Pakistan Case LawKh. ALLAH BAKHSH and 5 others Versus GHULAM MUHAMMAD and 11 others
This matter concerns a petition for leave to appeal against the concurrent findings of the trial court, the Additional District Judge, and the High Court, which rejected the petitioners' plaint in a suit for declaration. The petitioners, claiming to be mortgagees of land previously owned by Hindus who migrated to India, sought a declaration that the mortgage was over 60 years old at the time of Independence, thereby extinguishing the mortgagors' rights through prescription. The land had been treated as evacuee property and transferred to the respondents' predecessor-in-interest. The core legal question was whether the petitioners could establish that the mortgage was sufficiently aged to trigger prescriptive rights. The Supreme Court held that the petitioners failed to substantiate their claim regarding the age of the mortgage. Upon review, the Court found that the mortgage was created in 1910, meaning it was not 60 years old at the time of Independence. Consequently, the Court refused leave to appeal, affirming that the petitioners' assertion lacked factual foundation.
- Does a mortgage created in 1910 satisfy the requirement of being 60 years old at the time of Independence in 1947?
- Can a suit for declaration regarding the expiration of a mortgage by prescription be maintained if the mortgage is not 60 years old at the time of Independence?
ORDER
SAAD SAOOD JAN, J.---The petitioners were mortgagees of the land in dispute which was owned by some Hindus who migrated to India soon after Independence. The land was treated as evacuee property and was transferred to the predcessor-in-interest of the respondents against their verified claim. In 1981, the petitioner brought the present suit for a declaration inter alia to the effect that the mortgage was more than 60 years old at the time of Independence and as such by prescription the mortgagees had lost their right in the land before they left Pakistan. Their plaint was rejected by the trial Court and its order in this regard was upheld in first appeal by the Additional District Judge and in revision by the High Court. The petitioners seek leave to appeal from this Court.
2.The learned counsel for the petitioners has not been able to show the date when the mortgage in their favour was created by the non-Muslims. In fact, from petition for special leave to appeal filed in this Court it appears that the mortgage was created in 1910. Thus, the assertion of the petitioners that the mortgage was more than 60 years old on the eve of the Independence has no foundation. Leave is accordingly refused.
Judges on this bench
- Shafiur Rahman2,457 judgments
- Saad Saood Jan2,559 judgments