1983 PLP 626 (SCMR)

A. Waheed Salim, Advocate Supreme Court and Mahmood A. Quraishi. Advocate‑on‑Record for Petitioners. Nemo for Respondents. Date of hearing : 24th March, 1982. SHAFIUR RAHMAN, J.‑The petitioners who were defendants in the suit seek leave to appeal against the judgment of the Lahore High Court dated 23‑5‑1981 whereby the second appeal of the plaintiff‑respondents was accepted and the concurrent finding of the two courts below was set aside and their suit for declaration was decreed. The inheritance of Lakhwera was in dispute between the parties who are descendants from the same common ancestor. The plaintiff‑respondents claimed that as heirs they were entitled to a particular share in the estate of Lakhwera and the mutations attested in 1907 and 1908 with regard to the devolution of his estate were not in accordance with the law. The petitioners resisted the claim not on the ground that the plaintiffs were not heirs of Lakhwera according to Shariat or that their shares were different from those claimed by them but on the ground that a suit for declaration was not com petent as they were in possession of the suit‑land, and that it was hopelessly barred by time. A number of issues were framed and the two Courts dismissed the claim of the plaintiffs‑respondents but in second appeal it was held that the plaintiff‑respondents admittedly held the land jointly with the petitioners and that their possession over the land was through their co‑sharers and the declaration of the property could be obtained by them and the revenue record had to be consequently corrected to reflect it. The learned counsel for the petitioners has reiterated the points taken up earlier. His insistence is that in the Bahawalpur State before the enforcement of the Land Revenue Act, as the settlement record shows, the settlement with regard to the payment of land revenue was made with those persons who were in cultivating possession over the land excluding altogether others who were out of such possession. 1t is contended that when Lakhwera died the peti tioners were in possession of the land and were so recorded excluding the plaintiffs‑respondents. This the learned counsel for the petitioners wants to transform into principle of inheritance. Such a claim is based neither on custom nor on Shariat. What law prevails in the matter of preparation of revenue record or what practice is followed by the officers cannot be determinative of the devolution of the estate of a deceased person. It appears that the plaintiff‑respondents were the heirs of Lakhwera and entitled to inherit in the same manner as the petitioners. The land being joint there was no question of their remaining out of possession or the suit being time‑barred. The possession of the one co‑sharer is for the benefit of all the other co- sharers and a co‑sharer is deemed to be in possession through his other co -sharers. Simply because the mutations were attested in 1907 or 1908 does not bless the transaction sanctity. These mutations conferred no right in the property and are at best arrangements made on the fiscal side for ensuring realization of land revenue and ensuring the correctness of the revenue record for that purpose, We find that none of the grounds taken up by the learned counsel for the petitioners requires a more elaborate examination or a better treatment than has been given to it by the High Court. Leave to appeal is, there fore, refused. Petition dismissed.