HAMEEDULLAH KHAN vs GHUALM RASOOL and 41 others
This petition for leave to appeal before the Supreme Court of Pakistan arose from a civil suit seeking a declaration that certain land was free of mortgage charges. The land had been resumed by the Government under the Land Reforms Regulation 1972 (MLR 115) and subsequently allotted to the respondent as a tenant. The trial court dismissed the suit, but the appellate court decreed it in part, a decision upheld by the High Court in its revisional jurisdiction. Before the Supreme Court, the petitioner argued that under Paragraph 13(2) of MLR 115, any existing mortgage charges on surrendered land should be deemed transferred to other land retained by the original owner, thereby preserving the mortgagee's rights. The Supreme Court held that since the issue of shifting the mortgage charge to the remaining property of the declarant was never raised or adjudicated before the lower courts or the Land Commission, it could not be raised at this stage. Consequently, the Court refused leave to appeal and dismissed the petition.
- Does land resumed by the Government under the Land Reforms Regulation 1972 vest in the Government free from all encumbrances and mortgage charges?
- Can a party raise a statutory claim regarding the transfer of mortgage charges under Paragraph 13(2) of MLR 115 for the first time before the Supreme Court if it was never pleaded or adjudicated in the lower courts?
- Which forum has the exclusive jurisdiction to decide questions relating to the consequences of Paragraph 13(2) of MLR 115 on the surrender of mortgaged land?
- Article 185(3), Constitution of Pakistan 1973
- Section 115, Code of Civil Procedure 1908
- Paragraph 13(2), Land Reforms Regulation 1972
- Paragraph 18(a)(ii), Land Reforms Regulation 1972
- Paragraph 18(a)(iii), Land Reforms Regulation 1972
1. ' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred seeking leave to appeal against judgment, dated 29- 6-2001 passed by a learned Single Judge of Peshawar High Court, D.I. Khan Bench, in the revisional jurisdiction.
2. ' The relevant facts for disposal of this petition are that Ghulam Pasool, respondent No,1 herein, instituted a suit in the Court of Senior Civil Judge, Lakki Murwat against the present petitioner and others for a declaration that land measuring 158 Kanals, 6 Marlas situated in village Gulbaz Dehqan, Tehsil and District Lakki Marwat was in his possession as owner and was free of any charge as mortgage in favour of defendants stood already extinguished. It was pleaded that the land was resumed under MLR 115 by order, dated 10-11-1997 passed by the Deputy Land Commissioner, therefore, it was no more under the charge of mortgage and the names of defendants as mortgagee in the Revenue Record be struck off and in the alternate, possession of the suit-land was sought through redemption of mortgage by payment of mortgage money. The suit was contested and the trial Court having diluted upon the pivotal issues, dismissed the suit vide judgment, dated 5-10-1995. Ghulam Rasool, respondent in the present petition, challenged the decree by way of filing an appeal and learned District Judge, Lakki Marwat while setting aside the judgment of the trial Court decreed the suit to the extent of 79 Kanals and 3 Marlas vide judgment, dated 1-10-1998. The petitioner while invoking revisional jurisdiction of the High Court under section 115, C.P.C. Questioned the validity of judgment and decree passed by the Appellate Court and a learned Judge in the High Court having examined the evidence, concluded that the suit-land was surrendered by its owner under MLR 115 and on resumption, the Government allotted the same to the tenants of the land under para.18(a)(ii) and 18(a)(iii) of MLR 115 and accordingly an area of 79 Kanals and 3 Marlas was transferred to Ghulam Rasool by the ,Deputy Land Commissioner vide order, dated 24-8-1994 and Mutation No,101 was sanctioned in his name. The land allotted to Ghulam Rasool was part of the area surrendered by Abdul Sattar Khan its owner and by virtue of section 13(2) of MLR 115 it was transferred free of the mortgage charges to Ghulam Rasool as tenant.
3. ' Learned counsel for the petitioner without disputing the proposition that the land on resumption by the Government would be deemed to be free from all encumbrances or charges and shall vest in the Government without payment of any compensation has contended that by virtue of subsection (2) of section 13 of MLR 115, all encumbrances or charges existing on land surrendered by a person shall be deemed to have been transferred to other land retained by the said person and argued that the rights of mortgagee would not be extinguished. The leaned counsel when confronted that in the suit only a declaration was sought to the effect that the land was free of mortgage charge and the matter relating to the shifting of mortgage charge to the remaining property of the declarant as provided under subsection (2) of section 13 ibid was not in issue in the suit, the learned counsel frankly conceded that no such question was raised or adjudicated at any stage. The learned counsel however, contended that it was incumbent upon the Deputy Land Commissioner at the time of resumption of land to give effect to subsection (2) of section 13 of MLR 115 and further even if it was not pleaded in the suit, still it was the duty of Court of take notice of the said provisions of law to protect the rights in the mortgage. The question relating to the consequences of subsection (2) of section 13 ibid on the surrender of mortgage land being in the exclusive jurisdiction of Land Commission, was essentially to be raised and decided by the Deputy Land Commissioner and further petitioner could also seek a declaration in the suit relating to the rights of mortgagee in the mortgaged land but no such effort was made by the petitioner at any stage before any forum. There is also nothing on record to suggest that an adverse finding qua said right of the petitioner was recorded by any forum. The learned counsel for the petitioner when confronted with this situation, he has not been able to satisfy us that the judgment of the High Court can be assailed on such ground.
4. ' For the foregoing reasons, this petition is dismissed. Leave is refused.