MIAN FEROZ SHAH Vs. SIR MOHAMMAD AKBAR KHAN

JUDGEMENT

(1.) THIS appeal is brought by the plaintiff from a decision (May 23, 1936) of the Court of the Judicial Commissioner for the North-West Frontier Province affirming a decree of the Subordinate Judge of Peshawar dated March 25, 1935, whereby the appellant was awarded Rs. 8,110. The appellant complains of this sum as inadequate; partly, but not solely, on the ground that a three-year period of limitation has been applied to his claim and not a six-year period under Article 120 of the schedule to the Indian Limitation Act of 1908.

(2.) ON March 12, 1917, one Sohbat Khan, who was the owner of a considerable area of land in the village of Sheikhu in the Peshawar District, mortgaged 1,011 kanals 8 marlas of his land to the appellant and his brother. The mortgage was for a term of ten years and was a mortgage with possession, the sum secured being Rs. 44,233. Possession was not, in fact, taken by the mortgagees, but by a second document of even date the mortgaged land was leased by the mortgagees to Sohbat Khan for the same term at a rent of Rs. 1,224 per annum which was taken to represent the yearly interest on the mortgage debt. The appellant, for reasons which need not here be detailed, became solely entitled to the mortgage. ON March 31, 1920, the respondent obtained against Sohbat Khan a money decree and thereafter applied for and obtained attachment of the land above mentioned and of certain other land. As Sohbat Khan was a member of an agricultural tribe, the sale of his land was prohibited by Section 16 of the Punjab Alienation of Land Act, 1900. ON some date prior to June, 1927, which does not appear from the record, the Naib Tehsildar of Charsadda was appointed by the Revenue Court to be receiver of the land of Sohbat Khan, including the 1,011 kanals now in question. ON June 6, 1927, the receiver applied to the Court of the Collector for a warrant of possession in order that he might lease out the land and thereby realise money on account of the respondent's judgment-debt. An order for possession was granted on June 16, 1927, and on July 2,1, 1927, possession of the land was delivered to the receiver. The appellant, on August 16, 1927, lodged objections against this in the Court of the Collector, but his objection was disallowed by an order dated May 17, 1928, on the ground that the appellant, though the mortgagee, was not in possession of the land ; and execution was permitted to proceed, subject to any order that might be obtained in a civil suit.

(3.) IT is a noticeable feature of the appellant's plaint in that case that it contained no claim for damages against the present respondent in respect of the possession taken by the receiver of the 1,011 kanals 8 marlas. Indeed one of his prayers for relief was in the following terms: That in the event of the relation of landlord and tenant being held to exist between the plaintiff and defendant No.1 judgment-debtor, separate proceedings with regard to his ejectment and for recovery of the share of produce in accordance with the terms of the lease deed will be taken in a Court of competent jurisdiction.