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Civil Petition No. 582‑R of 1983, decided on 18th February, 1984.

(From the judgment dated 9th July, 1983 of the Peshawar High Court passed in Civil Revision No. 15 of 1982)

‑‑‑Art. 185(3)‑‑Sale of mortgagee rights‑‑Finding of High Court that original mortgagee had acquired and accepted transfer of mortgagee rights of property in dispute found to be unexceptionable‑‑Document not produced before Courts below‑‑Held, cannot be entertained by Supreme Court for correcting decision taken by Courts below‑‑Leave to Appeal refused.

Khawaja Muhammad Yusuf Saraf, Advocate Supreme Court instructed by Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioners.

Nemo for Respondents

Date of hearing: 18th February, 1984.0

The petition arises from a suit filed Ali Zaman etc. respondents for a declaration to the effect that they being mortgagees in possession of the disputed land for more than sixty years have acquired titled in the same; that the rights of the owners/ mortgagors, if any, had thereby extinguished and that mutation No. 2235 had been wrongly entered in the name of Ali Khan, etc., petitioners. It is not disputed that the land in question, which originally belonged in Mir 7aman, Abbas Khan and Azad Khan, sons of Mir Khan, had been shown in the Jamabandi for 1904‑05 to have been in the self‑cultivation of its mortgagee, namely, Nasrullah. Nasrullah sold his mortgagee rights in favour of Amanullah Khan by Mutation No.88 of 19th January, 1911. On the death of Amanullah Khan, his right in the land was inherited by his son Nawab and after his death by Ali Zaman, etc., the plaintiffs/ respondents. Ali Khan, etc., petitioners, claimed to have purchased the equity of redemption of the land from the successors ‑in‑interest of the original owners but the relevant Mutation No.2235 was not attested and as such the sale was yet to be completed. The trial Court found that Mutation No. 88 of 29th January, 1911 having been attested by Sher son of Nasrullah during the latter's lifetime, the attestation was not competent and as such the transaction did not confer any title on Amanullah Khan, the predecessor‑in‑interest of the plaintiffs. It, therefore, dismissed the suit. The appellate Court, however, held that the said mutation had been attested by Sher on behalf of his father and that neither Nasrullah, during his lifetime, nor his successors‑in‑interest having disputed the correctness of the mutation of the sale of the mortgagee rights in favour of Amanullah Khan, the plaintiffs, who are the successors‑in‑interest of Amanullah Khan, had acquired title in the suit land. On this view of the matter, the appellate Court accepted the appeal and decreed the suit. The petitioners moved the Peshawar High Court in revision, but having failed there, are now seeking leave to appeal.

2. Learned counsel for the petitioners has urged that the sale made by Sher during the lifetime of his father in favour of Amanullah Khan by Mutation No.88 of 29th January, 1911 was invalid and not binding on the petitioners. From this he further urged that Amanullah Khan could at best be treated to be a trespasser and to have acquired the prescriptive right in the land after 12 years from 29th January, 1911, which meant that he had stepped in the shoes of Nasrullah as mortgagee from 1923 and the period of 60 years from that date not having expired, the plaintiffs' could not claim to have acquired titled to the land. Learned counsel is unable to give the date of death of Nasrullah. However, there is nothing to show that Nasrullah during his lifetime or after his death any of his successors had questioned the transaction or the possession of Amanullah or his successors. In the, relevant Jamabandi for 1911‑12 the transaction is recorded as which shows that the transaction had been made by Sher not in his own name but on behalf of his father. The revenue papers from the year 1904‑05 upto the current Jamabandi had been, according to the appellate Court placed on the file. In this connection, the High Court has observed:

"True that the mutation was entered and attested at the instance of Sher son of Nasrullah on behalf of his father but the revenue record clearly reveals that Nasrullah the original mortgagee had fully acquiesced to this transfer and has accepted the transfer of mortgagee rights without any objection or reservation:

We see no reason to differ from the view taken by the High Court on this question of fact.

4. Learned counsel then sought support from a mutation bearing No.188 dated 14th February, 1948 which is a new document not in evidence. Obviously it will not be proper for this Court to entertain a new document in order to test the correctness of the decision taken by the Courts below on the basis of the evidence before them.

5. The petition is, therefore, dismissed.

S.Q. Petition dismissed.

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