1994MLD81 (PLP)

This Regular Second Appeal under section 100, C.P.C. has been filed by the plaintiffs in order to challenge the judgment and decree of affirmance dated 30-6-1977 whereby the learned first Appellate Court dismissed the appeal filed by the appellants and maintained the judgment and decree passed by the learned Civil Judge, Sheikhupura dated 19-1-1976 dismissing the suit by the appellants.

2. The basic outlines of the case are not in dispute. These may be conveniently stated as follows: That the dispute relates to share of appellants in Khata No.15 (fully w detailed in amended plaint dated 13-8-1971) according to the plaint the forefathers of the plaintiffs were owners of 5/64th share in the said Khata which comprised 5,714 Kanals. 4 Marlas of agricultural land. By means of registered sale-deed dated 18-6-1918, the forefathers of the appellants made the sale of 2/5th out of 5/64th favour of the forefathers of the respondent. The transaction of sale evidenced by the registered deed was incorporated into mutation-register on 21-2-1920 vide Mutation No.17 (Exh. D7). Thereafter the forefathers of the appellants made another sale through registered deed, dated 4-6-1920 the same was incorporated in mutation which is Exh.D/11. By means of these sales the share of appellants was reduced from 5/64th to 2/64th. Feeling aggrieved with these entries in Revenue Record, appellants instituted a suit under section 42 of the Specific Relief Act against the respondents alleging therein that they were in possession of 5/64th in Khata No.64; that the entries in the Revenue Record showing them to be owners of 2/64th share were incorrect, illegal, without jurisdiction and of no legal consequence on the rights of the appellant. In alternative it was pleaded that if any transaction of sale or mortgage was proved as having been made by their forefathers then the appellants be adjudged to become owners on account of adverse possession over the suit land for more than 12 years.

3. The suit was resisted. The respondents in written statement took up the stand that the suit was undervalued for the purpose of court-fee and jurisdiction; that they were co-sharers in the disputed Khata; that the forefathers of the appellants had made the sale by means of registered sale deeds in their favour as far back as 73 years. On the divergent pleadings of the parties, the learned trial Court framed following issues: (1) Whether this suit has been improperly valued for the purposes of court-fee and jurisdiction? (2) Whether the defendants are not the mortgagees and owners of the suit land and that the plaintiffs its owner without any charge? (3) If Issue No.2 is not proved, whether the plaintiffs have acquired proprietary rights in the suit land, through adverse possession for more than 12 years? (4) Relief. The parties led their oral as well. as documentary evidence in order to substantiate their respective pleas. Upon consideration of the evidence so adduced by the parties the learned trial Court came to the conclusion that the forefathers of the appellants, had made the sale of land equivalent to 2/5th of 5/64th share of respondents. On this conclusion it was found that the entries in Revenue Record were correct and were not liable to interference by the Court. In view of this the learned original Court dismissed the suit vide decisions dated 19-1-1976. On appeal the learned first appellate Court dismissed the appeal and upheld the decision of the first Court vide impugned decision dated 30-6-1977.

4. The learned counsel for the appellant in support of this appeal contended that the appellant had been in continuous possession of the suit land for more than 12 years in their own right and, therefore, they had become owners by virtue of adverse possession under section 28 of Limitation Act. Reliance was placed on Ude Singh and another v. Chittar and others AIR 1936 Lah.

994. No other point was urged.

5. The learned counsel for the respondents on the other hand supported the impugned decision by saying that the finding of the two Courts below on question of adverse possession was finding of fact and was not liable to interference under section 100, C.P.C. by this Court.

6. I have heard the learned counsel for the parties at length and perused the record. I find a lot of substance in the line of arguments of the respondent. From the record it is clear that the appellants as well as the respondents are co-sharers. It is settled principle of law that each co-sharer is in possession of every inch of land on behalf of other co-sharers. No adverse possession can be claimed against a co-sharer until and unless the person claiming adverse possession can show some act of total ouster of the other co-sharer. Dealing with the question of adverse possession amongst co-sharers in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 the Supreme Court had hold:

"The pleas 6f estoppel, waiver and adverse possession can also be now easily repelled in the light of the foregoing discussion of the Islamic principles. The petitioners being the brothers of the respondent were required by the Islamic Law to protect the property rights of their sister if ever they came into possession of the land in any capacity. Here admittedly they alleged voluntary relinquishment, therefore, even otherwise the well-known rules for establishing adverse possession, particularly the one relating to hostility would not be established. But as stated earlier one who is enjoined with the protection of the other's property cannot lay claim adverse to the interest and rights of that other one who owns it. The Saying of the Holy Prophet (p.b.u.h.) has been quoted which enjoins upon the menfolk to protect property right of their womenfolk. Under the Islamic dispensation, therefore, in the present case there could be no claim of adverse possession. Same would apply to the estoppel and waiver. Moreso on account of rule of public policy and the principle of devolution of the property in respondent's favour immediately on the death of her father (regardless of the fact whether she did any other act to exercise control over it) would negate the plea of estoppel or waiver. The plea of ouster, to say the least, is untenable; because, its essential component, the plea of 'adverse possession so obviously not available against a sister what to talk of her ouster." Applying this principle to the facts and circumstances of this case it is clear that the appellants as well as respondents are co-sharers; that there is no evidence whatsoever which can establish the total ouster of respondents. I have, therefore, no hesitation in coming to the conclusion that the decision of the two Courts below on the question of adverse possession is eminently correct and are not open to interference under section 100 of C.P.C. by this Court.

7. There is yet another aspect of the case. Section 28 of Limitation Act has been adjudicated to be contrary to Islamic Injunctions by the Shariat Appellate Bench of Supreme Court of Pakistan in Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2063. No plea under section 28 of the Limitation Act regarding acquisition of ownership by way of adverse possession can be advanced in the Court now.

8. In the light of foregoing analysis this Regular Second Appeal is found to be wholly untenable and is accordingly dismissed leaving the parties to bear their own costs. H.B.T./M-1223/L Appeal dismissed.