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Appellate Side No. 59 of 1957‑58, decided on 3rd March 1959, District D. G. Khan.
S. 4‑Appli cation filed on 9‑2‑1956 for redemption of mortgage dated 15‑3‑1891‑Barred by time.
Sh. Aftab Hussain for Appellants.
Khawaja Abdur Rahim for Respondents.
The land in dispute, including some other land, was mortgaged by the predecessor‑in‑interest of the appellants by an unregistered deed dated 15‑3‑1891, as a result of which mutation No. 78, was decided on 22‑5‑1895. Amir Nawaz Khan, one of the land‑owners, got his share of the land resituated in 1948 under section 4 of the Restitution of Mortgaged Lands Act. The appellants applied for restitution on 9‑2‑1956. The respondent resisted the claim on the ground that in view of the provisions of Article 148, Schedule 1, to the Indian Limitation Act, the claim was 60 years old and was time‑barred.
The appellants contend that the mortgage deed prohibits redemption for 59 years and, therefore, this period of 59 years should be added to the period of 60 years in calculating the period of limitation because they were not entitled to redeem the land within the period of 59 years. The document in question has not been produced There is a document on the record, but this document is not signed by the mortgagee. It cannot, therefore, be the document in question. In fact, the appellants contend that this is not the document in question. They cannot, therefore, rely on it. Even in this document there is no stipulation that the mortgage cannot be redeemed within 59 years. In the absence of the document, reliance has to be placed on order dated 22‑5‑1895, passed in mutation No. 78, which can be translated as follows :‑
"Haider Khan is present. He has been identified 'by Kora Khan, Lambardar. He stated that he had mortgaged his eight annas property to Muhammad son of Bakhsh Gazerke for Rs.450. I have no objection. The mutation is, therefore, sanctioned."
This too does not show that there was any stipulation to the effect that the mortgage could not be redeemed for 59 years. Under these circumstances it must be held that there was no bar to the redemption of the mortgage for any period.
In view of my finding in the preceding paragraph the question is that the mortgage commenced on 15‑3‑1891 and so the period A of 60 years expired on 14‑3‑1951. Since the application was filed on 9‑2‑1956, it was clearly time‑barred.
The result is that there is no ground for interference with the order passed by the learned Commissioner and the appeal is accordingly dismissed.
K. M. A. Appeal dismissed.
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