Limitation for Redemption of Mortgaged Land

Limitation for Redemption of Mortgaged Land Case Laws Civil Law Knowledge - Civil Law Limitation Litigation & Arbitration Mortgage Solutions - Civil Law Supreme Court Mr. Justice Umar Ata Bandial in his judgment has decided the issue of limitation for redemption of mortgaged land in Civil Petition No. 1440 of 2007.

1. The leave granting order dated 31.07.2007 notes the appellants’ (“plaintiffs”) contention that their predecessors mortgaged their land in favour of evacuee mortgagees vide registered mortgage deed dated 22.12.1882 (Exb.P-16). This transaction was duly entered in the revenue record vide mutation No.4 dated 05.05.1887. However, by a clerical mistake, the plaint in the suit has pleaded such mortgage to have been created in the year 1914. Therefore, the claimed redemption of mortgage vide mutation No.2 dated 17.06.1913 was rejected by the learned Appellate and the learned Revisional Courts as being contradictory and destructive of the plaintiffs’ claim. Accordingly, leave was granted to consider, inter alia, the effect of the registered mortgage deed dated 22.12.1882 (Exb.P-16) upon the outcome of the appellants’ plea for declaration of title of the mortgaged land.

2. The plaintiffs filed a suit on 04.11.1986 in the Court of Senior Civil Judge, Sargodha seeking declaration of title in respect of land measuring 71 Kanals 3 Marlas situate in village Jhumat Ranjhayan Wala, Tehsil Bhalwal, District Sargodha (‘suit land’). The plaintiffs are the progeny of Taja son of Karam and of Babal son of Sahba (grandson of Karam). Taja, Sahba and Samand sons of Karam mortgaged the suit land to evacuee mortgagees under a registered deed of mortgage dated 22.12.1882. Rather implausibly, the plaint claims that the said mortgage was created in the year 1914-15 but on the contrary, it rightly claims that this mortgage was redeemed vide mutation No.2 dated 17.06.1913. However, redemption of the mortgage was not reflected in the periodical revenue record. The mutation No.1999 dated 12.04.1971 (“impugned mutation”) was entered to record the resumption of the mortgaged suit land by the Central Government under the Displaced Persons (Land Settlement) Act, 1958. The prayer in the suit is for the impugned mutation to be declared illegal and void. The judgment of the learned Trial Court dated 25.06.1988 upheld the redemption of mortgage by the plaintiffs but dismissed their suit as being time barred for the relief prayed. The learned Appellate Court, however, noticed the contradiction in the plaint about the date of redemption of the mortgage being prior to the date of its creation. Vide judgment dated 12.12.1988 the learned Appellate Court dismissed the plaintiffs’ appeal by holding that a mortgage cannot be redeemed before it is created; therefore the case set up in the plaint was self destructive. This was affirmed on 16.05.2001 by the learned Revisional Court which also held that the mutation No.1999 dated 12.04.1971 was valid.

3. The learned counsel for the appellants has referred to Exb.P-16 which is a copy of the mortgage deed dated 22.12.1882 registered in the record of the Sub-Registrar, Bhera, executed by Taja, Sahba and Samand, the three sons of Karam, in favour of evacuee mortgagees. The corresponding mutation No.4 dated 05.05.1887 incorporating the mortgage in the revenue record is also part of Exb.P-16. Although the said document was exhibited on record by the plaintiffs yet they made no effort before any of the learned three Courts below to amend the plaint in order to correct the pleaded date of mortgage of land by their predecessors. However, finally by an application bearing C.M.A. No.3811-L of 2006 filed before this Court under Order V Rule 2(8) of the Supreme Court Rules, 1980, the plaintiffs have sought to amend the plaint for incorporating therein the correct date of creation of mortgage on the basis of the said Exb.P-16. 

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