P L D 1952 Peshawar 70 (PLP)

MUHAMMAD SHAFI, J.‑One Ayaz of Teri, District Kohat, instituted a suit against his brother's son Makai, for possession of 125 kanals 16 marlas out of 377 kanals 8 marlas of land, situated in Manduri. He alleged in the plaint that one Sanab Gul. his second brother's son was the owner of this property, who having died in 1936, left it to him under the N.‑W. F. P. Muslim Personal Law (Shariat) Application Act, vi of 1935, and that Makai who was his (Sanab Gul's) first cousin was not entitled to any share in it. Makai on being summoned raised a preliminary objection that one Mst. Basinda (Samanda) the mother of Sanab Gul, was a necessary party to the suit, and that she should, there fore, be impleaded as such. The plaintiff conceded this objection, and as a result thereof Mst. Basinda, on 11th January, 1949, was made a party to the suit. Both the defendants resisted the plaintiff's claim Makai inter alia pleaded that the suit was barred by time, that Sanab Gul had died much before the enforcement of the North‑West Frontier Province Muslim Personal Law (Shariat) Application Act; VI of 1935 and that the plaintiff, therefore, was entitled only to half of the suit property and not to the whole, under custom which was at that time the Rule of Decision in matters of inheritance. The following issues were framed in the case ? "(1) Whether the suit is within time ? (2) Whether the suit at the time of institution was de fective and what is its effect on the present suit ? (3) Whether plaintiff is the sole heir of Sanab Gul ? (4) Whether the suit‑land belonged to Sanab Gul and to how much share is the plaintiff entitled ? (5) Whether the value for the purposes of Court‑fee and jurisdiction is correct ? (6) Whether Mst. Samanda incurred the funeral expenses of her son ? If so, how much and whether plaintiff is bound to pay for that ? ‑ (7) Whether D. 1 is in adverse possession of the suit land ? (8) Whether the suit‑land has been rightly described ? (9) Whether plaintiff is estopped from bring this suit ? (10) Relief." The learned trial Judge decided issues Nos. 1 and 2 to gether. He observed as follows :‑‑ "It is also conceded by the counsel for the plaintiff that the period for such a suit is 12 years. Section 22, Limitation Act lays down that so far as Mst. Basinda is concerned the suit is time‑barred. The defendants counsel argued that as the point involved in the suit is a common question namely whether the parties are governed by Shariat or Custom and as the suit could not proceed without Mst. Samanda being a necessary party. Therefore, the Whole suit is liable to dismissal even if no relief is claimed against the added defendant .So I hold that the suit became time‑barred on 11th January, 1949 and was not properly constituted on the first day of its institution." He also decided issues Nos. 3 and 4 together, and held that Sanab Gul died before the enforcement of the Shariat Act. because the plaintiff had failed to prove that he died in 1936. Under these circumstances he found that according to custom the plaintiff and defendant No. 1 were both entitled to Sanab Gul's property in equal shares. He did not decide the rest of the issues and dismissed the plaintiff's suit with costs. The learned Additional Judge Peshawar, dismissed the appeal on 2nd July, 1951. His judgment is more or less a paraphrase of the judgment of the learned trial Court, and it appears that he like the trial judge did not try to understand the case at all. The plaintiff has come up in revision to this Court. Both the Courts below have failed to mention in their judgments as to which particular Article of the Limitation Act applied to the case, and 'Why was the plaintiff's suit barred by time. It is, now a settled law that the co‑heirs of a Muslim dying intestate take the property as tenants‑in‑common, and none of them can be regarded as a person who is by law charged with any duty of distributing the estate. Consequently it will be Article 120 or Article 140 (144 ?) of the Limitation Act, which, according to the nature of the property whether it is movable or immovable, would apply to the suit brought by ,one heir against the other, for the declaration of his title to or partition of the property. Applying Article 144 of the Limitation Act the time does not run from the date of the death of the last owner, but from the date when the possession of the defendant becomes adverse to the plaintiff. The state ment of the patwari recorded by the learned trial judge shows that the property in dispute is either in possession of Ayaz or in joint possession of all the co‑heirs, with the exception of one single khasra number, which has been in possession of defen dant No. 1 for a period of only a few years. It therefore, posi tively follows that on none of the khasra numbers in dispute did Makai defendant have any adverse possession much less such possession for a period exceeding twelve years. Ayaz's suit consequently even if it be considered to have been brought when Mst. Basinda was made a party to it would be clearly within time, and both the Courts below were wrong in holding that on such date his suit had become statute barred. I wish to take this opportunity to warn the Courts that it is a very wrong practice to hold a certain suit barred by time or within time without mentioning the Article of the Limita tion Act, which governs the case. It is equally wrong for the Courts to accept the argument of one counsel or the other on the question of law without intelligently following those arguments. If a Court decided a question of limitation with out making a special reference to the law which is applicable to the case, it is invariably liable to commit a blunder, as has been done by the two Courts below in this case. As regards the fact as to when Sanab Gul died, it appears from the statement of the plaintiff that he died when some partition proceedings were in progress. The learned trial Court in order to find out the exact date of the death of Sanab Gul should have sent for that partition file, from which it would, in my view, have been positively proved as to when Sanab Gul's inheritance opened. Apart from the above fact, I think the learned trial judge while recording the evidence of the patwari did not take intelli gent interest in it. The first sentence of the cross‑examina tion of the patwari shows that at the time of Sanab Gul's death, he left about 27 khasra numbers. Immediately after, the patwari went on to stat that Sanab Gul had specific shares in these khasra numbers. This second portion of the statement contradicted the first portion, but the contradiction has not been explained on this record: Further on the patwari talked of some partition between the co‑owners and deposed that nine khasra numbers were allotted to the shares of Sanab Gul and one Sohrab. This part of the patwari's state ment nullified his entire previous statement made on cross- examination. Both the learned counsel appearing before me have not been able to explain to me as to what was the property of Sanab Gul, which had to be divided between the parties irrespective of the fact whether the division was to be under the Muslim Law or Custom. The learned trial Judge should record the evidence of the patwari once again. It may be noted that the patwari referred to certain mutations in his statement, but those mutations or the copies thereof were not placed upon this record. Muta tions and other revenue papers play a very important part in land suits, and it is most undesirable, if not strictly against law, to bring the contents of those documents on the record from the mouth of the oral witnesses without placing the original or the copies thereof on the file. I am consequently constrained to accept this revision petition, set aside the judgments and decrees of the two Courts below, and send the case back to the trial judge to decide it afresh according to law and in the light of the ob servations made above. Costs to follow the event. Orders announced. A. H. Petition accepted.