IN THE SUPREME COURT OF PAKISTAN 
 
       (Appellate Jurisdiction)    
 
 
 
 
 
 
Present: 
 
 
 
 
Mr. Justice Anwar Zaheer Jamali 
 
 
 
 
Mr. Justice Umar Ata Bandial 
 
CIVIL APPEAL NO. 1440 OF 2007 
(On appeal from the judgment/order dated 16.05.2001 passed by  
Lahore High Court, Lahore, in Civil Revision No.713-D/1989) 
 
Dausa & others  
 
 
 
 
… 
… 
Appellants.  
 
 
 
 
Versus 
Province of the Punjab, etc.   
 
 
… 
… 
Respondents.  
 
 
 
For the appellants 
 
: 
Mr. S.M. Tayyab, ASC.  
 
For respondents (1-2)  
: 
Mr. Muddassar Khalid Abbasi, DAG Pb.  
 
 
 
 
 
Mr. Zafar Iqbal, Patwari Halqa. 
For the respondents   
: 
Mr. Muhammad Munir Peracha, ASC.  
(4-10 & 13-16) 
L.Rs. of Respondents (3, 11, 12) : 
Ex-parte.  
 
Date of hearing  
 
: 
16.06.2015. 
 
 
 
 
 
JUDGMENT: 
 
 
 
UMAR ATA BANDIAL, J. – 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 
CA.1440/2007. 
2
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 
CA.1440/2007. 
3
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.  
4. 
 
The written statement filed in the Trial Court by the respondents 
(“defendants”), who are respectively the Provincial Government and the successors 
of the Settlement and Rehabilitation Commissioner, namely, the Notified Officer 
(Senior Member, Board of Revenue, Government of Punjab), acknowledges/admits 
that mortgage of half the suit land was indeed redeemed vide mutation No.2 dated 
17.06.1913, which is duly reflected in the Jamabandi for the year 1915-18. The written 
statement further states that the remaining half of the suit land has remained subject 
to mortgage. It is averred that after the lapse of 60 years, the right of redemption of 
the mortgage has become time barred; consequently, the suit land has vested in the 
government. Therefore, the impugned mutation No.1999 dated 12.04.1971 is rightly 
recorded.  
5. 
 
The learned counsel for the parties have been heard. The learned 
counsel for the appellants/plaintiffs has also filed written arguments to elaborate 
his submissions. The learned Assistant Advocate General has filed a concise 
statement on behalf of the Provincial Government which aptly explains the position 
on record. These materials and the record have been perused.    
6. 
 
A reading of the record and the three judgments of the learned 
Courts below reveals the cursory manner in which the parties, namely, the plaintiffs 
on the one hand and the government defendants on the other hand, dealt with the 
controversy in issue before the learned Trial Court. Quite apart from the factual 
error in the pleadings which is sought to be rectified by an amendment application 
filed by the plaintiffs before this Court, the pleadings of the parties are silent about, 
inter alia, the terms of the mortgage, tracing the plaintiffs’ succession from the three 
mortgagors, the particulars and the area of the mortgaged land that is in their 
possession. Although the written statement by the Provincial Government 
specifically mentions that only half of the mortgaged suit land stands redeemed but 
possession of the entire suit land by the plaintiffs is not denied. However, no 
CA.1440/2007. 
4
evidence on the particulars of the redeemed land is available on record. The 
defendants were proceeded ex-parte by the learned Trial Court before recording of 
evidence.  
7. 
 
The submissions made by learned counsel before us, the evidence on 
record and the written submissions filed by the learned counsel in Court establish 
consensus between the parties that in 1882 three sons of Karam, namely, Taja, Sahba 
and Samand jointly mortgaged their land in favour of evacuee mortgagees (Ex.P-
16). The successors of Babal son of Sahba and the successors of Malli son of Taja are 
plaintiffs in the suit. Sahba had three other sons, namely, Ditta, Jallo and Shabul, 
who died issueless; so also did Samand son of Karam, the third mortgagor. This 
detail is available from the pedigree table of the plaintiffs attached to the statements 
filed in Court by the learned counsel for both the parties before us. The redemption 
mutation No.2 dated 17.06.1913 records redemption by Ditta, Jallo and Shabul, the 
issueless sons of Sahba. According to the said mutation, the predecessors of the 
plaintiffs, namely, Babal and Malli did not redeem their share of the suit land under 
mortgage and nor did Samand, the third mortgagor. Accordingly, there is another 
error in the suit, namely, whilst the plaintiffs claim rights pursuant to redemption 
mutation No.2 dated 17.06.1913, in fact it is the shares of Ditta, Jallo and Shabul, 
who are not plaintiffs, that have been redeemed under the said mutation. This is 
significant because the plaint does not claim the plaintiffs to be the only heirs of the 
redeeming mortgagors. In the resulting scenario, the plaintiffs lack locus standi for 
the relief of declaration of title of the redeemed land prayed in the suit. Also, the 
plaintiffs as successors of the non-redeeming mortgagors have not sought 
redemption of their share in the mortgaged land. This appeal, therefore, prima facie, 
lacks potential for any relief. 
8. 
 
There are, however, two legal developments that have taken place 
during the pendency of the lis. These impact the outcome of the controversy. It is 
noted that the impugned mutation No.1999 dated 12.04.1971 has by operation of 
law resumed the proprietary rights of the mortgaged land in favour of the 
government. With regard to such resumption of land, the judgment of this Court 
CA.1440/2007. 
5
given in the case of Samar Gul  v. Central Government (PLD 1986 SC 35) has laid 
down that under the Displaced Persons (Land Settlement) Act, 1958 the proprietary 
interest that is liable to transfer in favour of the Central Government is the right of 
evacuee mortgagees in mortgaged land and not the ownership rights of such land. 
It is also held that a memorandum dated 08.12.1959 issued by the Chief Settlement 
and Rehabilitation Commissioner constitutes an acknowledgment of the existence of 
a mortgage of land to evacuee persons within the terms of Section 19 of the 
Limitation Act, 1908. This communication has been held to renew the period of 
limitation for redemption of mortgage under Article 148 of the Limitation Act, 1908 
by another 60 years. The said memorandum directs the field officers to issue notices 
to Muslim landowners/mortgagors to redeem their mortgages or else the evacuee 
mortgagee rights in their mortgaged land would be put to auction. The consequence 
of the ruling in Samar Gul’s case (supra) is that straightaway the impugned 
mutation resuming title of the mortgaged suit land in favour of the government is 
rendered illegal. At best only the evacuee mortgagee rights in the suit land could 
have been resumed. Consequently, the impugned mutation divesting the 
appellants/plaintiffs of their title in the suit land is illegal and void. However, the 
said title remains subject to the mortgagee interest in favour of the government.     
9. 
 
In the light of the above facts, the Court has endeavored to construe 
the case of the parties in the light of the pleadings, available evidence on the record 
and the law applicable to the controversy which involves the interest of evacuee 
mortgagees. Due to a wrong date of creation of mortgage on the suit land given in 
the plaint, a reasonable factual plea in the suit based on the redemption mutation 
No.2 was rendered futile. It is noted that the document Exb.P-16 (comprising the 
registered mortgage deed dated 22.12.1882 and mutation No.4 dated 05.05.1887) 
clarifies the confusion about the creation of the mortgage and cures the 
contradiction in the suit. Moreover, Exb.P-16 is an admitted document by the 
respondents and belongs to the official record. It is therefore, both genuine and 
reliable. The actual date of creation of the mortgage which is evidenced by the 
document Exb.P-16 is consistent with the plea of mortgage of the suit land taken in 
CA.1440/2007. 
6
the plaint. The amendment application (C.M.A. No.3811-L of 2006) by the 
appellants/plaintiffs for incorporating the correct date of the mortgage in the plaint 
does not alter the nature of the case pleaded by the plaintiffs. The prayer for the 
incorporation of an undisputed fact is of a formal nature and brings factual clarity 
which promotes the fair adjudication of the controversy and the interest of justice. 
Compliance with the said criteria satisfies the principles for allowing amendment in 
pleadings even by the highest Court. [Ref: Ghulam Nabi  vs.  Nazir Ahmad (1985 
SCMR 824);  Secretary to Government (West Pakistan)  vs. Abdul Kafil (PLD 1978 
SC 264)]. The C.M.A. No. 3811-L of 2006 for the amendment prayed is accordingly 
allowed.  
10. 
 
As a result of the amendment, the finding duly recorded by the 
learned Appellate Court and the learned Revisional Court that a self destructive 
case has been setup by the plaintiffs is rendered redundant. What remains in the 
field is the learned Trial Court’s finding that the suit is time barred. It is contended 
on behalf of the appellants/plaintiffs that the registered mortgage deed (Exb.P-16) 
provides for repayment of the mortgage amount of Rs.500/- by 4 Poh 1937 (Jan, 
1937). Ordinarily, the limitation period of 60 years under Article 148 of the 
Limitation Act, 1908 for redemption of mortgage reckoned from that date ends 
roughly in the year 1997. However, the legal rule laid down in Samar Gul’s case 
(supra), the memorandum extends the limitation period for the redemption of a 
mortgage created in favour of evacuee mortgagees or their successors, the 
Settlement Commissioner/Notified Officer until 07.12.2019. Accordingly, a suit for 
redemption of the unredeemed land may competently be filed by the plaintiffs until 
that date. 
11. 
 
With respect to half the mortgaged land that was redeemed by Ditta, 
Jallo and Shahbul, the three issueless sons of Sahba under the mutation No.2 dated 
17.06.1913 (Exb.P-16), the plaintiffs have brought no evidence on the record to 
establish their locus standi as the only successors of the three issueless redeeming 
mortgagors. From the agreed pedigree table of the redeeming mortgagors that is 
available on record, it appears that the plaintiffs may have entitlement as collaterals 
CA.1440/2007. 
7
of the redeeming mortgagors. However, the impleadment of all entitled successors 
of the redeeming mortgagors in the suit, the ascertainment of the veracity of the 
entries in the cultivation column of Intikhab Misl Bandobast of the Mouza from  
1911-1912 to 1962-1963 (Exb.P-1 to Exb.P-12) showing the possession of the 
mortgaged land with the successors of the redeeming mortgagors and deciding any 
third party interest that may have crept over the suit land would be necessary for 
adjudicating the title of the redeemed mortgaged land prayed in the suit. Since 
neither of the said aspects of the case have been dealt with by the learned Courts 
below, it is appropriate that the matter be remanded to the learned trial Court for 
deciding after allowing the parties to amend their pleadings, if desired and leading 
fresh evidence. This is without prejudice to our finding that according to the law 
declared in Samar Gul’s case (PLD 1986 SC 35) the impugned mutation No.1999 
dated 12.04.1971 is illegal and void. The respondents are entitled to hold the interest 
of evacuee mortgagees in the suit land for which requisite correction shall be made 
in the relevant revenue record of Mouza in which the suit land is situate.  
 
 
For the foregoing discussion, this appeal is partly allowed. No order 
as to costs.  
 
 
  
 
 
   
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
 
J. 
Announced in Court at Islamabad,  
On 19.04.2016.  
 
 
 
 
 
J.  
 
 
APPROVED FOR REPORTING.  
 
