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Civil Revision No. 146 of 1959, decided on 27th March 1964.

Arts. 144 & 148‑Mortgage‑--Co‑mortgagor redeeming whole mortgaged property‑Position that of charge‑holder‑Suit by another co‑mortgagor for possession of his share‑Governed by Art. 144 and not 148‑Possession of such defendant co‑mortgagor‑Adverse only‑ on open assertion of exclusive title by him.

Sham Lal and another v. Chhaju Rao A I R 1941 Lah. 53 and Shah Ram Chand v. Pandit Parbhu Dayal and others A I R 1942 P C 50 held not applicable.

Basanta v. Dhanna Singh and others A I R 1920 Lah. 234; Narain Das v. Sera/ Din and others A I R 1926 Lah. 238; Jhandu v. Nur Muhammad and others A I R 1931 Lah. 744 and Mst. Radha v. Ajudhia Parshad and others A I R 1933 Lah. 91 rel.

Sh. Abdul Majid for Petitioner.

Abdul Latif Khan for Respondent.

Date of hearing: 27th March 1964.

This revision petition is directed against the judgment and decree dated the 22nd of April 1959, of the learned Senior Sub -Judge, Kohat, whereby he only partially accepted the appeal of the present petitioner‑defendant Behram Khan against a prelimi nary decree granted by the trial Court in favour of the respondent Khawas Khan in a suit for possession of land by redemption of a mortgage. The trial Court bad fixed the amount of mortgage money at Rs. 106, whereas the learned Senior Civil Judge considered that the amount should be Rs. 126‑8‑0.

2. 74 kanals and 14 marlas of land situated in village Togh Bala, Tehsil and District Kohat, were mortgaged by one Faqir Khan n favour of one Sukha Singh under mutation No. 1152 attested on the 15th of May 1897. The mortgagee rights were inherited by Sawan Singh, Jagat Singh Gur Bakhsh Singh and Amreek Singh, whereas the equity of redemption was purchased by Shahzada Muhammad Alam Jan who was, in due course, succeeded by his son Shahzada Taimur Jan. Shahzada Taimur Jan sold the equity of redemption in respect of 7 kanals and 13 marlas to the present petitioner Behram Khan. It seems that due to consolidation proceedings the remaining area in the hands of Shahzada Taimur Jan was reduced to 58 kanals and 19 marlas. This area was exchanged by Shahzada Taimur Jan with the plaintiff‑respondent Khawas. On the 7th of March 1957, Behram Khan applied to the Assistant Custodian of Evacuee Property for redemption of the mortgage in respect of his 7 kanals and 13 marlas of land, but the learned Assistant Custodian redeemed the entire area in favour of Behram Khan, presumably for the reason that partial redemption by a co‑mortgagor could not be permitted under section 60 of the Transfer of Property Act. This order of the learned Assistant Custodian is dated the 10th of June 1957. Behram Khan was directed to pay an amount of Rs. 141‑10‑0 as mortgage money.

3. On the 8th of April 1958, the respondent Khawas institu ted the present suit against Behram Khan for the redemption of the area which he had obtained in exchange from Shahzada Taimur Jan, namely, 58 kanals and 19 marlas. On the plead ings of the parties the following issues were framed by the trial Court:‑

(1) Whether the defendant has become the owner of the suit land by prescription

(2) In case issue No. 1 is not proved, whether the exchange in favour of the plaintiff is fictitious and fraudulent

(3) In case issue No. 2 is not proved, is the plaintiff entitled to redeem the land, if so, what is the mortgage charge

(4) Whether the costs of the litigation instituted by the defendant in the Court of the Custodian are a charge on the suit property

4. The suit was tried by Mr. Muhammad Inam, Sub‑Judge of the First Class at Kohat. He came to the conclusion that the suit was within time, that the exchange in favour of the plaintiff-respondent Khawas was genuine, being evidenced by a registered deed dated the 19th of March 1958, and that the proportionate charge payable by the plaintiff was only Rs. 106, the defendant not being entitled to recover the expenses incurred by him in respect of proceedings before the Assistant Custodian of Evacuee Property. On these findings, he decreed the plaintiff‑respondent's suit for possession of the land on payment of a sum of Rs. 106. As already stated, the learned Senior Civil Judge, acting as appellate Court, has maintained the decree of the trial Court, expect with the modification that the plaintiff has to pay his proportionate share of the amount awarded by the Assistant Custodian, which works out to Rs. 126‑8‑0.

5. The only point raised in revision by Mr. Abdul Majid Khan, the learned counsel for the petitioner, is that the suit of the plaintiff‑respondent was barred by time, having been brought more than sixty years after the original mortgage was created on the 15th of May 1897. It is contended by the learned counsel that under section 92 of the Transfer of Property Act the present petitioner stands subrogated to the rights of the mortgagee whose mortgage he has redeemed through the Assistant Custodian of Evacuee Property and for that reason the limitation is to be governed by Article 148 and not by Article 144 of the First Schedule to the Limitation Act. In support of his contentions the learned counsel has placed reliance on Sham Lal and another v. Chhaju Rao (A I R 1941 Lah. 53) and Shah Ram Chand v. Pandit Parbhu Dayal and others (AIR 1942 P C 50).

6. The two authorities cited by Mr. Abdul Majid Khan are not directly applicable to the facts of the instant case, as the question of limitation, as raised in this case, was not before their Lordships. On the other hand, Mr. Abdul Latif Khan, the learned counsel for the plaintiff‑respondent Khawas has referred to several authorities in which the question of limitation in a case of the present kind was directly raised and decided. These cases are Basanta v. Dhanna Singh and others (A I R 1920 Lah. 234), Narain Das v. Seraj Din and others (A I R 1926 Lah. 233), Jhandu v. Nur Muhammad and others (A I R 1931 Lah. 744) and Mst. Radha v. Ajudhia Parshad and others (A I R 1933 Lah. 91). In these cases the view has been consistently expressed that "the position of co‑mortgagor who redeems the whole of the mortgaged property is that of a charge‑holder and that a suit by another co‑mortgagor for possession of his share is governed by Article 144 and not q by Article 148. The possession of such co‑mortgagor becomes adverse only when there is any open assertion of an exclusive title by him".

7. The learned counsel for the petitioner has not been able to adduce any sound reason to show why the consistent view adopted in the authorities relied upon by Mr. Abdul Latif Khan should not be followed in the instant case. That being so, it is clear that the suit instituted by the respondent Khawas within one year of the redemption of the mortgage in favour of the present petitioner was within time, and no interference is called for in revision. The revision petition, is, therefore, dismissed, but in view of the legal question involved, the parties are left to bear their own costs.

K. B. A. Petition dismissed.

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