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Civil Petition No. 647 of 1982, decided on 24th April, 1983.

(From the judgment, dated 25-5-1982 of the Lahore High Court, passed in R. S. A. No. 990 of 1979).

-- Art. 185 (3)-Redemption of Mortgages (Punjab) Act (II of 1913), S. 12-West Pakistan Redemption and Restitution of Mortgaged Land Act (XIX of 1964), S. 17-Leave to appeal-Redemption proceedings-Question of relationship between parties as mortgagees having been dealt with and concurrently found on cogent reasons against petitioners throughout-Petitioners themselves never request ed for framing of such issue or taken objection in that regard in time-Petitioners having not been prejudiced in circumstances, leave to appeal refused.

D. M. Awan, Senior Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate-on-Record for Petitioners:

S. Inayat Hussain Shah, Advocate-on-Record for Respondent No. 1.

Date of hearing : 16^th April,1983.

The petitioners are seeking leave to appeal from the order, dated 25-5-1982 of a learned Single Judge of the Lahore High Court dismissing their second appeal.

2. The facts briefly stated are that Bhai Khan, the original owner, mortgaged the disputed land situate in village Janiwala, District Shahpur, in favour of Malik Jehan Khan Tiwana some time before 1892. In 1903, Malik Mubariz Khan and Malik Mumtaz Khan, son of Malik Jehan Khan, gave tog disputed land in village Janiwala to Sahib Khan, Allah Yar and Agar Khan vide Mutation No. 36 and in exchange obtained from the latter their land in village Vijh vide Mutation No. 285. The terms of the exchange stipulated inter alia are as follows:

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On. 8-10-1962, the successors of Bahi Khan and Agar Khan (respondents herein) brought a suit before the Collector for redemption of the land from the successors of Sahib Khan and Allah Yar (petitioners herein) which suit was decreed on 26-12-1967. The petitioners' appeal and revision having failed, they filed writ petitions in the High Court and went up to the Supreme Court in appeal but without success. Since one of the contentions raised by the petitioners was that as there was no subsisting mortgage with them, the proceedings before the Revenue authorities were without jurisdiction, this Court observed that "the proper remedy open to the appellants, therefore, was to take the dispute to a civil Court for determination" (vide judgment reported at 1971 S C M R 118). The peti tioners, thereupon, brought a suit on 21-10-1970 before the civil Court, wherein as many as ten issues were framed. The trial Court held that the matter related to mortgagee of property and as such the civil suit was barred under section 17 of the West Pakistan Redemption and Restitution of Mortgaged Land Act (XIX of 1964), that the petitioners were estopped by their own conduct as "it had been agreed upon between the parties that whenever the mortgagee redeemed the land property situated in village Vijh, the petitioners shall relinquish all their rights and interest in the land situated in village Janiwala" and that the suit was time-barred. Before the appellate Court only the question of the jurisdiction of the civil Court was debated and it was held that the suit was barred by the aforesaid section 17. The findings of the trial Court on the other issues were not challenged. In the second appeal, the High Court examined the matter at length and held that the ouster of jurisdiction was to be considered not by reference to section 17 of the West Pakistan Redemption and Restitution of Mortgaged Land Act (XIX of 1964) because that Act had come after the proceedings had already started on 8-10-1962, that the relevant pro vision was section 12 of the Redemption of Mortgages (Punjab) Act (II of 1913) and that the questions of jurisdiction, limitation, as well as relationship, were to be determined with reference to the real nature of the suit. After further examination, the High Court came to the view that by the exchange the mortgaged rights in the Tiwanas were conveyed to Sahib Khan and Allah Yar, the predecessors-in-interest of the petitioners, in lieu of creation of similar rights in land situate in Village Vijh, that the predecessors-in-interest of the petitioners stepped into the shoes of the Tiwanas as mortgagees, that they were so recorded in the Revenue record and that the petitioners had failed to establish any alleged right independent of the mortgage. The High Court, therefore, concluded that the redemption proceedings carried out by the Collector were within jurisdiction and valid in law and held that the suit which was really to get rid of the Collector's order, dated 26-12-1967 was rightly held as barred by time.

3. Mr. D. M. Awan has contended that the suit for redemption should have been instituted only against the Tiwanas who were the mort gagees/sub-mortgagees and not against the petitioners because they were neither mortgagees nor sub-mortgagees and that no issue having been framed on this point, the petitioners had been prejudiced. The question of relationship between the parties as mortgagees has been dealt with and concurrently found against the petitioners throughout. Cogent reasons have been given for the same. As regards non-framing of an issue, it is to be seen that the petitioners themselves had never requested for framing of such issue or taken an objection in this regard in time.

4. We thus find no merit in this petition and accordingly dismiss the same.

M. Z. M.

Petition dismissed.

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