2009 PLP 131 (CLC)

Orders on C.M.A. 1950 of 2007 MRS. QAISER IQBAL, J.

The defendant No.1 has filed application under section 3 of Limitation Act read with section 42, Specific Relief Act and Order VII, rule 11, C.P.C. seeking rejection of the plaint. Succinctly the facts leading to the controversy are that the parties are descendants/next of kins of deceased Mst. Razia wife of Muhammad Saleem died on 24th March, 1981, per following pedigree: Deceased had left behind immovable property bearing No.43/9/Success Block 6, P.E.C.H.S. Society, Karachi admeasuring 2000 square yards (hereinafter referred to as the suit property), which had devolved upon her legal heirs mutated in the record of Pakistan Employees Cooperative Housing Society Limited on 12-11-1995. It is averred that the suit property is in possession of the defendant No.1 from the last 22 years who is enjoying the fruits of the property, on demand refused to distribute the share of the other legal heirs, using ground floor as Tuition Centre, front portion of the house is used as Marriage Hall. The plaintiff has demanded his share in the income earned from the suit property, on refusal proceeded to file the suit for partition and administration, accounts and mesne profit. Mr. Muhammad Iqbal Kazi learned counsel for defendant No.1 has contended that the basic question requiring consideration is whether the plaintiff's suit is for partition or suit for administration by virtue of nature of each suit, one cannot be treated as another. Plaintiff is the son of the deceased. He had filed the suit for partition, administration and accounts. In para.6 of the plaint it is averred that the defendant No.1 is in absolute possession of the suit property from the last 22 years, admission itself attracts Article 144 of the Limitation Act would be applicable to the facts of the present case on account of the exclusion from the physical possession of the suit property and the demand of the distribution of the share as contained in para.7 of the plaint coupled with prayer clause. The plaintiff has prayed for partition of the suit property by metes and bounds sought compensation, rent and profits as well as declaration. Nowhere the administration of the estate of the deceased was claimed. It is next urged that mere mention of the word administration in the title of the suit would not bring the case within the ambit of administration suit therefore, even from the appraisal of the contents of the plaint filed on 31-1-2005 Article 144 of the Limitation Act would be applicable which provides that a suit for possession could be filed within 12 years whereas the defendant No.1 is in exclusive possession from the last 22 years and the limitation would commence from the date when the right of any such co-inheritor in suit-land is denied by the others in occupation of suit property and when the possession of the defendant became adverse to the plaintiff In support of the above contentions reliance is placed on the following case-law:

(1) Mst. Shah Sultana and others v. Abdul Khaliq and others 1987 SCMR 1791, (2) Mumber and others v. Ajaz Hussain and others 2007 SCMR 533, (3) Elijan Bewa v. Abdul Samad and others PLD 1867 Dacca 682, (4) Khutijan Edhi v. Zulmat Khan and others 1968 Dacca 172, (5) Bibi Raziqan v. Najeeb Khan and another AIR 1958 Pat.

530. The dictum laid down in above cases for possession based on prior dispensation when the parties are co-sharer Article 144 would be applicable if the suit is not based upon possession and dispossession then Article 142 does not apply to such a case if the suit is based on joint possession of the plaintiff with the other defendants but plaintiff alleged interference with the plaintiff's right or joint possession by the defendant to such a case Article 144 would apply. Learned counsel for plaintiff as well as the defendants Nos.3, 5 have contended that the format of the suit is in consonance of the guideline laid down for determination of the nature of the suit for administration in case of Mst. Ghazala Zakir v. Muhammad Khurshid 1997 CLC 167, after taking into consideration the entire case-law on the subject it was held that the nature of the suit was of administrative suit. Learned counsel for defendant No.1 has contended that nowhere in case reported as PLD 1977 Kar. 993 affirmed by the Supreme Court the dictum laid down is required to be followed. The observations of a Division Bench in the report of Asghar Ali v. Mst. Zohrabi and another 2001 MLD 122 it is observed that administration suit in absence of prayer for partition in the main suit is competent and maintainable as both the parties to the suit are the legal heirs of the deceased to inherit the property left at the time of their death. Reliance may also be made to the case of Mehdi Hussain Shah v. Mst. Shadoo Bibi and others PLD 1962 SC

291. Learned counsel for defendant has contended that the law of limitation is invalid and would not be applicable to the facts of the present case as by no way descendants of Mst. Razia could be deprived of their rights as held in case of Ghulam Ali and others v. Ghulam Sarwar PLD 1990 SC

1. At page 11 while dealing the law of inheritance in accordance with Islamic Jurisprudence dealing with express repudiation and ouster the following has been observed:

"While dealing with express repudiation and ouster, it was observed that:

There cannot be ouster without a demand and a refusal, or without a clear declaration brought home to the knowledge of the co-sharer that lesser profits share. A mere omission to pay profits does not in itself constitute ouster, and still less so, when something though not the whole, is paid. The mere partition among the males without reference to the female heirs does not mean much in the shape of ousting them from their rights. Circumstances may exist in which an inference of knowledge can be drawn, or in which the laches or negligence of the co-owners is so great that knowledge will be presumed but a case of that type would have to be exceptional. The law does not penalize a co-owner who relies on the honesty of his co-sharer, and therefore, ordinarily the mere fact that he does not take the trouble to assert his rights as he may be entitled to, would not justify an inference of ouster." Aminuddin v. MD. Abdur Rahman 1941 NLJ

467. Dealing particularly with females it is to be noticed that.

Where one is concerned with Pardanashin Muslim females, different consideration apply from those that apply between adult males even as regards adverse possession. In the latter case if the possession is neither obtained by force nor by fraud nor in secret, it does not matter that it is in fact not known to the person against whom adverse possession is alleged. The law is satisfied if that person would have known had he(?) been acquainted with what was going on in the world. In their case it is necessary to find not mere adverse possession but ouster. (Mrs. Fardos Jahan Begum v. Kazi Shafiuddin 1942 Nag. 75 (supra). It is again to be emphasized that on principle, in Islamic Law it is not possible to accept the claims of co-owners/inheritors when they are males and females together, the former seeking a right on the basis of adverse possession and outer against, the latter. The comments and precedents referred to above are only illustrative of a principle; which has to be restated more clearly." I have considered the arguments advanced at bar. The inheritance of Mst. Razia was in dispute between the parties who are descendants of the common ancestor. The plaintiff and the defendants as legal heirs had mutated their names in the record of Pakistan Employees Cooperative Housing Society on 12-11-1995. The defendant No.1 is in possession of the suit property whereas the plaintiff and other defendants are entitled to their share by way of partition of property administration and compensation claimed for. It is contended that the defendant No.1 is in possession of the suit-land from the last 22 years in exclusion of the plaintiff and other defendants. Undoubtedly the suit-land being joint there was no question of their remaining out of the possession or the suit being barred by law as the possession of 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. Even if the mutation was held in November, 1995, the suit was filed on 3-1-2005 within 9 years, even otherwise the mutation does not confer any right in the property, at the best it is an arrangement made on the fiscal side for ensuring the correctness of the record for that purpose as held in case of Anwar Muhammad v. Sharif Deen 1983 SCMR

626. The contention of adverse possession and limitation were repelled. The above view also finds support from the case of Tahir Ikramullah and 23 others v. Mst. Zubaida Khanum and others 2002 MLD 334, that in case of administration suit when a right of co-heir is involved the plaintiff had to be deemed always to have remained in possession of the immovable property left by her deceased father being a co-sharer her claim could not be barred by limitation, dealing with the adverse possession, the petitioners have become the owners. Learned Single Judge relyied on the verdicts in case of Mst. Omai and others v. Hakeem Khan and others 1970 SCMR 499, Waris Khan and 18 others v. Col Hamyun Shah and 41 others PLD 1994 SC 336, Mst. Roshan Akhtar v. Muhammad Boota and 4 others 2000 SCMR 1845, Muhammad Khan and 3 others v. Khan Bibi and 3 others PLD 1985 Quetta

105. In above precedents, following principle has been laid down:

"Possession of one co-heir, possession of all co-heirs" Mere non-participation in profits of property by one co-heir and exclusive possession by others not sufficient to constitute adverse possession. Persons failing to show ouster of co-heir from disputed property or that they were in its hostile possession. High Court, held, perfectly justified holding that adverse possession not proved." In the above analogy, I have come to the specific conclusion that Order VII, rule 11, C.P.C. is not attracted to the facts and circumstances of the case. Application being not maintainable in law is hereby dismissed. Parties are left to bear their own cost. M.B.A./A-137/K Application dismissed.