K S MIAN FEROZ SHAH Vs. SOHBAT KHAN

JUDGEMENT

(1.) These are consolidated cross-appeals. Only the first of them has been seriously contested. In this, Mian Feroz Shah is the appellant, and Nawab Mohammad Akbar Khan the only appearing respondent, and they will be so referred to in this judgment. Of the second appeal, their Lordships need only say that there is no valid ground upon which the decision of the Judicial Commissioner can be attacked. The appeals arise out of a series of complicated transactions which are fully detailed in the judgments below, and it is not necessary to set them out again. It will be sufficient to state the main facts upon which the contentions of the parties turn.

(2.) One Sohbat Khan, who is a pro forma party to both appeals, was the owner of a considerable area of land in the village of Sheiku in the Peshawar District. On 12 March 1917, he mortgaged 1,011 kanals 8 marlas to the appellant and his brother. It is not disputed that the appellant is now solely entitled under this mortgage. It was for a term of 10 years, and was in form 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 to Sohbat for the same term at a rent of Rs. 1,224 per annum, which may be taken to represent the yearly interest on the mortgage debt. Mutation was duly recorded in the Government records on the basis of the mortgage in the names of the mortgagees. On 23 November 1918, Sohbat mortgaged another 140 kanals to a third party whose heirs subsequently transferred their security to the appellant.

(3.) The respondent was an execution creditor of Sohbat. He claimed to have a charge upon another part of Sohbat's land, the validity of which is disputed, but this claim is not material to the present appeal. His decree against Sohbat was dated 31 March 1920, and he proceeded to execute it by attachment of inter alia the 1,011 kanals odd which had been mortgaged to the appellant and attempted to bring them to sale. Sohbat however was a member of an agricultural tribe, and the sale of his land was prohibited by S. 16, Punjab Alienation of Land Act, 1900. The sale was at first ordered by the Revenue Assistant, but was disallowed by the Collector. Eventually some time in 1926 or 1927, a Receiver was appointed by the Revenue Court, who proceeded to lease the attached lands to tenants. The appellant objected, but the order was upheld, and he was referred to a civil suit. The execution proceedings were voluminous and protracted and nothing would be gained by their detailed examination. It may however be stated that the attachment was held by the Judicial Commissioner to have been invalid, and this finding has not been contested before the Board.