P L D 1984 Peshawar 134 (PLP)

Mst. Faroshai and her two daughters sued Mst. Zarina and others for a declaration that they were owners of 79 Kanals 10 Marlas of land but their share in the revenue record had been wrongly recorded and inheritance Mutation No. 1842 was inoperative as against their rights. They sought possession of the aforesaid land. The suit was contested by the opposite party and was dismissed by the learned lower Court. The appeal of the plaintiffs failed and they have now come on revision to this Court.

2. The gravamen of the petitioners' claim was that their predecessor Qadir Khan had died before 1935 when custom governed succession and his inheritance mutation was attested in favour of his sons Asar Khan and Sawar Khan with 1/2 share and the remaining 1/2 in favour of his widow Mst. Fatima as a limited owner. Sawar Khan died issueless and Asar Khan succeeded him. Mat. Fatima died 5‑6 years back and her inheritance Mutation No. 1842 was wiongly attested in favour of her daughter Mst. Zarina, respondent No.

1. Their claim was resisted by the latter on various grounds and she had inter alia averred that Mat. Fatima had been in adverse possession for more than 12 years. Her 'plea reflected in additional issue No. 2 prevalied and it non‑suited the petitioners who could not succeed in assailing the said finding in appeal. The solitary question to be determined presently is whether Mst. Fatima had prescribed title to the suit land by adverse possession for 12 years.

3. The following pedigree table would illustrate the relations of the parties Inter se and with Qadir Khan :‑‑ Nazif Khan Sardar Mst. Fatima=Qadir Khan=Mst. Quresba (issueless) I Mst. Zarina (Defdt. 1) Mst. Zulfara Sawar Khan Mst. Faroshai = Asar Khan (issueless) (issueless) (Pltff.l) Mst. Lal Pari Mst. Taj Mina (Plt~f. 3) , (Pltf. 2) A look at the Jamabandi 1908‑09 shows that Nazif was succeeded by his sons Sardar and Qadir per Mutation No. 383 attested on 12‑5‑1908. Sardar died issueless and his inheritance Mutation No. 603 was attested on 6‑2‑1911 in favour of his widow d1st. Fatima. This Mutation was incorporated in the Jamabandi 1912‑13 wherein Mst. Fatima and Qadir were recorded as owners in equal share. The same entries appeared in the Jamabandis 1916:17 and 1920‑

21. Mst. Fatima remarried and her inheritance Mutation No. 1004 was attested in favour of Mst. Mirzadgai and Mst. Faqira who were daughters of Sardar with half share and the other half was inherited by Qadir. Mat. Mirzadgai and Mst. Faqira married and their inheritance Mutations No. 1317 and 1445, respectively, were attested in favour of Qadir. In the 'Misle Haqiat' 1925‑26 Qadir Khan was recorded as sole owner of the entire land and the same entry appeared in the Jamabandi 1930‑

31. His inheritance Mutation No. 149 was attested on 19‑6‑1932 in favour of his sons Asar Khan and Sawar Khan with 1/2 share and the remaining share devolved on his widow Mst. Fatima and daughter Mst. Zarina. The mutation was given effect to in the following Jamabandi 1934 35 but an error crept in inasmuch as Mst. Zarina did not find a place in the Jamabandi and the entire half of the land was recorded in the ownership of Mst. Fatima. On the death of Sawar Khan his inheritance Mutation No. 715 was attested on 8‑12‑1941 in favour of his brother Asar Khan and in the Jamabandi 1942‑43 Asar Khan and Asst. Fatima were recorded as owners with equal share. Asar Khan died and his inheritance Mutation No. 1064 was attested on 15‑2‑1947 in favour of his widow Mst. Faroshai (plaintiff 1) daughters Mst. Taj Mina and Mst. Lal Pari (plaintiffs 2 and 3), mother Mst. Quresha and sister Mst. Zulfara. The mutation was given effect to in the next Jamabandi 1949‑50 wherein Mst. Fatima was recorded as an owner of half the land and this entry continued unchanged up to the Jama bandi 1965‑

66. It is her inheritance Mutation No. 1842 which is the subject matter of the present snit,

4. One fact which prominently emerges is that Qadir Khan who had become the sole owner of the entire land died when custom governed succession and half of his estate was mutated in favour of his sons Asar Khan and Sawar Khan and the other half in favour of Mst. Fatima and Mst. Zarina per Mutation No. 149 attested on 19‑6‑1932. This mutation was embodied in the following Jamabandi wherein Mst. Fatima was recorded as an owner of half the land and she continued to be so recorded in the revenue record till the Jamabandi 1965‑66 whan on her death Mutation No. 1842 was attested on 18‑11‑1969. She continued in possession without interruption during the period intervening between the inheritance Mutation of Qadir Khan and her own and this period extended to more than 37 years. The learned counsel for the petitioners strenuously contended that she had entered upon the property as limited owner because custom was in vogue then and not as full owner and that her adverse possession would be as a limited owner. He for this view of the matter placed reliance on Mst. Hussainzadgai and 2 others v. Mst. Bibi Rohana and 3 others (P L D 1974 Pesh. 7), wherein it is observed that when property is wrongly mutated in the name of a female as limited owner and such female remained in possession for more than 12 years she would perfect her title to property as limited owner. The learned counsel for the respondents, on the other hand, referred to Mir Pio and another v. Mir Nawaz and others (P L D 1965 Pesh. 173), wherein it was held that whets the paternal aunt who was not entitled under custom to inherit in any capacity entered into possession of the estate of his nephew, mutations were attested in her favour due to erroneous view regarding custom and she remained in possession for more than 12 years continuously her possession of the estate was no better than that of a trespasser ab initio and she had become full owner after the lapse of 12 years of her entry into the property. The former authority is of a learned Single Judge and the latter of a Division Bench of this Court.

5. The facts of the first authority briefly are that Abdul Qadeer died in 1920 and his half share of the property was mutated is the names of his widow Mst. Muntaba as a limited owner. She married Abdul Karim and the property of Abdul Qadeer in her name was mutated in favour of the daughters of Abdul Qadeer under custom as limited owners. Abdul Karim died in 1932 and his estate devolved on his widows Mist. Firdaus Jana and Mst. Muntaha and daughter Mst. Bibi Rohana. On the remarriage of Mst. Firdaus Jana and marriage of Mst. Bibi Rohana their limited interest in the property of Abdul Karim was mutated in favour of Mst. Muntaha who died in 1959. It was observed that the property of Abdul Qadeer did not go to Abdul Karim and it could not, therefore, be inherited by Mst. Muntaha as a limited owner even of Abdul Karim and that the property mutated in the name of Mst. Muntaba as a limited owner was by a mistake. It is remarked in para. 21 of the judgment that :- There is no doubt that the property was wrongly mutated in the name of Mst. Muntaha as a limited owner as mentioned above, but since she had remained in possession as a limited owner for more than 12 years, she, therefore, perfected her title to the property as a limited owner by prescription in view of the authorities reported in Abdul Aziz and another v. Muhammad Khan and others P L D 1960 Lah. 427 and Vishavanath Haibatrao Deshpandr v. Ranganath Dhondo Deshpande and others A I R 1942 Bom. 268 and was to be treated as a limited owner." It is pertinent to note that A I R 1942 Bom. 268 has not dealt with the question of the nature of possession for more than 12 years of a limited owner but it pertains to the relationship of landlord and tenant between the parties. So far as P L D 1960 Lah. 427 is concerned its facts are to some extent distinguishable. The death of Hayat Muhammad an occupancy tenant took place some time before 1912 and his share devolved on his mother Mst. Hussain Bibi. The question of the nature of her possession was involved. It is in para. 5 of the judgment that a number of authorities were produced in support of the proposition that the mother when she inherits under custom succeeds as a window and she takes only a life estate. Abundant authority could be cited in favour of the proposition that in a case where the parties were generally governed by custom, a widow who succeeds without right prescribes only for a life estate. The revenue record showed that Mst. Hussain Bibi was in possession as the mother of the last male owner and that whenever in the revenue records a woman is shown as the mother of a particular person the inference is that she h61ds in her capacity as the mother of that person. It was, therefore, presumed that Hussain Bibi was claiming the same estate as she would have bad if she had, in fact, the right to succeed under custom. The learned counsel, conceded that she had acquired only a life estate whereupon it tuna observed that "our finding apart froth the concession too is that Mst. Hussain Bibi had acquired only a life estate under custom".

6. In the instant case Mst. Fatima and her daughter Mst. 2arina had inherited half of the estate of Qadir Khan whereas the other half devolved on his sons Asar Khan and Sawar Khan. Both the ladies were not under custom entitled to a share in the estate of Qadir Khan and were to be excluded from inheriting him altogether in view of answer to question 41 of the Customary Law of the Peshawar District by J. G. Lorimer. It is to be noted that in the revenue record she was not mentioned as a limited owner nor a copy of inheritance mutation of Qadir Khan was placed our the record by the petitioners to indicate the nature of transfer in her favour. It can, therefore, be presumed in the light of the entries made in the Jamabandis' that she had become a full owner of the land and this presumption stand uncoutroverted. Neither the petitioners nor their predecessors Asar Kha and Sarwar Khan had challenged Mutation No. 149 during the life time of Mst. Fatima. A suit was brought by the petitioners and others against) Mst. Fatima in the Court of Civil Judge, Mardan claiming that Mst. Fatima was entitled to maintenance only and had relinquished her rights was limited owner in favour of their predecessor Asar Khan. Their suit was dismissed and the appeal failed on 17‑10‑1950. A copy of the appellate judgment has been placed on the record wherein it is observed that the allegation of relinquishment had not been proved and that "on the contrary it tends to confirm the view that the defendant has been exercising her proprietor. rights on the suit land as owner and that she had been enjoying the income and the‑produce of the suit land to the exclusion of the appellants." The appellate judgment was not questioned by the petitioners and it held the field. Moreover, Mst. Fatima had sold some land to her daughter Mst: Zarin & respondent No. 1, per registered deed dated 1‑8‑1956. The mutation entered on the foot of this deed was, however, rejected. Notwithstanding the rejection of the mutation, the transfer was not challenged by the petitioners at all. It can, therefore, be said that Mst. Fatima had entered upon the land without any right and since she remained in possession without objection by the petitioners or their predecessors her possession. Would be deemed as adverse in Character. Reliance for this view of the matter can safely he placed on the Division Bench judgment of this Court reported as Mir Pio and another v. Mir Nawaz and others.

7. The aforesaid authority has dealt with the question of the nature of ,possession of a widow paternal‑aunt who had entered into possession without any legal right during custom. Mina Taj Ali died in 1932 and his lands situate in Ketka Naqashband were mutated in favour of Mst. Sardara, his paternal‑aunt (chachi). She was not entitled to inherit the estate of Mina Taj Ali under the general, custom in any capacity, namely, the limited ownership or complete ownership or due to maintenance. Their Lordships reviewed a number of authorities cited at the Bar and came to the conclusion that "Mss. Sardara bad 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." I am inclined to agree with dictum laid down by the Division Bench of this authority and, with respect, cannot subscribe to the view of the Single Bench authority reported in P L D 1974 Pesh. 7.

8. There is another aspect of the matter which may be spotlighted. The inheritance mutation of Qadir Khan was attested in favour of Kist. Fatima in 1932 and thereunder she entered upon the property. This mutation was tantamount to an overt act on her part. A somewhat similar question had come up for consideration in an unreported judgment dated 22‑11‑1969 of the Supreme Court in C. P. S. L. A. No. 37‑P of Mst. Maqbool Jan alias Mst. Manzara v. Faqir Muhammad and 22 others. Mst. Maqbool Jan bad brought a suit in April, 1955 claiming 1/3rd share in the property left by her father Rahim Gul who had died in February, 1932 when customary law was applicable and his inheritance mutation was attested in favour of his son Faqir Muhammad though he was survived by a widow, three daughters and a. son. Her suit was dismissed on two grounds, namely, it was barred by time and that Faqir Muhammad had in any event acquired title to the property by adverse possession. On appeal the decision of the trial Court was reversed, the suit was held to be within time and Faqir Muhammad not to have acquired title by adverse possession. In second appeal the judgment of the first appellate Court was set aside and that of the trial Court restored. It was observed by the Supreme Court as under .‑ It is now well‑settled that adverse possession can be claimed even against a co‑sharer. Some overt act is necessary to make the title of another co‑sharer hostile. In the present case this overt act was furnished by the mutation entry in the name of Faqir Muhammad. This was attested before the village and, therefore, was in the knowledge of the plaintiff. If in spite of that she did not object or take any steps to have the mutation corrected until 1955, she cannot now complain if her brother claims the property by adverse possession. If indeed she was a co‑sharer under the Shariat Law even before the coming into force of the Act 1935 her case stands on a worse footing, for, then the right accrued to her immediately on her father's death and the adverse title was clearly asserted by Faqir Muhammad by getting the mutation in his name alone. Their Lorships approved of the dictum laid down in Mst. Amir Jan and another v. Aziz Muhammad Khan and others (A I R 1944 Pesh. 45), wherein it is observed the where a person succeeds as a co‑heir, Article 144 applies if he claims adverse possession. But if the person takes the property as a customary heir according to the law then in force and not as a mere co‑heir, his possession, is adverse from the very beginning. Mst. Fatima had not shared the estate of Qadir Khan under Muslim Law as a co‑heir but a part of the estate had devolved on her without any entitlement thereto and the very inception of her posses sion was adverse in character. It follows that the finding of both the learned Courts below on additional Issue No. 2 is well‑founded and merits no interference. In the result, the revision fails and is dismissed with costs. M. Y. H. Petition dismissed.