1980 PLP 873 (SCMR)

KARAM ELAHEE CHAUHAN, 3‑Mst. Nawab Bibi (plaintiff) filed a suit for joint possession of the agricultural land and a house described in detail in the plaint on the ground that she was the daughter of Ilam Din (the propositus) and as such was eligible to the aforesaid property to the extent of 1/3rd share. The suit was decreed by the learned Civil. Judge on 25w2‑1971. The defendants/petitioners filed an appeal but without any success as the same was dismissed by learned District Judge on 8‑3‑1972.

3. The defendants/petitioners then filed a revision in the High Court, which was dismissed on 17‑11‑1979, qua the agricultural land but the case was remanded qua the house for its fresh disposal in accordance with and in the light of the observation made by the High Court in that respect.

4. The defendants/petitioner's leave come up in a petition for special leave to appeal challenging the judgment and order of the High Court qua the agricultural land,

5. The first point argued by the learned counsel for the defendants/ petitioners was that originally Allah Rakha was the main defendant who died during the pendency of the suit. The plaintiff filed an application to bring his legal representatives on record including Mst. Noor Begum who at that time was a minor and was impleaded through her real mother Mst. Rasul Bibi who also was impleaded as a defendant in her own name. This application was allowed by the learned civil Judge. Learned counsel submitted that the grant of the aforesaid application did not mean that minor defendant Mst. Noor Begum was being represented (or that the Court had allowed her to be represented) by a guardian authorised by the Court to do so. The contention has no merit. The grant of the application can be read as allowing the minor to be sued through her mother. The High Court was right in not attaching any importance to this technical plea and we find no mistake in its order on the subject.

6. Another matter to be noticed is that it is a common ground that Ilam Din is no longer in the land of living and is dead. The case of the defendants/petitioners was that he died in year 1947 (before the promulgation of West Punjab Muslim Personal. Law (Shariat) Application Act IX of 1948, (hereinafter called the Act) with the result that his succession was to be governed under agricultural custom, which according to them did not allow a married daughter to succeed to the type of land involved in this case (though it was no where pleaded that the land was an ancestral land). However, the case of the plaintiff/respondent was that her father Ilam Din died after the promulgation of the aforesaid Act where under a daughter could also inherit agricultural land. The Courts below in this respect referred to an order of a criminal Court Exh. P/1 dated 2‑7‑1951 which shows that a case against Ilam Din was lodged under section 406, P. P. C. on 3‑4‑1951 in which he was declared as absconder under section 87/88, Cr. P. C. and the case for that reason was ultimately filed. The Courts below held that order showed that at least in year 1950, Ilam Din was alive. Learned counsel argued that the aforesaid order of the criminal Court was neither relevant nor admissible in evidence. It may be mentioned that no such objection was raised before the trial Court when this document was exhibited and in these circumstance it is too late to raise this plea before us. Even otherwise this document was clearly relevant inasmuch as it provided a very relevant fact, which was helpful in determining the fact in issue in this case. The plea raised therefore is hereby repelled.

7. The last point argued was that the suit of the plaintiff/respondent was time barred in the sense that the exact date of death of Ilam Din not `''having been fixed, the institution of suit on 16‑4‑1966 was clearly beyond limitation. The plea has no merit. The plaintiff being a co‑sharer (as property under Muhammadan Law devolves on all the heirs as tenants in common), therefore the defendants/petitioners have not been able to prove any adverse possession against her as such and moreover the cause of action having arisen from the order of the mutation dated 15‑31964, the suit was from the point of view also quite within time. 8 No other point was argued before us.

9. The result is that this petition has no merit and is dismissed. Petition dismissed.