1988 PLP 631 (CLC)

Saadullah Khan v. Piayo Khan P L D 1970 Pesh. 150 and Ahmad Din v. Nawab Bibi 1980 S C M R 873 ref. Naveed Shahryar for Petitioners. Mohammad Abdul Saleem for Respondents. Date of hearing: 18th October, 1987. The facts, giving rise to this civil revision under section 115 C.P.C. are that Jallu son of Gehna, the last male owner, a Jat agriculturist, died in 1948 and the land held by him was mutated in favour of Mst. Rabian, his widow, as limited owner. Mst. Rabian remarried and then the land was mutated in the names of Mst. Rajo and Mst. Rasulan Bibi, the two daughters of Jallu. Mst. Rasulan Bibi died unmarried and the land was mutated in the name of Mst. Rajo, the surviving daughter. The collaterals of Jallu then filed a suit for possession on 9th of May, 1948. The learned trial Court, vide judgment and decree dated 29‑4‑1950 held that the collaterals were entitled to receive 19/24th share of the ancestral land. It is pertinent to point out that only 1/12th share of the land (subject‑matter of suit) forming part of the estate left by Jallu, deceased was ancestral qua the collaterals and the rest of the land was non‑ancestral land. The Court dismissed the suit with respect to the non‑ancestral land primarily on the findings that the daughter of the last male holder was entitled to retain the same for her life, and that Section 3 of Shariat Act, 1948 was not attracted to her case. As regards the ancestral property, it was held that the daughter having married after coming into force of the Shariat Act, the collaterals of the last male holder were entitled to their proportionate shares under the Shariat Law. The collaterals filed an appeal (RSA 48/50) against the decree but the same was dismissed by a Division Bench of the former High Court of West Pakistan at Lahore on 26th of January, 1955. Thereafter, as a result of enforcement of West Pakistan Muslim Personal Law (Shariat) Act 1962, Mutation No.3655 was sanctioned on 30‑6‑1967 whereby the share of the collaterals was duly recorded in the record. Another mutation of inheritance No.1122 to the same effect was also sanctioned in favour of the collaterals on 8‑10‑1968. Mst. Rajo filed another suit on 29‑1‑1967 for declaration that she was full owner and not a limited owner of the entire land i.e. the ancestral as well as non‑ancestral land. This suit was dismissed by the learned trial Court vide judgment and decree dated 27‑2‑1976. The first appeal filed by Mst. Rajo was dismissed by the first Appellate Court on 11‑1‑1977. The second appeal (RSA .179/77) filed by her was then dismissed by High Court of West Pakistan, Lahore on 8th of March, 1977. She then approached the Supreme Court by filing petition for special leave to appeal. This petition was dismissed by the Supreme Court on 11‑2‑1978. Mst. Rabian and Mst. Rajo, who are heirs of Jallu, deceased, the last male‑holder, thereafter filed the present suit for declaration respecting tie land measuring 110 kanals and 3 marlas to the effect that they have become full owners of the land through adverse possession. They also prayed for the grant of consequential mandatory injunction restraining the petitioner from interfering in their possession. The suit was dismissed by the learned trial Court vide judgment and decree dated 14‑1‑1981. The first appeal filed was, however, accepted by the learned Additional District Judge, Gujrat vide judgment and decree dated 2‑2‑1984. Hence, this revision petition' by the petitioners who are heirs of collaterals of Jallu.

2. Learned counsel for the petitioners argued that the right and entitlement of the collaterals of Jallu to inherit the land having been accepted and the land having been mutated in their names, the possession of one of the, co‑sharers will enure for the benefits of all the co‑sharers and as such the plea of adverse possession was not at all available to the respondents. It was added that no evidence was produced to establish the ouster of the petitioners, the co‑sharers. Reference was made to Muhammad Sohail v. Ghulam Rasul AIR 1941 Lah. 152, Said v. Said Bibi AIR 1929 Lah. 465, Saadullah Khan v. Piayo Khan P L D 1970 Pesh. 150 and Ahmad Din v. Nawab Bibi 1980 SCMR

873. Learned counsel for the respondents submitted that the petitioners having not executed for all these years the decree dated 29‑4‑1950, stand debarred to claim the said land respecting which the decree for possession was obtained. He argued that this decree cannot now be executed. It was added that even after sanction of the mutation of inheritance in 1967, no proceedings were initiated by the petitioners for obtaining possession of the land by seeking partition of the joint khata.

3. I have considered the respective contentions of the parties and have also gone through the impugned judgment of the learned), Additional District Judge. The learned Appellate Court was of they view that though the petitioners were declared co‑heirs yet they took no step to get physical possession of the suit land and as the respondents continued to remain in physical possession throughout) they perfected their title through prescription as their adverse possession extended over a period of more than 12 years. According to this finding, the decree obtained cannot now be executed as the execution stands barred by time. It was further observed that throughout this period and in all this litigation, Mst. Rajo has been denying the title of the petitioners and that she has thus remained in physical possession of the suit land not only to the exclusion of defendants openly and publicly but also adversely to the rights of the petitioners. On this premises, it was held that such hostile` possession entitled her to claim benefit of adverse possession.

4. The approach of the learned Additional District Judge to the case is fallacious and arbitrary. The proposition is well‑settled that property under Muhammadan Law devolves on all the heirs as tenants in common and the possession of one co‑sharer enures for the benefit of all the co‑sharers unless there is an ouster. (See 1980 S C M R 873 and P L D 1970 Pesh. 150 Supra). It is correct that non‑ancestral land was 1/12th of the land which formed subject‑matter of the suit decreed on 29‑4‑1950. The collaterals were held entitled to receive possession of 19/24 share out of the ancestral land. The khata being joint, the collaterals under the said decree could at best receive joint possession. They were shown in joint possession of not only the land to which they had obtained the decree but also of the other land which fell to their share on termination of life estate by entering and sanctioning mutation during consolidation in their favour on 30‑6‑1967. Their shares in the ancestral as well as self‑acquired land were again mutated in their names in the Revenue record by attesting mutation on the revenue side on 8‑10‑1968. The shares so mutated in the names of collaterals were upheld and confirmed by the Supreme Court in its judgment dated 11‑2‑1978. They were recognized as co‑sharers in the Revenue record and as such there was no need for them to execute the decree dated 29‑4‑1950. In fact, Mst. Rajo filed a suit for declaration that she was not a limited owner but full owner of the entire land. This challenge so made in the suit was unsuccessful as the suit was dismissed by the, trial Court on 27‑2‑1976. The matter was agitated upto the Supreme Court by the respondents unsuccessfully and the proceedings terminated in favour of the collaterals on 11‑2‑1978 with the dismissal of the petition for special leave to appeal by the Supreme Court. In these circumstances, it is ideal to urge that the prescriptive title had matured through ouster of the petitioners and adverse possession over the land in question. It is again well‑settled that unless physical ouster is satisfactorily proved, for which onus heavily lies on the party claiming adverse possession, a co‑heir remains in possession for the benefits of all other co‑heirs and it is open to the co‑heir to seek possession by initiating partition proceedings. No evidence whatsoever has been produced on record to establish the ouster. In fact none of the respondents entered the witness box to establish ouster.

5. The net result of the above discussion is that the respondents were unsuccessful in establishing their claim of adverse possession. The learned Additional District Judge acted illegally in reversing the judgment of the learned trial Court. The learned Appellate Court misconceived the position of law obtaining in the matter. The impugned judgment dated 2‑2‑1984 of the learned Additional District Judge is, therefore, set aside and the judgment and decree dated 14‑1‑1981 of the learned trial Court is hereby restored. Revision petition thus stands accepted with costs. S . Q ./ M‑445/ L Petition accepted.