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Civil Petitions for Special Leave to Appeal Nos. 159 and 160 of 1969, decided on 7th July 1969.
(On appeal from the judgments and orders of the High Court of West Pakistan, Lahore, dated the 12th May 1969, in Writ Petitions Nos. 349/R of 1964 and 697 of 1968, respectively).
[as amended by Displaced Persons Laws Amendment Ordinance (XIII of 1964)], S. 14‑A‑Amendment of S. 14‑A‑Effaces mortgage rights of mortgage and in their stead creates a mere charge over land in' their favour Such mortgage could, therefore, be evicted and allotted delivered possession of land allotted to them.
Muhammad Nawaz Khan and others v. Muhammad Amin and others P L D 1969 La.h. 622 applied.
Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan and another P L D 1962 S C 284 ; Muhammad Yousuf and another v. The Chief
Settlement and Rehabilitation Commissioner, West Pakistan and others P L D 1963 Lah. 590 and Muhammad Ali v. Chief Settle ment and Rehabilitation Commissioner and others P L D 1968 Lah. 1339 ref.
Rafiq Ahmad Khan Bangash, Advocate Supreme Court instructed by Masud Akhtar Sheikh, Attorney for Petitioners.
Nemo for Respondents.
Date of hearing : 7th July 1969.
‑These two petitions raise the question as to whether a mortgage of an evacuee land is entitled to remain in possession of the land until the mortgage 'has been redeemed by payment of the mortgage debt.
The petitioner in Petition No. 159 of 1969 was the mortgage with possession of certain lands in village Fatehpur Kalan, Tehsil Shakargarh, District Sialkot. The amount for which the property was mortgaged was Rs. 9,135. This mortgage was redeemed on the 11th April. 1961, without payment of the mortgage debt and the land was allotted to the respondents in this petition.
The petitioner challenged the validity of this allotment in the High Court .by a writ petition and the High Court, following a decision of this Court in the case of Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan and another (
) issued a writ directing the respondents not to dispossess the petitioner.
During the pendency of the writ petition, however, the law was amended by the Displaced Persons (Land Settlement) (Second Amendment). Ordinance, 1962. This amending Ordinance provided that the allotment under any Scheme would be valid but the land, if it was before the commencement of the Act subject to a mortgage created by an evacuee, would remain burdened with a charge for the repayment of the mortgage debt and where the period of the mortgage had already expired, the mortgage money would have to be repaid within a period of 18 months from the commencement of the said Ordinance.
In the case of Muhammad Yousuf and another v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan and others (
) a Full Bench of the Lahore High Court took the view
That this amendment only meant that the allotment of evacuee lands which are mortgaged with dispossessed non‑evacuees is valid, the mortgage in possession can be dispossessed only after paying the mortgage money to them.
This decision was followed by Ordinance XIII of 1964 which further amended section 14‑A of the Land Settlement Act, by deleting the provision relating to the repayment of the mortgage debt within a period of 18 months and gave this amendment retrospective effect from the beginning.
This amendment came up for consideration before another Full Bench in the High Court in the case of Muhammad Ali v. Chief‑ Settlement and Rehabilitation. Commissioner and others (
) and .it was held that after the amendment of 1964 the mortgage of evacuee lands could no longer claim to remain in possession until the repayment of the mortgage debt. All that they now possessed was a mere charge over the mortgaged property and since such a charge did not create any right or interest in property the mortgage were now liable to be evicted by the Settlement Authorities.
The previous decisions of the High Court of West Pakistan came up again for consideration before a Full Bench in the case of Muhammad Nawaz Khan and others v. Muhammad Amin and others (
) and again the view was taken that the effect of the amendments was to efface the mortgage rights held by Muslim mortgage in the lands of non‑Muslim evacuees and to their stead to create a mere charge on the land to the extent of the mortgage sum The mortgages could, therefore, be evicted to put the allotted in possession of the land allotted to them.
The High Court, relying on the latest Full Bench decision, dismissed the petitioner's writ petition and repelled the contention that after the expiry of the period of limitation prescribed by the amending Ordinance of 1962 the evacuee land mortgaged with Muslim Mortgages could not even be redeemed.
The petitioners in Civil Petition No. 160 of 1969 are also mortgages of evacuee land and they too have not yet been repaid the mortgage debt but their writ petition in the High Court was also disposed of on the basis of the decision by the Full Bench in the case of Muhammad Nawaz.
Learned counsel, appearing in support of these petitions, has contended that this Court should authoritatively decide this question. But having examined the various decisions of the Full Benches of the High Court we feel that no legitimate exception can be taken to the latest Full Bench decision of the High Court in the case of Muhammad Nawaz. The decision appears to us to be correct and it has now settled the law. We are not satisfied, therefore, that any serious question of law has been raised in these cases to warrant the grant of special leave.
Both these petitions are, accordingly, dismissed.
Leave refused.
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