MUHAMMAD HANIF through Legal Heirs and 2 others vs ZULFIQAR ALI and 56

1. SAIDUZZAMAN SIDDIQUI, J.---Leave was granted in the above case to consider the following legal contentions: "2. Contention of the learned counsel for the petitioners is that this has been done relying on the judgment of this Court in "Samar Gull v. Central Movement and others" (PLD 1986 SC 35), but a subsequent judgment of this Court "Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others" (PLD 1991 SC 524) lays down the law to the contrary. The precise contention of the learned counsel for the petitioner is that the mortgage having not been redeemed by the respondents within the prescribed period of limitation they had lost their rights and property became free from all encumbrances and as such was rightly allotted to the petitioners.

3. To consider the contentions, leave is granted. Interim order dated 21-1-1991 shall continue in the meanwhile."

2. ' The relevant facts of the case are that land measuring 83 Canals and 12 Marla's situated in Village Nabban, Tehsil Bhalwal, District Sargodha was allotted to one Muhammad Ishaq against his claim.

3. This allotment w& cancelled on a 'Mukhabari' application filed by one Abdul Majid and Mst.

4. Rukayya by the Additional Settlement Commissioner on 8-10-1976. This land thereafter was allotted in favor of Muhammad Hanif, Abdul Majid and Mst. Rukayya on # 27-4-1977 by the Additional Settlement Commissioner. It appears that the allotment order was not given effect to in the Revenue Record with the result the appellants moved an application on 4-5-1977 seeking compliance of the allotment order dated 27-4-1977 in their favor. The application moved by the appellants was however, rejected by the Deputy Settlement Commissioner (Land) on 13-10-1977 on the ground that the appellants were unable to show that they had any pending claim in the village when the land was allotted to them on R.L-II. The appellants thereafter moved another application before the Dy. Settlement Commissioner (Land) which was allowed by order dated 10-12-1979. The above order of the Dy. Settlement Commissioner (Land) was challenged in Writ Petition No,605-R of 1980 before the Lahore High Court by the respondents whose predecessor had mortgaged the land in favor of the evacuee before partition. The petition was accepted by a learned Judge in Chambers against which leave was granted as aforesaid.

5. ' It is not disputed before us that in the land allotted to the appellants, the evacuee only had mortgagee rights as the land was mortgaged in favor of the evacuee by the predecessor of respondents in the year 1911. The contention of the learned counsel for the appellants is that as the period of 60 years prescribed under the law for redemption of mortgaged property had expired on the date the land was allotted by the Settlement Authorities in favor of the appellants, the right of respondents' predecessor if any in the land as a mortgagor came to an end. It is, accordingly, contended by the learned counsel that in these circumstances the appellants were entitled to get their names entered in the record of rights as full owners of the property. The learned Judge in Chambers, however, did not agree with the contention of the appellants and accepted the petition filed by the respondents holding that the allotment in favor of the appellants was only to the extent of mortgagees right in the land and that the mortgagors who were allegedly in possession of land were entitled to seek redemption of the land in accordance with the law.

6. While there can be no cavil with the finding of the learned Judge in Chambers that what was transferred to the appellants in "the Settlement Authorities was the mortgagees' right of the evacuee in the land, which vested in the Central Government; we are of the view that apart from this question,. The further question arising in the case, whether the mortgagees were still entitled to get the land redeemed from the mortgagor or that their right in the property as mortgagors had extinguished, could not be decided in the above writ petition. We, accordingly, while uphold the impugned judgment to the extent that the appellants were transferred only the mortgagees' right in the land leave open the further questions whether the mortgagor's right of redemption of the mortgaged property has come to an end or that the appellants have become full owner of the land on account of expiry of the period of limitation, to be determined in any appropriate proceedings which may be instituted by the parties before a competent forum. The observations made by the learned Judge in Chambers in the impugned order with regard to the mortgagor's right of redemption of the mortgaged property shall not have any effect on the proceedings which may hereinafter be instituted by any of the parties for determination of their respective rights. With these observations, the petition stands disposed of, accordingly, with no order as to costs.