1984 PLP 1444 (SCMR)

Aslam and another v. Mst. Kamalzai and others C.P. 19‑P of 1967; Noor Din and others v. Mst. Bafo and another C.P. 37‑P of 1971 and Madan Gopal and 4 others v. Maran Bepari and 3 others P L D 1969 S C 671 ref. M. Qasim Imam, Advocate‑on‑Record for Appellant. Qazi Abdur Rashid, Advocate with S. Safdar Hussain, Advocate‑on- Record for Respondent. Date of hearing: 23rd November, 1981. MUHAMMAD AFZAL ZULLAH, J.‑‑ Judgment dated 24‑4‑1972 of the Peshawar High Court whereby a regular second appeal filed by the respondent which had arisen out of a land inheritance case was allowed, has been called in question in this appeal through special leave, which was granted by this Court on 18‑4‑1973.

2. Ferozedin, the original owner of the land, died in 1937, i.e. after the coming into force of the N.‑W.F.P. Shariat Act, 1935. He was survived by Abdur Rehman, a son, the appellant (who having died meanwhile is now represented by his legal heirs) and a daughter Mat. Bibi i,atima, respondent. The land was mutated in favour of Abdur Rehman. Mat. Bibi Fatima who filed a civil suit pleading therein that although after the demise of her father, she remained in common possession of the land with her brother, but shortly before the filing of the skit, he had refused to give her share out of the produce. Abdur Rehman contested the suit mainly on the ground of prescription and accordingly asserted exclusive title. The learned trial Judge decreed Mat. Bibi Fatima's suit for joint possession of 1/3rd of the suit land.

3. Ort appeal a learned District Judge reversed the findings of the learned trial Court and dismissed the suit. A learned Single Judge of the High Court, however, accepted the respondent's second appeal and restored the judgment and decree passed by the learned trial Court in favour of the respondent. Leave was granted by this Court to consider whether "respondent's ouster for more than ten years prior to the institution of the suit" had been established in the facts and circumstances of this case.

4. Special leave to appeal had already been granted to examine similar question in C.P. 19‑P C of 1967 (Aslam and another v. Mat. Kamalzai and others) and C.P. 37‑P of 1971 (Noor Din and others v. Mat. Bafo and another). Learned counsel for the appellants has frankly stated that one of the aforementioned appeals was withdrawn‑while the decision in the other is of no help and relevance for the appellant.

5. Mr. Qasim Imam, learned Advocate for the appellant has not challenged the approach of the Court in so far as the question of law of 'adverse possession' is concerned. He however, asserted the complete ouster of respondent having been established by evidence, her suit should have been dismissed. He has relied upon the evidence led from the appellants' side to show that the respondent used to receive Ushr from her brother Abdur Rehman and he never gave share of produce to her.

6. This question was also raised in the High Court. The fact that; the respondent used to receive something with regularity from her brother has rightly been treated as corroboration of her assertion that; she used to receive the share of produce. Other circumstances asserted from the appellants' side in order to establish ouster have also been rightly considered by the High Court by putting them in juxtaposition to the relationship between the parties; the fact that respondent was illiterate and a Pardahnashin lady and the further fact that she used to receive a share in the produce from her brother. In so far as the' setting aside of finding of fact regarding 'ouster' in the second appeal; is concerned, the judgment of the High Court is in accord with the; rule laid down by this Court in Madan Gopal and 4 others v . Maran Bepari and 3 others P L D 1969 S C

671. No other infirmity legal or otherwise has been pointed out. We accordingly find no merit in this appeal and the same is dismissed. There shall be no order as to costs S. Q. Appeal dismissed.