P L D 1989 Lahore 372 (PLP)

C . M . Latif Rawn for Petitioners. ORDER . Respondent, a sister of the petitioners, brought a declaratory suit against them to claim her share of inheritance in the property left by their father. They contested the suit without specifically admitting or denying her relationship but urged that the inheritance mutation No.1231 was sanctioned in their favour on 20‑7‑1963 with the consent of the plaintiff who has neither herself been in possession of the land nor has she been given any share of the produce and muchless has she objected either to their possession of it or the transfers made by them. A number of technical objections were also raised in opposition of the suit which were consequently set down to be tried on a total of 11 issues, inclusive of that of relief. The principal objections covered therein were with regard to limitation estoppel, waiver and adverse possession. The objection with regard to non‑joinder of parties on account of transfers made by the defendants paled into insignificance on account of willingness expressed by the plaintiff to have her share adjusted in the unalienated part of land which may, on that account, be considered to have been left as the only subject‑matter of the present litigation.

2. Parties led their evidence in the course whereof the defendants clearly admitted the plaintiff to be their real sister but tried to prove relinquishment by her of her share of inheritance. Learned trial Judge accepted the assertion of the defendants that the plaintiff had relinquished her share of the inheritance and also held her to be aware from the very beginning of the sanction of mutation to her exclusion and held her suit to be barred by time as also on account of waiver and estoppel. Although the issue relating to adverse possession was decided against the defendants, yet, the plaintiff was refused to be extended the benefit about the possession of a co‑sharer and holding her to have been excluded from the produce of the land on account of alleged relinquishment of her share, it was concluded that she is not entitled to claim her share. In consequence, plaintiff's suit was dismissed by the trial Court by its judgment dated 31‑1‑1988.

3. On appeal, the matter was reconsidered by an Additional District Judge who disbelieved the unpleaded case of the defendants with regard to the plaintiff's relinquishment of the share of inheritance, being urged by the defendants and in that behalf referred to the evidence of Ghulam Abbas (D.W.1) who is a paternal‑uncle of the parties and had actually deposed to the plaintiff foregoing her share of inheritance in all three villages wherein her father had left land but conceded that still, mutations in the other villages stand sanctioned in the names of both the parties. He also admitted during the cross examination that there was no statement on the point made by the plaintiff before the Tehsildar and neither did she execute any deed of relinquishment nor made a gift of her share in favour of the defendants. In this situation, learned appellate Judge accepted her to‑ still be the co‑sharer of the land in suit and upon that view of the matter decided the questions of limitation and adverse possession against the defendants on the principle that the possession of one co‑sharer enures for the benefit also of the other co‑sharers. In consequence, learned Additional District Judge accepted the appeal to set aside the trial Court's decree into passing the decree prayed for by the plaintiff through his judgment dated 8‑2‑1989.

4. The defendant‑brothers have now come up to this Court on revision and in its support learned counsel has raised the following contentions:‑ (a) that the judgment of reversal passed in the appeal below does not proceed upon consideration of all the evidence existing on the record and is, hence, not sustainable in law; (b) that the plaintiff‑respondent has been wrongly assumed to be a co‑sharer in the suit land despite her relinquishment of the share of inheritance and this error has resulted from a grievous misreading of the evidence of Ghulam Abbas D.W.1 who has actually deposed to just the contrary; (c) it is urged, by way of adjunct to the foregoing, that the suit brought by her after about two decades of the sanctioning of mutation on the basis of her relinquishment of share of inheritance; is hopelessly barred by time and has also led to the title of the defendants being matured on account of adverse possession due to her ouster inasmuch as the defendants have not given to her any share of the produce after her relinquishment in their favour; and, (d) on the very same premises, pleas of estoppel and waiver are also pressed against the plaintiff.

5. Learned counsel has taken me through the evidence led by the parties and, after giving anxious consideration the above‑noted contentions, I do not find merit in either of them. Actually, the whole superstructure of the contentions raised for the defendants is built on the assumption that the plaintiff had relinquished her share of inheritance in favour of her defendant‑brothers. Not only that such is not the case set up by them in the written‑statement but also they have not been able to satisfactorily prove such a relinquishment. The deceased father of the parties owned agricultural lands in several villages and it is established on the basis of documentary evidence that in the villages other than this one (Suniarian) her share of inheritance has been duly mutated in her name but in the relevant mutation No.1231 of village Suniarian her name was somehow omitted to be mentioned and this omission of name from the genealogical table of the deceased had led to the mutation being sanctioned in the names of the stated heirs, three sons and a widow. This mutation was not sanctioned in this manner on account of any relinquishment and it clearly belies the evidence on the point given by Ghulam Abbas (D.W.1) whose statement has, no doubt, been misread by the appellate Judge but, in the circumstances, it does not constitute any material misreading.

6. Even this is correct that the appellate Judge has not specifically attended to the other evidence existing on the record which has not even been mentioned by him. However, the conclusion reached by him in favour of the plaintiff being a co‑sharer, who had not relinquished her share of the inheritance at any stage. is undoubtably correct. This conclusion reached in the appeal below relates to questions of pure fact which lie within the exclusive jurisdiction of the Court of first appeal to be decided. Its findings thereabout, even if they may be at variance with those of the trial Court, are normally accepted as final and so long as they are based on the record they do not fall to be reconsidered at subsequent stages except when they have either been affected by some illegality, like violation of the rules relating to appreciation of evidence, committed by the appellate Court or may otherwise have emanated from some material irregularity in the exercise of appellate jurisdiction. Finding with regard to a question of fact reached in first appeal on the basis of record is not open to be reversed for the reason that a conclusion to the contrary may also be possible to be reached on the basis of the A same evidence or on the ground even that if the superior Court may itself have sat to decide the same question, either as a ‑trial Court or in first appeal, it would have come to the other conclusion. Ordinarily, the findings on questions of fact reached by a Court o first appeal on the basis of record are treated as sacrosanct and interference therewith may be made not on account merely of disregard by it of some or any evidence existing on the record but on account of disregard only of some material evidence existing on the record which, if it had not escaped from notice of the appellate Court, may have possibly led it to a different conclusion being reached. In this case, there is no disregard of any material evidence existing on the record pointed out by the learned counsel to have been made by they appellate Court below. After going through the entire evidence existing on the record, B I am satisfied that the plaintiff has not been proved to have at any stage relinquished her share of the inheritance and the omission of her name from the pedigree‑table entered in Mutation No.1231 (Exh.P.2), either designedly or only accidentally has led to her non‑inclusion in the distribution of the estate and this omission has been tried to be twisted by the defendants into urging a case of relinquishment by her of the share of inheritance which has, however, neither been pleaded specifically nor proved satisfactorily. Plaintiff is an admitted sister of the defendants and is their co‑sharer from the very moment of the death of their father and, in this view of/ the matter, possession of the defendants cannot constitute any act of hostility against the plaintiff and muchless may her not having been paid any share of the produce of the land have the effect of her ouster because a learned Division Bench of the High Court has held in Saadullah Khan and 6 others v. Mir Piayo Khan and 14 others (PLD 1970 Pesh. 150) that possession of one co‑sharer enures to the benefit also of the others. The foregoing suffices for repelling the contentions of the learned counsel. It may, however, be added also that a mutation is not a document of title standing in need of having) to be got set aside in a declaratory suit to be governed by the provisions made in the residuary Article 120 of the Limitation Act whereunder the prescribed period of six years' limitation starts from the point of time that a right to sue may accrue and this, again, is for a plaintiff to decide as to when may the claimed rights be sued out. It is well established that a plaintiff is not obliged to rush to the Court on the first or even a subsequently repeated denial of his right and title so that he can even ignore such denials when the possession is held by him and it is uncontrovertable that in the present case the plaintiff is entitled to have herself treated to be in possession of the land (as a co‑sharer) through the defendants. Upon this view, the defendants' objections with regard to the limitation, and the form of the suit also fail.

7. Result of the foregoing is that there is not found to exist any) case for exercise of revisional jurisdiction and this revision petition is accordingly dismissed in limine. A . A . /G‑224/L Revision dismissed.