Law:

Section:

Specific Relief Act (I of 1877)-----S. 42 and Civil Procedure Code (V of 1908), O. VI, r. 17-Amend­merit of pleadings-Suit for declaration of right to, and for possession of, mortgaged land dismissed by Courts below as barred by limitation-Suit however found to have been filed within 12 years of last date of redemption-Findings of Courts below, held, not correct-Twelve years having been already spent on litigation and fresh suit being barred by limitation, plaintiffs allowed to suitably amend plaint and pay deficit court-fee to avoid prolonged litigation and to further course of justice in special circumstances of case. Charan Das v. Amir Khan A I R 1921 P C 50 ; Muhammad Zahoor Ali Khan v. Mst. Thakoorance Rutta Koer (1867) 11 M I A 467 (PC) and Karamat Ali v. Muhammad Yunus P L D 1963 S C 191 ref. JUDGMENT SALAHUDDIN AHMED, J.-This appeal by special leave is from the judg­ment and order of the Peshawar High Court dismissing the second appeal of the petitioners. Leave was granted to consider whether the suit instituted on the 6th of December 1961, for declaration of plaintiffs' right to and for possession in respect of the mortgaged lands redeemed between the years 1940 and 1948 were barred by limitation. It appears that one Zabta Khan, son of Dost Muhammad Khan, was the last male owner of the property in suit some of which had been mortga­ged. He died in the year 1933, i. e., before the promulgation of the Muslim Personal Law (Shariat Application) Act, 1935, leaving behind a widow, Mst. Pari, a son, Wali Muhammad, and a daughter, Mst. Zubeda Begum. According to the customary law then applicable, the properties, which were situated in three different villages, namely, Ghari Daulat Zai, Kot Daulat Zai and Husain were mutated in the sole name of Wali Muhammad to the exclusion of the aforesaid two females. Among the properties are included :mortgaged lands of a total area of 932 kanals and 12 marlas. It is an admitted fact that these lands had been mortgaged at the time of the death of Zabta Khan, but they were redeemed by Wali Muhammad alone between the years 1940 and 1948. The defendants-respondents filed a joint written statement on the 4th of January 1962,…

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