2001 PLP 2615 (YLR)

Riaz Hussain Khan for Petitioners. This revision petition is directed against the judgment and decree dated 11‑12‑2000 passed by the learned Additional District Judge, Kasur, whereby the appeal of the petitioners was dismissed and the judgment and decree dated 14‑3‑1998 passed by the learned Civil Judge, Kasur was affirmed, resultantly the suit of the petitioners seeking declaration and injunction was dismissed.

2. This case has its roots in the olden times. The petitioners, who claim to be the legal heirs of the collaterals of Allah BakhSh i.e. the last male holder of land measuring 234 Kanals, 5 Marlas situated Mouza Sattoke,. Tehsil and District Kasur, had ventured to file a suit with the assertion that the said Allah Bakhsh died in the year 1922 and as his family was governed by custom, therefore, his land afore‑noted was mutated in the names of his widow Mst. Jewan Bibi and the widow of his son Mst. Bakhtawar Bibi in equal' shares i.e., 1/2 each vide Mutation No.437 attested on 2‑6‑1922. Both the widows afore noted held the land as limited owners as understood under the customary law. Mst. Jewan Bibi died later on and 1/2 share of the land afore‑noted which was allocated to her as limited owner was also mutated in savour of l Mst. Bakhtawar Bibi, the widow of the son of late Allah Bakhsh, vide Mutation No. 1036 attested on 16‑1‑1932. She also held the land as limited owner. Mst. Bakhtawar Bibi died during the pendency of the suit and her legal representatives were brought on the record, who have been arrayed in the present revision petition as respondents Nos. l to

7. The limited estate as held by the widows under the custom were tern~nated with the promulgation of Act V of 1962 and it is the case of the petitioners that the land reverted back to the late Allah Bakhsh, which was to be inherited by the Muslim body of heirs in accordance with the Islamic Law of Inheritance and the petitioners being collaterals of Allah Bakhsh were entitled to 3/4th share from his estate while the remaining 1/4th was to be inherited by Mst. Bakhtawar Bibi. According to the plaintiffs/petitioners about a month preceding the filing of the suit they came to know that Mst. Bakhtawar Bibi had sold the total estate of late Allah Bakhsh, which she was holding as limited owner in favour of defendants Nos.2 and 3 in the suit, whose legal representatives have been arrayed as respondents in the revision petition, vide registered sale‑deed dated 10‑4‑1968. That on further inquiry they came to know that Ghulam Muhammad defendant No.3 has sold his share in favour of Ghulam Nabi i.e. defendant No.4 in the suit, whose heirs have also been arrayed as respondents in the revision petition. It was then asserted that the major portion of the land forming subject matter of the estate of late Allah Bakhsh is either Bunjar or has remained under water and the other portion was being occupied by original defendants Nos.2 to 4 as tenants, therefore, the petitioners did not come to know about the sale in their favour. On being reclamation of the land afore‑noted when the predecessor‑in‑interest of the petitioners wanted to occupy the same they were resisted in their intent and then they came to know about the facts as disclosed earlier. It was then that the usual declaration was sought alongwith permanent injunction.

3. The suit was resisted by the original defendants, who proceeded to file separate written statements. It was maintained by Mst. Bakhtawar that she had only leased out the portion of land falling to her Shari share and that she has come to know that defendants Nos.3.and 4 have fraudulently got incorporated the total land in their sale‑deed. The original defendants Nos.2 to 4 and 9; however, resisted the suit primarily on the ground that the same is barred by limitation and that even previously sale in their favour was challenged by way of filing appeal which was dismissed, whereafter suit was filed which too was dismissed on 9‑5‑1979, therefore, the second suit is barred in view of principle of res judicata and petitioners are estopped by their conduct to file the suit. The plea 6f adverse possession was also raised and it was asserted that plaintiff No.8 and defendants Nos. 12 to 15 as arrayed in the suit had even previously instituted a suit which remain pending for nine years, therefore, the present suit is barred. It was denied that Mst. Bakhtawar Bibi was a limited owner and that the vendees are in possession since 1968 while the present suit, which was filed on 29‑1‑1988, was patently barred by limitation.

4. The suit was hecticly contested between the parties as is evident from the evidence produced in the case and both the Courts having appraised and discussed the same recorded concurrent findings of fact that the same is barred by limitation.

5. It is an admitted position of fact on the record that the land forming subject matter of the estate of late Allah Bakhsh was sold by Mst. Bakhtawar Bibi in favour of defendants Nos.2 and 3 and defendant No.3 in turn sold the same in favour of defendant No.4. The limited estate existing in the name of Mst. Bakhtawar was terminated on 31‑12‑1962 with the promulgation of Act V of 1962. The petitioners or their predecessor in‑interest did not come forward to claim their share from the limited estate held by Mst. Bakhtawar till 1968 when she sold the land in dispute in favour of defendants Nos.2 and

3. The time limited for filing a suit for declaration had definitely expired by then. Confronted therewith, learned counsel for the petitioners argued that they had become co- sharer in the land in dispute by operation of law, therefore, the question of limitation would pale into insignificance. The above said aspect apart, the sale of the land forming subject‑matter of the estate of late Allah Bakhsh was concluded in the year 1968, yet the petitioners filed the suit in the year 1988 i.e. after the lapse of 20 years. The plea that they had become co‑sharer with the promulgation of Act V of 1962 could not be available in regard to the sale in favour of original defendants Nos.2 and 3 for they were stranger and holding land in their own right on the basis of sale‑deed executed by Mst. Bakhtawar Bibi in their favour. The two attempts made to challenge the sale in favour of original defendants Nos.2 and 3 did also fail for the suit filed by one of the petitioners and few of the respondents was dismissed, therefore, the second ‑ suit was definitely barred in view of the principle of res judicata. Needless to add that so far as the plaintiffs in the earlier suit are concerned, they are estopped by their conduct to reagitate the matter. The plea that the major part of the land had remained under water or Bunjar would also not come to the help of the petitioners for it is not a case of alluvion and diluvium. The plea if accepted would at the most be that of rain water or otherwise which does not suspend the limitation. It seems that on the reclamation of the land the petitioners have come forward to file a suit and in that regard Mst. Bakhtawar Bibi was also won over so that the land be reverted back to the family. The attempt was absolutely futile for it has not been proved on the record that the sale‑deed was procured fraudulently or by misrepresentation. In any case this plea, though in defence, would also fail on the ground of limitation. The other argument that the land was Bunjar, and therefore, the petitioners could not come to know of the actual ownership thereof, suffice it to observe that the vacant land follows the title. All said and done, the learned counsel for the petitioners has not been able to satisfy me that the suit was within limitation or that both the Courts below have committed any illegality in non‑suiting the petitioners on the ground of limitation.

6. In result this petition is dismissed in limine. H.B.T./M‑714/L Petition dismissed.