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‑‑ Art. 199 read with West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), S.‑Redemption of land‑‑ Revenue authorities failing to consider aspect of petitioner becoming owner of mortgaged lands sought to be redeemed ‑ Order of Revenue authorities being illegal, set aside. in circumstances.

Nazir Ahmad Cheema for Petitioners.

S. M. Rashid for Respondents Nos. 1 to 3.

Date of hearing: 19th October, 1982.

The facts giving rise to this writ petition are as follows. On 25th July, 1973 one Munir Ahmad mortgaged with possession 18 Kanals and 17 Marlas of agricultural land in favour of the petitioners. On 2nd June, 1975 out of the said land, he further mortgaged 15 Kanals and 19 Marlas in favour of the respondents Nos. 1 to 3. Out of the mortgage money respondents Nos. 1 to 3 retained Rs. 3,000 for redeeming the mortgage earlier created in favour of the petitioners. On 8th June, 1975 the peti tioners instituted a suit against Munir Ahmad for a declaration inter alia that they were owners in possession of land in dispute. On 15th January, 1976 the parties filed a deed of compromise in the Court and made some statements. In accordance with the said deed and the statements the Court granted the declaration sought by the petitioners. Treating the said compromise decree as a sale respondents Nos. 1 to 3 on 15th January, 1977 filed a suit for., pre‑emption. The suit was decreed after trial on 17th October, 1977. The petitioners went in appeal before the District Judge but failed. They then preferred a second appeal in this Court which was admitted to regular hearing. 1t is still pending.

2. Side by side with the litigation mentioned above respondents Nos. I to 3 applied to the Collector under the provisions of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 for the redemption of the mortgage created by Munir Ahmad in favour of the petitioners. The Collector accepted their application on 17th February, 1976 and made an order of redemption. The petitioners challenged the order of the Collector before the Additional Commissioner and the Board of Revenue but without any success. They have now come in writ jurisdiction to impugn the legality of the orders made by the revenue authorities.

3. The case of the petitioners before the revenue authorities was that, they were owners of the land and not mortgagees. In support of then claim they relied upon the decree made in their favour by a Civil Court on 15th January, 1976. Consequently, even if at any time they possessed mortgagee rights these stood merged in their right as owners. The claim of the petitioners in this regard was accepted by respondents Nos. 1 to who then obtained a decree for possession in exercise of their right of pre‑emption. Consequently there was no mortgage which could be redeemed by the revenue authorities under the provisions of the West Pakistan Redemption and Restitution of Mortgaged Lands Act. This aspect of the case was not properly considered by the revenue authorities even though it was canvassed before them. There is a recital in the order of the learned Additional Commissioner that the petitioners were both mortgagees as well as owners. On my inquiry from the learned counsel for respondents Nos. I to 3 whether an owner could also be the

mortgagee of his own land, he replied in the negative.

4. The above being the position I declare the orders of the revenue authorities to be of no legal effect. This writ petition is accepted with costs.

5. Before I conclude I may add that this writ petition was heard on 19th October, 1982. That was a day fixed for hearing of a miscella neous application. As the point involved in the case was a short one I enquired from counsel for both the sides if they were prepared to argue the main petition. They both replied in the affirmative.

M. Y. M. Petition accepted.

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