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Civil Revision No. 56 of 1958, decided on 1st May 1961.

Mortgage‑--

-Second mortgage when constitutes new mortgage --N.‑W. F. P. Restitution of Mortgaged Lands Act (XXXII of 1950), Ss: 2 and 8.

Where an area is mortgaged by a transaction and a new area is brought under mortgage and added to the previous mortgage, the second transaction, which consists of the two areas, constituted a new mortgage. It is only when the mortgage money alone is increased on the same area that the transaction does not create a fresh mortgage, because in that case no new interest is created in the land.

A I R 1932 Lah. 465 rel.

Pir Masoom Shah for Petitioners.

Abdul Qayum Mazhar for Respondents.

Date of hearing : 24th April 1961.

This revision petition has been directed against the judgment of the District Judge, Hazara, dated the 6th of January 1958.

2. A suit for a declaration that the plaintiff had matured their title to the land mortgaged with them by prescription was passed in plaintiff's favour on the 24th of November 1956 by sub‑Judge, First Class, Haripur, and the District Judge, Hazara, has by his judgment, dated the 6th of January 1958, reversed that judgment and dismissed the plaintiff's suit.

3. The facts of this case briefly Are that in the Record of Rights of 1872 an area of 2030 kanals 14 marlas was recorded as shamilat of Patai Kargwal of village Kharkot, Tehsil Haripur. It consisted of 327 khasra numbers. By mutation No. 141, which was attested on the 12th of March 1890. some of the co‑sharers in the shamilat placed an area of 17 kanals 15 marlas comprised in five khasra numbers under mortgage with Azad, Sher Gul, Gaman, Khairullah, Mirwali, Mehand Ali, Ahmad Ali, Habibullah and Azimullah, for a sum of Rs. 268‑11‑6.

4. But contrary to the mutation in the settlement record of 1904‑05 these mortgagees and their descendants were shown to be mortgagees of 109 kanals 2 marlas.

5. The mortgagees effected a partition in 1905 and some area fell to the share of Azimullah and Habibullah.

6. On the 12th of May, 1953, the owner‑mortgagors brought an application under section 4 of the Restitution of Mortgaged Lands Act of 1950 for the redemption of the mortgage without the payment of the mortgage money on the ground that the mortgage was created prior to 1920 and stood redeemed under that Act. It appears that half of the land (i. e., Azimullah's share) was redeemed without payment of mortgage money and the other half, relating to Hnbibullah's share was allowed to remain under mortgage.

7. Mir Zaman and Faiz Ali, sons of Azimullah, brought a suit: in 1956 for a declaration that the mortgage in their favour was not liable to redemption because the mortgage had been extinguished before the enforcement of the Restitution of Mortgaged Lands Act, 1950 by the lapse of sixty years after its creation and they had become full owners of the land. According to their contention mortgage was created tinder mutation No. 141 of the 12th of March 1890.

8. The defendants, who are the descendants of the owner mortgagors, alleged, that the mortgage was created in 1904, and as such it was less than sixty years old, and the mortgagees had not acquired ownership by prescription.

9. There were only two pieces of evidence in this case, mutation No. 141, which was. attested on the 12th of March 1890, by which an area of 17 kanals and 15 marlas was placed under mortgage, and an entry in the record‑of‑rights of 1904‑05, under which an area of 109 kanals and 2 marlas was shown under mortgage. The trial Judge was of opinion that in fact 109 kanals and 2 marlas shown under mortgage in the revenue record of 1904‑05 was the area which was placed under mortgage under mutation No. 141 attested on the 12th of March 1890, and not 17 kanals and 15 marlas, and the entry of 1904‑05 had source in that mutation. He, therefore, decreed the plaintiff's suit.

10. The District Judge was of opinion that the entry in the settlement record of 1904‑05 was in respect of an area of 109 kanals 2 marlas and related to another transaction of mortgage and did not relate to mutation No. 141 attested on the 12th of March 1890. He, therefore, found the mortgage to have been created in 1904, and as it was less than sixty years old, he dismissed the plaintiff's suit. The plaintiff's have come to this Court in revision.

11. The plaintiff's success depended on showing that the area in respect of which the suit was brought was in fact pieced under mortgage sixty years before the commencement of the Restitution of Mortgaged Lands Act. 1950. He was unable to do so by means of any document. He did so by saying that the mortgage created under mutation No. 141 of the 12th of March 1890 related to this area.

12. It was not correct to hold that this land which has an area of 109 kanals 2 marlas was mortgaged under mutation No. 141 of the 12th of March 1890, when that mutation clearly says that it relates to an area of 17 kanals and 15 marlas. The defendants, on the other hand, were able to establish that the area in dispute was one which was the subject‑matter of the entry in the record of rights of 1904‑05. The mortgage of the land in suit was traced to that entry, and that was the correct view of the situation.

13. It was contended on behalf of the mortgagees that at the time of the settlement of 1904‑05 the owners admitted that the entries relating to the settlement of 1872 were incorrect and null and void and people shown in possession of the land at that time were not the owners of that land. That state ment leads to nothing in respect of a matter which is now in dispute. In the first instance, ownership is not in dispute in this case. What is in dispute is whether mutation No. 141 showing a mortgage on 'an area of 17 kanals and 15 marlas in fact created a mortgage on an area of 109 kanals and 2 marlas. On that matter those statements throw no light. Secondly, a statement of that tenor does not create a right at all It appears that after the first mortgage of the 12th of March 1890 another mortgage was created by means of another mutation and another area of about 85 kanals was added to the area of the previous mortgage. The entry of 1904‑05 related to the two areas so added together. That situation constitutes a new mortgage in respect of the two areas. It is now well settled that where an area is mortgaged by a transaction and anew area is brought under mortgage and added to the previous mortgage, the second transaction, which consists of the two areas, constitutes a new mortgage.

14. A mortgage, as defined in section 58 of the Transfer of Property Act, "is a transfer of interest in a specific immov able property for the purposes of securing the payment of money . . " . Such interest is created in respect of one area and when such interest is created in respect of another area by another transaction, the second transaction, which brings a new area into the mortgage obviously constitutes a fresh mortgage. It is only when the mortgage money alone is increased on the same area that the transaction does not create a fresh mortgage, because in that case no new interest is created in the land. There is support for this view in A I R 1932 Lah. 465. Their Lordships in that Full Bench judgment stated at page 467:‑--

"If, for instance, the new transaction purports to cancel the earlier one, or contains conditions substantially different from those contained in the original mortgage, or an additional area of land is included in the security, there can be no doubt that the old mortgage is at an and, and a new and wholly different relationship between the parties had been brought into existence . . . . . "

As in the case in hand additional area has been included in the security, that transaction becomes a new mortgage.

15. This mortgage has rightly been traced to the entry of 1904, and as that mortgage was less than sixty years old at the time of the commencement of the Restitution of Mortgaged Lands Act of 1950, the plaintiff mortgagees were rightly held to be the mortgagees, and not the owners of the land by prescription and it was correctly held to have been redeemed under that Act. The decision of the lower Appellate Court is upheld, and this revision petition is dismissed with costs.

K. M. A. Petition dismissed.

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