. Under section 3 of the Punjab Redemption and Restitution of Mortgaged Lands Act, 1964, when the mortgaged area is less than 50 acres and the mortgage money does not exceed Rs,500 the same can be redeemed without any payment the Collector can grant this relief, why not the Civil Court on me principle of law.

4. Both the contentions raised by the learned counsel for the petitioners are, therefore, rejected. The revision petition stands dismissed.