P L D 1965 (W (PLP)

MUHAMMAD DAUD KHAN, J.‑The following table will help in understanding the pedigree of Mir Taj Ali and Abdul Khaliq, J who were the owners of the property in dispute in the present suit, out of which these two regular civil appeals have arisen : X ______________________________|_____________________________ | | Dauran Ahmad Shah | | Muhammad Gul Pir Zada | | Muhammad Azim | | | Gulab Din ____________________________| ______________| __________________|___________________________________ | | | | | Gul Andaz Abdul Mst. Mst. Mst. | Khaliq Raibana Maikhana Mehrjana | | | | | Mir Taj Mst. Sardara Sher | Said Nawaz Ali (deceased) Zaman | ____________________________________|_______ | | | Mst. Marjana. Sardar Mir Nawaz.

2. Abdul Khaliq, deceased‑husband of Mst. Sardara and Mir Taj Ali, the nephew of Abdul Khaliq, were owners of the lands in dispute situated in villages Ismail Khel, Tughal Khel, and Ketka Naqashband, Tahsil Bannu, of the Bannu District. They also owned a house in village Ismail Khel. Abdul Khaliq died in 1927, and his property was mutated in the name of his widow, Mst. Sardara, as a limited owner under the customary rule of inheritance which was then in force. Mir Taj Ali died in 1932. His lands situated in Ketka Naqashband were mutated in favour of Mst. Sardara by mutation No. 275 attested on the 21st of May 1931, of village Ismail Khel, by mutation No. 3499, attested on the 4th of June 1932, and of Tughal Khel by mutation No. 5249 attested on the 10th of May 1931. In the order of attestation the Revenue Officer had recorded that the lands were mutated in the name of Mst. Sardara as chachi of Mir Taj Ali deceased. In the certified copy of mutation No. 5249 produced in the lower Court, the words "ta ain hayat" were added, but the evidence was produced to prove that on the original mutation these words did not exist and it was after obtaining the copy that these words were added. About the addition of these words we will discuss the evidence, etc. and its effect separately in this judgment.

3. Mst. Sardara was murdered on the 21st of January 1946. On her death, all the landed property, which she inherited both from Taj Ali Khan and Abdul Khaliq was mutated in favour of defendants Nos. 1 to 6 under Shariat, by mutation No. 5163 of village Ismail Khel, attested on the 5th of September 1946, by mutation No. 8479 of village Tughal Khel, attested on the 5th of June 1946, and by mutation No. 472 of Ketka Naqashband, attested on the 5th of June 1946. Before her murder, Mst. Sardara had been dealing with this property as her full property as would be envisaged from the following alienations which she had made from time to time. (1) Out of land in village Ismail Khel she gave land in exchange by mutation Nos. 4853 and 4859, attested on the 15th of June 1944. (2) Partitioned land of the same village by mutation No. 4860, attested on the 15th of June 1944. (3) Exchanged lands of the same village by mutations Nos. 4913 and 4912 attested on the 7th of August 1944. (4) Redeemed the mortgaged lands of the time of her husband by mutation No. 7972, attested on the 14th of June 1944, in village Tughal Khel. (5) Redeemed the mortgaged lands of her husband by mutation No. 8117, attested on the 5th of November 1944. (6) Redeemed the mortgaged lands from Pio Khan, by mutation No. 8118, attested on the 5th of November 1944, in the same village. (7) From village Ketka Naqashband, she mortgaged land, Khasras Nos. 50 and 57 to Mazal Mir, by mutation No. 409, attested on the 6th of December 1941, for Rs. 130 (this was the exclusive property of Mir Taj Ali), and then redeemed it by mutation No. 465 attested on the 5th of November 1944. (8) Land mentioned in item No. 7 above was mortgaged by her to Mir Pio by mutation No. 469, attested on the 9th of August 1945, and the mortgagee rights were sold by Mir Pio to Sher Ali, by mutation No. 499, attested on the 23rd of November 1947. (9) In village Naqashband a land mortgaged to one Nur Jan was redeemed by mutation No. 461 attested on the 5th of November 1944. (10) Land, bearing Khasra Nos. 60 and 46, of village Naqashband, joint property of Abdul Khaliq and Mir Taj Ali, was mortgaged to Nur Jan by mutation No. 431 attested on the 11th of August 1942, and then redeemed it by mutation No. 462 attested on the 5th of November 1944.

4. It may be mentioned here that Sher Zaman and five others, who figure as defendants Nos. 1 to 6 in the present suit instituted a suit in the Court of the Senior Sub‑Judge, Bannu on the 8th of February 1952. Mir Pio, one of the plaintiffs of the present suit, was a defendant, alongwith one Sher Ali Khan. This suit was for possession of land, bearing Khasra No. 50, measuring 7 kanals 9 marlas, and Khasra No. 57, measuring 9 marlas, situated in village Naqashband, Tahsil Bannu. They claimed this land as having acquired it by virtue of the inheri tance of Mir Taj Ali and Abdul Khaliq. This suit was dismissed on the 12th of September 1956, on the ground that the plaintiffs had failed to prove that they were the legal heirs of Abdul Khaliq and Mir Taj Ali under the Shariat.

5. On the murder of Mst. Sardara in respect of the entire property which she inherited from her husband, Abdul Khaliq, and Mir Taj Ali, the nephew of her husband, the inheritance mutations mentioned above were attested in favour of defendants Nos. 1 to 6, in the following manner: (a) Gulabdin . . . . . 3/9th share. (b) Sher Zaman, son of Mst. Raibana . . . . . . 2/9th share. (c) Mst. Maikhana . . . . . . 2/9th share. (d) Mst. Mehrjana . . . . . . 2/9th share. Mst. Maikhana has since died and her share was inherited by her sons, Mir Nawaz and Sardar, and daughter, Mst. Marjana. Mst. Mehrjana had also died, and her share was inherited by her minor son, Said Nawaz.

6. In 1947, Gulabdin gifted the 3/9th share inherited by him in the name of Muhammad Qasim.

7. By a registered sale‑deed, dated the 14th of December 1949, Muhammad Qasim, Sher Zaman, and the sons and daughter of Mst. Maikhana, sold the land inherited by them to Mr. Munawar Khan, Advocate, Bannu (defendant No. 7).

8. On the 17th of March 1952, Mir Pio and Ghazimar Jan instituted this suit against Mr. Munawar Khan, the heirs of Abdul Khaliq and Mir Taj Ali, Muhammad Qasim, the transferee from Gulabdin, and also certain transferee from the heirs of Abdul Khaliq and Mir Taj Ali, for the possession of 1/4th share of the property left by Abdul Khaliq, and for the possession of the whole property left by Mir Taj Ali. The plaintiffs alleged that Mst. Sardara, on her death, was entitled to 1/4th share of the property left by her husband, Abdul Khaliq, as her Muhammadan Law heir, and that they, as heirs of Mst. Sardara (Mir Pio plaintiff No. 1 being her husband and Ghazi Marjan plaintiff No. 2 being her full brother), were entitled to 1/4th share, that Mst. Sardara had also matured her title to the whole of the property left by Mir Taj Ali by adverse possession, and they were, therefore, entitled to the same as her Muhammadan Law heirs. They further claimed that the transfers effected by the heirs of Abdul Khaliq and Mir Taj Ali, in whose names the property had been mutated, were not binding on them.

9. Defendants Nos. 1 to 7, namely, those who style themselves as heirs of Mir Taj Ali and Abdul Khaliq, and Mr. Munawar Khan, who purchased a part of this land from some of them, contested the suit, while the rest were proceeded against ex parte in the Court of the first instance. On the pleas of the parties, the trial Court framed the following issues:‑ (1) Whether the suit had been properly valued for court‑fee and jurisdiction 7 (2) Whether the suit was bad for misjoinder of parties and causes of action? (3) Whether the suit was within time? (4) Whether Mst. Sardara inherited 1/4th share of the property left by Abdul Khaliq? (5) Whether Mst. Sardara matured her title to the property of Mir Taj Ali by adverse possession? (6) Whether 1 kanal 16 marlas of land and 3 kanals 5 marlas of land described in the heading of the plaint had been acquired by Mst. Sardara? (7) Whether Mst. Sardara was the legally wedded wife of Mir Pio and the sister of Ghazimarjan? (8) If issue No. 7 was proved in the affirmative to what share were the plaintiffs entitled in the suit property? (9) Whether the gift made by Gulab Din in favour of Qasim was void and ineffective as against the plaintiffs? (10) Whether the transfers effected by defendants Nos. 1 to 6 in favour of the rest of the defendants were illegal and ineffective as against the plaintiffs ? (11) Whether defendant No. 7 Mr. Munawar Khan was a bona fide purchaser for consideration without notice, and if so, was he protected by section 41 of the Transfer of Property Act ? (12) Whether defendant No. 7 had redeemed the suit land from the mortgagees defendants, and if so, what was its effect? (13) Whether defendant No. 7 had effected any improvement on the suit property, if so, to what amount if any was he entitled on that account? (14) To what relief were the plaintiffs entitled? (15) Whether the plaintiffs were estopped by their conduct from instituting the present suit?

10. After recording the evidence produced by the parties, the learned Senior Civil Judge, Bannu, held in his judgment, dated the 12th of September 1956, that the suit was properly valued, that it was not bad for misjoinder of parties, that it was within time, that Mst. Sardara inherited, one‑fourth share of the land left by Abdul Khaliq, that Mst. Sardara did not mature her title by adverse possession to the property left by Mir Taj Ali, that 1 kanal 16 marlas, and 3 kanals 5 marlas had not been acquired by Mst. Sardara, that the plaintiffs were not the heirs of Mst. Sardara, and that they were not entitled to any share in the property. The learned trial Judge, without giving any findings on issues Nos. 9 to 15, as in his view the decision on issues Nos. 7 and 8 was sufficient to dispose of the case, dismissed the suit with costs against the defendants.

11. Mir Pio and Ghazimar Jan plaintiffs appealed against the judgment and decree of the trial Court, wherein they had assailed its findings on issues Nos. 5, 7 and 8.

12. The learned District Judge, in his judgment, dated the 25th of September 1957, confirmed the finding of the learned trial Court with respect to Mir Pio plaintiff, holding that he had failed to prove that he was the husband of Mst. Sardara at the time of her murder, but set aside the finding with respect to Ghazimar Jan, and found that the material on the record was sufficient to prove that he was the brother of Mst. Sardara and was entitled to inherit the property which she owned under the law. The learned District Judge found that Ghazimar Jan alone was entitled to 1/4th of the estate of Abdul Khaliq as heir of Mst. Sardara being her brother. He further found that Mst. Sardara was holding a limited estate with respect to the estate of Mir Taj Ali, and after her death, the heirs of Mir Taj Ali were entitled to inherit it, and since none of them was the heir of Mir Taj Ali, therefore, none of the plaintiffs was entitled to have the estate of Mir Taj Ali after the death of Mst. Sardara. The learned District Judge, however, thought that the material on the record was sufficient to decide issues Nos. 9 to 15 which were left undetermined by the learned trial Judge, and therefore, he himself decided these issues, and as a result, granted a decree in favour of Ghazimar Jan up to the extent of 1/4th share of the property left by Abdul Khaliq, and dismissed the claim with respect to the estate of Mir Taj Ali, leaving the parties to bear their own costs. The plea of Mr. Munawar Khan (defendant No. 7) that he was protected by section 41 of the Transfer of Property Act did not find favour with the learned District Judge, and the alienations in his favour to the extent of 1/4th share of the estate of Abdul Khaliq were held to be null and void.

13. The plaintiffs have come up to this Court in regular second appeal (Appeal No. 173/1957), wherein Mir Pio plaintiff assailed the finding of the Courts below of his not being the husband of Mst. Sardara deceased, and the plaintiffs also assailed the finding of the Courts below for not having found Mst. Sardara to be the full owner of the estate of Mir Taj Ali by virtue of adverse possession.

14. Mr. Munawar Khan (defendant No. 7) also lodged an appeal (Appeal No. 179/1957), wherein he assailed the finding of the learned District Judge in holding that section 41 of the Transfer of Property Act does not protect the alienations in his favour to the extent of 1/4th share of the estate of Abdul Khaliq deceased, and also finding that Ghazimar Jan was the brother of Mst. Sardara. These two appeals were heard together by us, and this judgment will govern both of them.

15. Before we proceed to decide the points raised in these appeals by counsel for both the parties, it would be pertinent to give the reasons which prevailed with the learned District Judge in finding that Mst. Sardara had not matured her title by adverse possession in the estate of Mir Taj Ali in his own words:‑ "It is admitted by the parties that Mst. Sardara came into possession of the property or Mir Taj Ali in 1932 and that she remained in possession of the property till 1946, when she was murdered. The only point to be determined is as to whether she had entered into possession of the property as a limited owner or as a full owner and bad held it adversely to the reversioners. It has not been denied by the parties, as has been held by the learned lower Court, that according to the Bannu customary law a widow could not succeed to the property of the collaterals of her husband as a limited owner. In the circumstances it is, therefore, evident that the mutation regarding the property of Mir Taj Ali had wrongly been recorded in the name of Mst. Sardara. The view of the learned Senior Sub‑Judge that Mst. Sardara had inherited the property of Mir Taj Ali for her life under a special custom, which had not been disproved by the appellants, is simply fantastic. A general custom of the District was that a widow could not inherit collaterally. It was for those to prove that she inherited under a special custom who alleged the existence of such a custom. The special custom, if any, was not even alleged by the defendant‑respondent and if at all he was to rely upon, it was for him to have proved it. The plaintiffs appellants could not produce negative evidence when there was no positive evidence in support of a fact. I am, therefore, of the opinion that Mst. Sardara could not inherit the property of Mir Taj Ali as a limited owner and that the mutation in her name had been attested due to an erroneous view taken of the customary law. In view of the above, it has, therefore, to be seen whether the possession of Mst. Sardara on the property of Mir Taj Ali was adverse or not. Counsel for the appellants asserted that since Mst. Sardara entered in possession of the property to which she was not entitled and since she has been mortgaging and exchanging portions of it, she therefore, considered herself as full owner and consequently matured her title by adverse possession. I however do not find myself in agreement with him, Mst. Sardara entered in possession of the property of Mir Taj Ali when a mutation in her name was attested in 1932. The mutation in her name was attested as she had been erroneously taken to be the limited heir of Mir Taj Ali, otherwise the mutation would never have been attested in her name as females did not inherit in those days when custom was the rule of law. It is also evident that she too must have had the impression that she was inheriting the property as limited owner as no mutations were then attested in the names of females except those of limited interests. There is no doubt that she has transferred a portion of the property of Mir Taj Ali but at the same time she has been dealing in the same way with the property of Abdul Khaliq mutated in her name of which she was admittedly a limited owner. Even the plaintiffs in their statements have admitted that Mst. Sardara generally throughout had friction with the reversioners of Abdul Khaliq and Mir Taj Ali over the property of Abdul Khaliq and Mir Taj Ali. This clearly shows that she herself and the reversioners were treating her interest as limited. It is highly improbable that the reversioners of Mir Taj Ali would have kept quiet for such a long time if Mst. Sardara had given them the slightest indication that she was considering herself as the sole owner of the property of Mir Taj Ali, especially when she was not entitled to it either under custom or under Muhammadan Law. Taking all the circumstances of the case collectively into consideration, I am of the opinion that Mst. Sardara has all along been treating herself as a limited owner of the property of Mir Taj Ali. In the circumstances the question of her adverse possession on the land does not arise, as she had no intention of possessing the land adversely. I, therefore, upheld the finding of the learned Senior Sub‑Judge, on this issue."

16. One of the two points involved in the appeal of the plaintiff-appellants relates to the question of Mst. Sardara having become the full owner of the estate of Mir Taj Ali by adverse possession. This point is very vital which requires full considera tion, both on facts, as well as on law. The second point involved in the appeal of the plaintiffs‑appellants is whether Mir Pio (plaintiff No. 1) was proved to be the husband of Mst. Sardara, and therefore, he t6o is entitled to a share out of the 1/4th share of the property which Abdul Khaliq had left at the time of her death. This second point is not of much importance, because Ghazimar Jan, who if found to be a brother of Mst. Sardara, had admitted Mir Pio to be the husband of Mst. Sardara, at the time of her death, then he would have shared out of 1/4th share, and since there is no dispute between the claimants to this share, Mir Pio will get it privately from Ghazimar Jan, although it was ultimately found that judicially it could not be proved that Mir Pio was the husband of Mst. Sardara when she died. Moreover, this second point does not require any consideration in this Court as it involves a question of fact, on which there is a concurrent finding of both the Courts below. We, therefore, dispose of this point without going into the question of fact, by holding that this question of fact cannot be reagitated in this second appeal.

17. The question of adverse possession of Mst. Sardara on the estate of Mir Taj Ali is one of great importance, and we propose here to consider it in detail. All the three mutations relating to the inheritance of Mir Taj Ali of the land situated in the three villages mentioned above does not state expressly that Mst. Sardara inherited it as a limited owner. The words "that the inheritance mutations were attested in favour of the chachi of Mir Taj Ali" do not necessarily imply to that effect. As found by the learned District Judge, under the general custom of Bannu District, the wife of a predeceased uncle is neither entitled to inherit a limited estate, nor as a full owner collaterally. This finding on the question is not seriously challenged before us, nor any special custom was alleged to have been proved, or pointed out to us in this second appeal. It is, therefore, clear that Mst. Sardara entered into the possession of the estate of Mir Taj Ali in all the three villages on the basis of the mutations in her favour which were not based on any custom or law. The learned District Judge had also conceded that she had entered into possession of the entire estate of Mir Taj Ali without any legal right. If this was so, the learned District Judge was not right in holding that since the females could inherit in those days only a limited estate, therefore, Mst. Sardara must have considered herself to be a limited estate holder of the estate of Mir Taj Ali. On the other hand, a number of judgments cited before us point out that when a female enters into a property erroneously even as a limited owner, she prescribes title to it after the lapse of twelve years.

18. Mr. Abdullah Jan Advocate, Bannu, who appeared for the plaintiff appellants in the plaintiffs' appeal, and as the plaintiff respondents in the appeal of Mr. Munawar Khan, relied on Ch. Satgur Prasad v. Raj Kishore Lal (A I R 1919 P C 60). It may be mentioned here that Mst. Sardara had been dealing with this property by way of mortgaging and exchanging it since 1944. Had she considered herself to be a limited owner she would not have dared to do so. The argument of the learned District Judge that she had also been dealing with the property of her husband as a limited owner in spite of the fact that she could not consider herself as a full owner with respect to that property and, therefore, the alienations of Mir Taj Ali Khan's estate would not necessarily imply that she was considering herself as the full owner of the property, is not of much substance. Even the widows holding limited estates in the presence of special circumstances and conditions were competent to alienate their husband's property. Referring to the Privy Council's decision quoted above we find that their Lordships had found in the following words:‑ "Where a Hindu widow held exclusive possession of her husband's estate as his heir, got mutation in her name and asserted upon title by making gifts for religious purposes, etc., it was held that the widow was in adverse possession of the estate as against the reversioners and her possession was not in lieu of maintenance."

19. Further Kali Charan and others v. Mst. Peare alias Peari (A I R 1924 All. 740), had been relied upon. This is a judgment which has been based on circumstances quite similar to the circumstances of the present case, and therefore, applies with great rigour to this case. In this judgment it has been held: "A widow of undivided brother holding portion of joint property for over the statutory period can acquire full owner ship of that portion by adverse possession and not only a widow's estate."

20. In the present case, the chachi was not entitled to inherit collaterally even the limited estate, as was the case of the widow of undivided brother. When a widow enters an estate and remains there for the statutory period of twelve years then she becomes the full owner by adverse possession. This was held in Rikhdeo Tewari v. Sukhdeo Tewari and others (A I R 1928 All. 45). In this judgment it had been found: "Where a Hindu widow is not entitled to a Hindu widow's possession at the time when she obtained possession of certain property, she obtains an absolute title in the property by adverse possession and that absolute title is acquired not only against the reversioners of the property but as against any reversioner to her husband's property."

21. Counsel further relied on Abdur Rahman Khan v. Ahmad Khan and another (A I R 1933 Oudh 427), wherein it was held:‑ "Where a woman who has no right to a property holds it for more than 12 years publicly and continuously, she becomes the absolute owner of such property by adverse possession and a mortgage of such property by her is valid and enforce able." In the instant case, Mst. Sardara has no right to the property of Mir Taj Ali, and held it for more than 12 years continuously and had openly been making alienations of parts of this property. This later judgment is, therefore, fully applicable to the circum stances of this case.

22. Counsel further relied on Mst. Shanti Devi v. Man! Singh and others (A I R 1938 Lah. 6 (b)). The possession of Mst. Sardara was one of a trespasser because she had no right to enter into Mir Taj Ali's property after his death. In the later judgment it has been found:‑ "It is sufficient that the possession of the trespasser should be overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due vigilance to be aware of what is happening." In this case we may say that the argument of the learned District Judge that the reversioners were unaware of the Customary Law, and therefore, they had kept silent over the erroneous mutations of the estate of Mir Taj Ali in the name of Mst. Sardara cannot be used to the benefit of the reversioners. The well known principle "ignorance of law is no excuse" applies, and if the reversioners in fact were not aware of such legal position, they should have discovered it if they had exercised due diligence. The learned District Judge found that the plaintiffs had admitted in their statements that the reversioners had remained dagger drawn with Mst. Sardara during her lifetime over her inheriting the estate of Mir Tai Ali, and therefore, this circumstance would 'show that Mst. Sardara's entry into the property of Mir Taj Ali was without any justification, and it was for this reason that they had been on inimical terms with her.

23. Counsel further relied on Abdul Ghani and others v. Mst. Taleh Bibi and another (P L D 1962 Lah. 531), wherein on page 545, in the last portion of paragraph 30, it was found:‑ However as Mst. Naziran Bibi has been in possession of the land for more than twelve years, but was not entitled to it in her own right, she bad become owner of it by reason of adverse possession on this ground alone the appellants' suit should have been dismissed, even if the trial Court had found the first issue in their favour."

24. To sum up discussion on this point, it is obvious, however, that Mst. Sardara was not entitled to inherit the estate of Mir Taj Ali under the general custom in any capacity, namely, the limited ownership or complete ownership, or due to maintenance. If, as said by the learned District Judge in his judgment, the mutations of the estate of Mir Taj Ali were attested in her favour due to the erroneous view of the custom then she entered into the property without any legal right. Her possession, therefore, would be one of a person not better than a trespasser. Since her possession was open and hostile, and since she had been dealing with this property since 1944, this too is indicative of her intention, how she considered herself to be interested in the property. These facts which the learned District Judge had himself discussed should have necessarily led him to the conclusion that she had matured her title to the property of Mir Taj Ali by adverse possession. The argument which he advanced for finding that Mst. Sardara might have been considering herself to be in possession of the property as a limited owner should have led him to the quite contrary view if he had tried to understand the implication of her possession without any lawful right. If she was considering herself to be a limited owner, even then her title would have matured after the lapse of twelve years because she cannot be a limited owner of the estate of Mir Taj Ali, the nephew of her predeceased husband. In other words, she could not even inherit limited estate collaterally. From both the position, namely, as her having limited estate, or full estate, by virtue of an erroneous impression, would confer on her the same benefits under Article 144 of the Limitation Act, and the learned District Judge, by making this distinction, had committed a legal mistake.

25. Mr. Abdul Latif Khan, counsel for Mr. Munawar Khan had not been able to cite any authority to the contrary, that if the widow of a predeceased uncle inherited the property of his nephew collaterally without any custom or law would still be a limited owner under the custom. Khan Abdul Latif Khan's contention was the property of Mir Taj Ali, which she inherited after his death by virtue of the three mutations would be considered as accretion to the estate which she inherited as limited owner from her husband. In support of this contention he referred to Mst. Ghulam Ilahi v. Muhammad Waris Khan (P L D 1955 F C 31), wherein it has been held:‑ "The principle of law is that possession is not to be considered adverse if its origin can be referred to a lawful title whenever that is possible, because a person who claims to have entered into possession as a trespasser will be presumed not to have done so if at the time he so entered he had some lawful title to possession." "Where the custom by which the parties were governed was that a daughter was entitled to maintenance and sometime succeeded to the property till her marriage, the presumption, in the absence of clear evidence to the contrary, must be that she entered into possession under that custom and not that she was a trespasser ab initio." "The daughter therefore was not in adverse possession of land she had acquired under custom."

26. The above judgment of their Lordships of the Federal Court goes against Mr. Munawar Khan, rather than in his favour. It was for the defendants to have shown that the widow of the predeceased uncle was entitled to the estate of her predeceased husband collaterally under the general custom or she was entitled to the possession of the property in lieu of her maintenance. Unless such legal right to possession had been proved in the present case, the possession of Mst. Sardara therefore would be that of a trespasser ab initio, and as such, the estate of Mir Taj Ali in the present case cannot be treated as accretion to the estate of the husband of Mst. Sardara. Similarly, in Diwan Singh and another v. Natha Singh and others (A I R 1937 Lah. 468) referred to by Khan Abdul Latif Khan, the same principle had been proponded. Unless it is proved that the widow was entitled to inherit collaterally, this judgment too would not be of any avail to him. In our view, therefore, Mst. Sardara had become full owner of the property after the lapse of twelve years of the entry into the property of Mir Taj Ali after his death. It is not denied that twelve years had expired long before the institution of the suit. Mst. Sardara had, therefore, become the full owner of the estate of Mir Taj Ali by adverse possession. This point is, therefore, decided in favour of the plaintiff‑appellants.

27. Out of the two points raised in the appeal of Mr. Munawar Khan, one is that the alienations in his favour were protected by the principle laid down in section 41 of the Transfer of Property Act, and the other is that Ghazimar Jan (plaintiff No. 2) was erroneously found to be the brother of Mst. Sardara deceased.

28. We can dismiss the second point summarily for the short reason that this involves purely a question of fact, and Mr. Munawar Khan has failed to convince us that this decision was based on evidence which was not on record, or it was based on 1 misreading the evidence on the record. The decision of the learned District Judge therefore, on this point is final in law, and cannot be reagitated in second appeal in the High Court.

29. The learned District Judge, in discussing the first point, namely, that the alienations in favour of Mr. Munawar Khan were not protected by the principle embodied in section 41 of the Transfer of Property Act, had remarked in his judgment which should better he reproduced in his own words:‑ "The first contention of Mr. Munwar Khan is that the plaintiffs had allowed the vendors to deal with the land as if they were the sole owners and that thus he had the belief that the plaintiffs had no right in the property. I am, however, of the opinion that there is no evidence to show that the plaintiffs gave out the vendors as the owners of the land in dispute. The plaintiffs‑appellants had appealed against the mutations attested in the names of the vendors and had strained relations with the vendors on account of the murders mentioned above. In the circumstances the plaintiffs could never have given out the impression to anybody that the vendors were the sole owners of the land." "In the second place, Mr. Munawar Khan's contention is that in 1949 when he purchased the land, the plaintiffs as the Muhammadan Law heirs of Mst. Sardara were not entitled to any share in the land sold by Mst. Sardara as limited owner. He asserted that the N.‑W. F. P. Muslim Personal Law Shariat Amendment Act, 1950, which entitled the heirs of a limited owner to the Muhmmadan Law share of the limited owner, was passed after the sale in his favour and that thus he was a bona fide purchaser having the belief that the plaintiffs could not claim any share in the property. There is no doubt that according to the various rulings of the late N.‑W. F. P. Judicial Commissioner's Court up till 1949, the heirs of a limited owner were not entitled to the Muhammadan Law share of the limited owner on the death of the limited owner as the limited owner had enjoyed her life estate in lieu of her Muhammadan Law share, but this does not mean that Mr. Munawar Khan can claim the benefit of section 41 of the Transfer of Property Act in the circumstances. One of the essential ingredients of section 41 is that the person selling the property should be in possession of it as an owner with the express or implied consent of the real owner. In the present case the vendors were never in possession as owners with the express or implied consent of the plaintiff‑appellant. The provision of section 41 of the Transfer of Property Act can have, therefore, no application to the present case."

30. In our view, the finding of fact and law on this point of the learned District Judge is quite sound. To prove that Mr. Munawar Khan vendee (defendant No. 7) was given the impression by the plaintiffs that the venders had a valid title, Mr. Munawar Khan defendant himself appeared in the witness‑box as his witness and produced Mir Pio (plaintiff No. 1) on this point. He also produced his vendors in support of his contention. The vendors are interested parties, and so was Mr. Munawar Khan himself. Mir Pio (plaintiff No. 1) has been non‑suited, and his statement cannot in any way affect the right of Ghazimar Jan (plaintiff No. 2), who was ultimately found to be the sole heir of Mst. Sardara. Mr. Abdul Latif Khan relied on Muhammad Din and another v. Mst. Sardar Bibi and others (A I R 1927 Lah. 666), In this judgment it is laid down:‑ "Where the revenue entries show a person as the sole proprietor of certain land and there are no other circumstances leading the purchasers of such land from the proprietor to go behind the revenue records and make any further inquiry the vendees are fully protected by the principle under lying section 41."

31. On the other hand, Mr. Abdullah Jan relied on Husan Ali and another v. Azmaluddin and others (P L D 1963 Dacca 486) wherein it has been laid down as follows:‑ "It is for the party relying on section 41 of the Transfer of Property Act to establish the facts which according to him would entitle him to the benefit under that section. Section 41 of the Transfer of Property Act makes it incumbent on the transferee to act in good faith and to take reasonable care to ascertain that the transferor had power to make the transfer. It is obvious that the first step, which the transferee is expected to take is to search the registration office to ascertain what transfers, if any, had been made by the transferor. The transferee is not entitled to the benefit of section 41 of the Transfer of Property Act if he or she fails to do so."

32. In our view, taking the facts and the circumstances of the case into consideration, Mr. Munawar Khan had not been able to establish that he had made reasonable inquiries about the title of the alienors. Mst. Sardara was murdered and some of the reversioners were charged. Mir Pio (plaintiff No. 1) had murdered one of the murderers of Mst. Sardara. It is also not proved that in such circumstances the plaintiffs generally, and Ghazimar Jan (plaintiff No. 2) especially, by necessary implication, created an impression in the mind of Mr. Munawar Khan that his alienors had a valid title. The ingredients of section 41 were not proved in this case, and the learned District Judge was perfectly right in finding issue No. 11 against him.

33. If the argument of Mr. Abdul Latif Khan about the estate of Mir Taj Ali having been acquired by Mst. Sardara as an accretion to the property of her husband is accepted, even then Ghazimar Jan plaintiff would be entitled to 1/4th share in that property as well, because the property of Mir Taj Ali having been in addition to the property of Abdul Khaliq, here widow would be entitled to inherit 1/4th of the property of both the deceased persons as a widow of Abdul Khaliq. There is no dispute on this point that according to the latest local amendments, in the case of a widow in possession of the property of her husband as a limited owner, her 1/4th share in the property under shariat, would be inherited by her shari heirs.

34. Before we part with these appeals, it appears to us to be very necessary to deal with the conduct of Mr. Munawar Khan; and his counsel, Mr. Rehmdil Khan, Advocate.

35. After the close of the evidence of the plaintiffs in the trial Court, on the 14th of September 1954, the defendants notified to the Court that they would not produce any evidence except the production of certified copies of the mutations. Mr. Rehmdil Khan produced the certified copies of mutations Nos. 469, 5249 and 275, along with the certified copies of certain judgments of appeal of the Revenue Courts on the 6th of November 1954, and the case was fixed for arguments on the 4th of December 1954. On this date, counsel for the plaintiffs argued the case, but the case was adjourned for the 17th of January 1955, for the remaining arguments of the counsel for the parties. The case was then adjourned to the 5th of February 1955, on account of the indisposition of Mr. Rehmdil Khan, counsel for the defendants. On the 5th of February 1955, counsel for the plaintiffs applied that in the certified copy of mutation No. 5249 (Exh. D. Y./2), the words "ta ain hayat" were added in the order of the revenue officer by counsel for the defendants, and therefore, it was prayed that the original mutations should be sent for along with the Naib‑Sadar Kanungo, Bannu, and examined in Court to find out what was the true order of the revenue officer existing on the mutation. In support of this application, counsel for the plaintiffs filed a certified copy of the same mutation, wherein the words "ta ain hayat" in the order of the revenue officer did not exist. The original mutation was examined by the Presiding Officer and the Naib‑Sadar Kanungo was also examined by the Court on this point. The words "ta ain hayat" in the order of the revenue officer, dated the 10th of May 1931, did not exist thereon. The same was verified by the Naib Sadar Kanungo in his statement recorded in the Court.

36. The plaintiffs applied in the Court for filing a complaint against Mr. Mehrdil Khan, Advocate and Mr. Munawar Khan (defendant No. 7) for producing a forged copy of mutation No. 5249. This application was rejected. A fresh application in the Court of the District Judge also failed, and an appeal against the order of rejection was also dismissed by the High Court. The fact, however, remains that the words "ta ain hayat" in the order of the mutation officer, dated the 10th of May 1931, were added by interpolation by defendant No. 7, or his counsel, or by some one within their knowledge and at their instance. The reason for this interpolation, perhaps was that the legal position was not correctly appreciated by counsel for the defendants, and defendant No. 7 himself, that even if Mst. Sardara inherited the limited estate of Mir Taj Ali, her adverse possession would start with respect to that estate from the date she entered into that. property, because under the custom she was not at all entitled to inherit the estate of the nephew of her predeceased husband, even as a limited owner.

37. For the above reasons, we had dismissed the appeal (No. 179 of 1957) of defendant No. 7 with costs, and had, accepted the appeal of Ghazimar Jan plaintiff (Appeal No. 173 of 1957), and granted Ghazimar Jan plaintiff a decree for possession of the entire suit property against the defendants with costs throughout, by our short order, dated the 22nd of December 1964. K. B. A. Appeal accepted.