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1970 S C M R 633

 

Present : Muhammad Yaqub Ali, Sajjad Ahmad and M. R. Khan, JJ

 

ABDUL HANAN AND 8 OTHERS‑Appellants

 

versus

 

KAPOOR KHAN AND 16 OTHERS‑Respondents

 

Civil Appeal No. 5‑P of 1968, decided on 25th March 1970.

 

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 21st May 1965, and 21st June 1965, in R. S. A. No. 43 of 1962 and Order in C. M. No. 46 of 1965, respectively).

 

Mian Mohammad Younus Shah, Advocate Supreme Court instructed by Abdul Samad Khan, Advocate‑on‑Record for Appellants.

 

Mohammad Afzal Bangash, Advocate Supreme Court instructed by G. S. Gideon, Advocate‑on‑Record for Respondents 1 and 2.

 

Respondents 3 to 17 : Ex parte.

 

Date of hearing : 25th March 1970.

 

 

ORDER

 

MUHAMMAD YAQUB ALI, J.‑The short question arising in this appeal by special leave is whether the suit brought by the respondents for redemption of 3/5th share of land included in Khata No. 465 in village Garh Munara, tehsil Swabi, district Mardan, is barred by time.

 

The Courts below have concurrently held that the mortgage in favour of Abdul Karim, the predecessor‑in‑interest of the appellants, took effect from 19‑2‑1899 when mutation No. 44 was attested by the Revenue Officer on the basis of the statement made by the sons of Zaffar Khan, the first mortgagor of the land. The suit filed on the 19th February 1959, was in that case clearly within time as provided in Article 148, Schedule I of the Limitation Act. The appellants, however, relied on the report by the Patwari on 1‑11‑1897 that in the course of carrying out Girdawari of crops he was informed that the land comprised in the suit herein was mortgaged by Zaffar Khan to Abdul Karim for the sum of Rs. 114 and that possession had been delivered to the mortgagee. It was contended, accordingly, that the limitation started to run from 1‑11‑1897, and the suit brought on the 9th February 1959, was beyond the prescribed period of sixty years.

 

No evidence other than the report of the Patwari, referred to above, was brought by the appellants on the record to subs tantiate their claim. The entry by itself did not constitute evidence of the mortgage allegedly created by Zaffar Khan in favour of Abdul, Karim. The report does not even purport to be based on the statement made by either of them. Further it transpires that Zaffar Khan died on some date after 1897 and the, mutation was attested on 19th February 1899, on the basis of the statement made by his sons. The transaction entered into by Zaffar Khan with Abdul Karim prior to 1‑11‑1897 having thus remained inchoate the mortgage which held the field all along was created on 19‑2‑1899 on the basis of the statements of the sons of Zaffar Khan. The suit brought by the respondents for redemption of the land was thus well within time and was rightly decreed by the Courts below.

 

No other argument was addressed by the counsel for the appellants in support of the appeal which is dismissed with costs.

 

 

Appeal dismissed.

 

 

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