P L D 1952 Lahore 307 (PLP)

RAHMAN, J.‑‑The facts leading up to this second appeal are as follows. One Zaman, a zamindar of village Lakoo, Tahsil Khushab, District Sargodha, made a gift of 44 kanals of his land to Mehr Khan, his son‑in‑law, by means of a mutation sanctioned on the 2nd April, 1893. Subsequently on the 14th June, 1896, he sold another plot of 26 kanals of land to Mehr Khan and the transaction was embodied in a mutation. Noth ing was expressly said at the time of the two mutations whether the transferee would also have a right to share in the shamilat of the village in respect of these properties. There was an unregistered sale‑deed, dated the 23rd March, 1896, with regard to the second transaction, but that too was silent on this point. Zaman died and was succeeded in his property by Mst, Fateh, his widow. In 1913‑14, mutation (Exhibit D. 2) was entered at the instance of Mehr Khan by way of correc tion of the first two mutations and it was then made clear on the admission of Mst. Fateh, that the original transactions of gift and sale also conveyed the appurtenant share of the shamilat. This mutation was sanctioned on the 13th March, 1914. Ever since then, Mehr Khan and, after him, his sons, continued to be shown as owners of the land gifted and sold to Mehr Khan together with the appurtenant shamilat rights. The appellants in the present case are three sons and the widow of a fourth son of Ghulam Farid, the son of Mehr Khan. The suit out of which the appeal has arisen was brought by Umar etc, sons of Kareta, they being third degree collaterals of Zaman. They claimed a declaration that the plaintiffs were entitled to the shamilat rights appurtenant to the land sold and gifted to Mehr Khan by Zaman on the plea that the shamilat rights had not been transferred by Zaman. They asserted that they were reversioners of Zaman. The suit was contested by the appellants on several grounds. The trial Court framed five issues, which read as follows:‑ (1) Are the plaintiffs the successors‑in‑interest of Zaman deceased? (2) Did Zaman make the sale and the gift of the land in suit inclusive of a share in the shamilat in favour of Mehr Khan, father of the defendant? (3) Did Mst. Fateh widow of Zaman enter a mutation for correction of the earlier mutation about the sale and the gift, that they were made with a share in the shamilas, if so, what is its effect? (4) Are the plaintiffs barred by the conduct from bringing the present suit? (5) Is the suit within time? On issue No, 1, it was found that the plaintiffs were the collaterals of Zaman deceased in the third degree, and the issue was, therefore, decided in their favour. On issue No. 2 it was held that .the sale and the gift made by Zaman in favour of Mehr Khan included a share in the shamilat. No separate findings were recorded on issues Nos. 3 and 4, facts relating to which were discussed under issue No.

2. On issue No. 5, it was held that the suit was barred by time. It was found that the defendants had been in possession of the shamilat in assertion of their rights as co‑sharers at least from the date the mutation (Exhibit D. 2) was sanctioned in the year 1914. They owned no other land in this village except for the lands which had been gifted or sold by Zaman to Mehr Khan. As a result the suit was dismissed with costs. On appeal the learned District Judge Shahpur at Sargodha main tained the finding of the trial Court on issue No. 1, but held that no rights in the shamilat had been transferred to Mehr Khan by Zaman at the time of the gift or of the sale, that Mst. Fateh could not improve the position by her admission, that the plaintiffs were not estopped from bringing the suit and that the bar of limitation could not be successfully raised against them. The appeal was consequently allowed, and a decree was granted to the plaintiffs as prayed for. The parties were left to bear their own costs throughout. Against this judgment, the descendents of Mehr Khan have come up in second appeal. The question whether there was a conveyance of shamilat rights along with the gift and the sale in favour of Mehr Khan is set at rest by a recent enactment of the Punjab Legislature, section 3 of the Punjab Land Dispositions (Saving of Shamilat) Act, 1951, (Punjab Act IV of 1952), is in the following terms:‑ "In any disposition of land, whether testamentary or otherwise, effected by the maker by means of a writing or orally and whether made before or after the commencement of this Act, words or phrases of a general nature, purporting to convey rights or interests, incidental, contingent, or collateral, to that land, shall not be so construed as to include therein the shamilat or any portion thereof, appur tenant to such land. A disposition shall include such shamilat or a portion thereof only if it has been specifically, mentioned as the subject matter of the disposition." This must conclude the controversy between the parties and it must be held that there was no transfer of shamilat rights in favour of Mehr Khan. It follows that the subsequent admission of Mst. Fateh in 1914, on this point, cannot avail the appellants. She could not, as a limited owner succeeding Zaman, invest Mehr Khan with better rights than what the law declares had passed under the previous transactions. Appar ently there was no notice given to the reversioners of Zaman at the time when the mutation (Exhibit D. 2) was sanctioned in 1914, so that there was no consent to this mutation on the part of the reversioners. We next come to the question of limitation. It appears that proceedings were set on foot for the partition of the shamilat in this, village sometime in 1934. A question of title seems to have been raised before the revenue authorities in those proceedings, which were stayed so that the parties concerned might get the question adjudicated upon in the Civil Court. The partition proceedings were revived some time in 1944. This appears from the document (Exhibit P. 17), which is the final order sanctioning the tariqa taqsim of the shamilat. In its heading it is mentioned that there was a preliminary partition file of this village started on the 9th June, 1934, which was decided on the 28th July, 1936. The new ale was started on the 17th June, 1944, and the tariga taqsim was reported upon, on the 20th December, 1944. It received sanction on the 12th February, 1945. Ultimate sanction of the partition, it is common ground, has not yet been given by the proper authorities so far. It is also not denied that the appellants have been in possession of a portion of the shamilat and they have been described in the revenue records as co -sharers in the shamilat, presumably on the basis of the muta tion (Exhibit D. 2). The evidence clearly establishes that they did not own any other lands besides those transferred to their predecessor‑in‑interest, Mehr Khan, by Zaman. Their possession of the shamilat could not, according to them, be referred to any other proprietary land except that acquired by Mehr Khan by gift and sale from Zaman. It is also agreed by learned counsel for the parties that the provision of law which governs the question of limitation in this case is Article 120 of Schedule 1 to the Limitation Act. This prescribes a six years' limitation and the terminus a quo for a suit would be the point of time when the right to sue accrues. It was suggested by Mr. B. Z, Kaikaus on behalf of the appellants that inasmuch as Farid and Kareta joined the other co‑sharers of the shamilat, in 1934, in making a statement before the revenue authorities consenting to partition of the shamilat, the plaintiffs were fixed with the knowledge that Farid was claiming the disputed share in the shamilat and they should have brought a suit within six years of the date of that statement. In this connection it was also pointed out that in the mutation (Exhibit P. 5). which was sanctioned on the death of Zaman in favour of Mst. Fateh, it was not mentioned that the property left by Zaman with the shamilat share now in dispute had been retained by Zaman. Further, by mutation (Exhibit D. 5) on the death of Mst. Fateh, all the other lands left by Zaman were mutated in favour of the respondents. On the other hand it is contended on behalf of the respondents by M. Ghulam Mohy‑ud Din that the plaintiffs were not obliged to rush into Court at every invasion of their right and that every fresh attack on those rights could furnish them with a cause of action. Our attention has been invited to paras. 5 and 8 of the plaint wherein it was alleged by the plaintiffs that they came to know a month earlier of the claim made by the appellants to the shamilat in dispute and on this they based their cause of action. In the corresponding paras, of the written statement submitted by the appellants in the trial Court, this allegation of fact was not at all controverted. It was merely pleaded that the suit was barred by time. In the absence of an express denial of the fact alleged that the appellant had made a claim about a month prior to the institu tion of the suit, during partition proceedings is must be held that such a claim was made at the rime mentioned. The' plaintiffs as co‑sharers of the shamilat, which is still unparti tioned must be deemed to be in joint possession of it with the remaining members of the proprietary body. A mere entry in favour of the appellants in the revenue records to the' effect that they were co‑sharers in the shamilat by virtue of the gift and sale made by Zaman in favour of Mehr Khan, could not affect the plaintiffs, respondents' rights in the shamilat till an attempt was actually made to oust them from the disputed property. That attempt may have been made ir. 1934, but it was clearly repeated in 1944‑

45. This would furnish the plaintiffs‑respondents with a fresh cause of action to bring the suit for a declaration of their rights. It cannot be said that the possession of a part of the shamilat by the appellants must necessarily be referred to their claim to share in it on account of the transfers made by Zaman in favour of their ancestor Mehr Khan. An authority for this view would be found in Sewa Singh v. Ganesna 5., Punjab Record 1879. A case which seems to be on all fours with the present one is reported as Muhammad Hanif v. Rattan Chand I L R (1922) 3 Lah. 43 (D. B.). In that case the defendant had denied the plaintiffs title in the shamilat in 1895, but the plaintiff remained in joint possession of the undivided portion of the shamilat and his enjoyment thereof was not interfered with. Fresh proceedings had been taken again in 1914, when the defendant reiterated his denial of the plaintiff's title to a share. This was held to constitute a fresh invasion of the plaintiff's title giving him a fresh cause of action. In Fateh Ali Shah and others v. Muhammad Bakhsh and others A I R 1928 Lah, 516 (D B) it was laid down that if the plaintiff is in possession or enjoyment of the property in suit, he is not obliged to sue for a declaration of title on the first or each succeeding denial of title by the defendant, He may look upon each denial with complacency or at his option, may institute a suit to falsify the assertions of the other side. But when he finds that his rights are being actually jeopardized by the action or assertion of the defendant, then he must take proceedings within six years. This ruling appears to us to be apt in the circumstances of the present case. Reference may also be made in this connection to Hakim Singh and others v. Waryaman and others 140 Punjab Record 1907 Jahana and Dula v. Wali and others 98 Punjab Record 1919 (D. B.) Bela Singh v. Lakhmi Das I L R (1925) 6 Lah. 132 (D B) and Bura and another v. Banta and others A I R 1938 Lah.

227. In the last mentioned authority it was not expressly ruled that every invasion of right although it might be a repetition of the old ones, gives, a new cause of action with a new starting point of limitation. It would seem, therefore, that so long as the shamilat remained unpartitioned, and there was al fresh assertion of the defendants‑appellants made in 1944‑45 casting a cloud on the plaintiff' title, the latter's suit could not be held to be barred by time. We, therefore, uphold the finding of the learned District judge on this point. Mr. Kaikaus appears to be on firmer ground when he urges that the plaintiffs had not really succeeded in discharging the onus of proving issue No. 1 in this ease. He points out that the only evidence, which was adduced on their behalf, proved that they were descended from Keema, the common ancestor of Zaman and the plaintiffs. No attempt was, how ever, made by them to show that the property in suit devolved on them by inheritance from the common ancestor Keema, who at one time occupied it. Our attention was also drawn to the fact that in the plaint it was not expressly averred that the suit property was ancestral qua the plaintiffs. They merely claimed to be collaterals of Zaman deceased in the third degree. There is a good deal of force in the contention of Mr. Kaikaus that in the absence of an assertion to the contrary, it ought to have been, presumed that the property in suit was non‑ancestral in character and under the general custom of the Province, such property should devolve on the daughter's son of Zaman after his death, in preference to his collaterals. Learned counsel was fair enough to concede, that this point had not been raised in the two Courts below or even in the grounds of appeal before us. It is, however, a question which goes to the root of the case and seems to involve both law and facts. It was primarily the duty of the plaintiffs to prove not merely that they were collaterals of Zaman, but that they were also entitled to succeed to the property of Zaman; because of their common ancestor having held it in his own lifetime. In the written statement it was denied that the plaintiffs were reversioners of Zaman. This does not merely mean a denial of their relationship with Zaman, but also involves the objection, if rightly understood, that the property was not ancestral qua them. As observed above, however, the objection was not made explicit in any of the Courts below or in the grounds of appeal so that the plaintiffs had no opportunity to meet it. It is a mixed question of law and fact. In this connection it was argued on behalf of the respondents that before the learned District judge the finding of the trial Court on issue No. 1 was not even w assailed. This appears to be correct. There is, however, authority for the view that an admission by a lawyer on al question of law or even on a mixed question of law and fact is not binding on his client. See Kesar v. Buta and another A I R 1945 Lah. 336 (D. B.). In these circumstances the fairest order would be to allow both parties to lead evidence to show the nature of the property involved in this case and to prove the rule of custom applicable thereto. We consider it neces sary to have evidence brought on the file on these two points for a proper adjudication of the dispute between the parties. We, therefore, remand the case under Order XLI, rule 27 C. P. C. to the trial Court with the direction that the parties may now be permitted to lead evidence on the two points men tioned above and that the record be forwarded to this Court with a finding on the evidence thus recorded, by the trial Court as well as by the District judge after hearing parties and their counsel. The parties have been directed to appear before the Court of first instance on the 14th April, 1952. Costs will abide the final event. A. H. Case remanded.