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Revision Side No. 11 of 1953‑54, decided on 5th December 1954, District Sialkot,

S. 4‑Mortgage should be subsisting on date of application‑Onus ‑‑After expiry of 60 years application not competent.

The law as it stands is that the period allowed for redemption under the ordinary law is 60 years from the date of the mortgage and after the expiry of that period the right to redeem is extinguished under section 28 of the Limitation Act.

It should be definitely proved that the mortgage was subsisting at the time when the application for its redemption was made.

Application made after expiry of 60 years since execution of mortgage was therefore not competent.

Onus of proving that the mortgage subsists on date of application is on the mortgagor.

Where onus was not rightly placed, case was remanded for fresh evidence and decision.

Asad Husain Zaidi, for Petitioner.

Zahoor Ilahi, for Respondent.

‑The facts of this appeal briefly are that on 22nd February 1949, Allah Din respondent made an application under the Restitution of Mortgaged Lands Act (IV of 1938) for restitution of the mortgaged land in dispute measuring 49 kanals 2‑ marlas. The petitioner Chiragh Din, who was the mortgagee, raised an objection before the Collector that the mortgage was more than 60 years old, and was no longer subsisting at the time under article 148 of the Indian Limitation Act ; it was, therefore, for the mortgagor to prove that the mortgage in fact was in existence. The respondent relied on entries in the Revenue Records for the year 1892‑93, which showed that the land was mortgaged, but there was no available evidence to show when it came into existence. The application of the mortgagor was dismissed by the Collector, but on appeal, the Commissioner relying on the ruling given in Nemat Ali v. Jahandad ((1950‑51) F C Rev. No. 50.), accepted the appeal and remanded the case to the Collector for determining compen sation, if any, due to the respondent, before ordering restitution and transfer of possession of the land. The mortgagee has come up in revision.

The main point that has been argued before me is that the provisions of section 2 of the Punjab Restitution of Mortgaged Lands Act do not override article 148 of the Limitation Act, so that redemption of the land in dispute cannot be allowed after a lapse of 60 years ; further that the onus lay on the mortgagor to prove that the mortgage subsisted at the time he applied for its redemption. This question has been considered before by the learned Financial Commissioner, and I have been referred to Sarwan Singh v. Daula Singh (P L D 1950‑Pb. (Rev.) 297.) in which Mr. Ram Chandra F. C. overruled an earlier decision of Sir James Anderson F. C. published in Partab Singh and another v. Anwar Khan and another ((1945) 24 L L T 11=P L D 1950 Pb. (Rev.) 279). The matter has also been considered by the High Court and they have differed from Mr. Ram Chandra's view in their ruling reported as Ata Muhammad v. Muhammad Din ((1952) P L D Lah. 73) which has been followed by my learned predecessor Mr. Akhter Husain in Fazal Elahi etc. v. Hayat Muhammad etc. (R O R M No. 666 of 1952‑53). Briefly, the law as it stands is that the period allowed for redemption under the ordinary law is 60 years from the date of the mortgage and after the expiry of that period the right to redeem is extinguished under section 28 of the Limitation Act, I would accept this view. As a result it should be definitely proved that the mortgage was subsisting at the time when the application for its redemption was made.

The other point which has been raised is regarding the burden of proof. It has been urged that this was wrongly placed on the mortgagee though his counsel objected at the time. Obviously when a mortgage has been in subsistence for such a long period and the mortgagee is in possession it is for the mortgagor who wants to dispossess the mortgagee to prove positively that the mortgage subsisted at the time at which he seeks to redeem. The contention of the learned counsel for the mortgagor is that if the onus had been rightly placed, the mortgagor would have adduced evidence sufficient to shift the onus of proof. As the onus was not correctly placed no evidence on this point beyond entries in the Revenue Records relating to the years 1892‑93 was produced. As a matter of fact records concerning previous years had been destroyed but the learned counsel for the mortgagor contends that other evidence could have been produced. There is force in this contention.

I would accordingly accept this revision set aside the order passed by the Commissioner and remand the case to the Collector with the direction that he should give an opportunity to the mortgagor to prove that the mortgage subsisted at the time when he made the application, that is, the burden of proof should be placed on him, and the case then be decided in accordance with law.

The parties should be informed.

A. H. Case remanded.

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