2007 PLP 2779 (YLR)

MAULVI ANWARUL HAQ, J.

On 31-7-1980 the petitioners filed a suit against the respondents. In the plaint, it was stated that Shahabal son of Langrana was the last male owner of suit-land located in the revenue estates of Kalari, Kull and Doratta Sangranwan in Tehsil Chiniot. He died before the independence of the country and the land was mutated in favour of his widow Mst. Bhandi daughter of Ghara as a limited owner. She died in April 1950. Mutations of inheritance were entered and attested in all the three revenue estates and -the petitioners stood excluded. I may note here that the petitioners are the L.Rs. of Amir and Bahadar sons of Ghara i.e. brothers of the said widow and they claimed her widow's share of 1/4th in the estates of the said last male owner. Some further alienations were made by the respondents as detailed in para. 3, of the plaint. A declaration was accordingly sought that the said inheritance mutations excluding the petitioners and the said further alienations are void and ineffective upon their rights. Written statements were filed by the different sets of defendants. The common plea taken was that the said Amir and Bahadar were not the brothers of Mst. Bhandi. Following issues were framed by the learned trial Court:-- (1)? Whether the suit is time barred? (2)? Whether, the plaintiffs are estopped? (3)? Whether the suit is not maintainable in the present form? (4)? Whether the description of the suit-land is incorrect? (5)? Whether the suit has not been valued properly for he purposes of court-fee and jurisdiction? (6)? Whether the suit is bad for non-joinder and mis-joinder of the parties and causes of action? (7)? Whether the civil Court has no jurisdiction? (8)? Whether the pedigree table given in the plaint is incorrect? (9)? Whether the plaintiffs are owners in possession of 1/4 share of the property left by Shahabal deceased and Mutation No. 238, dated 21-5-1977, Mutation' No.126, dated 15-6-1963 and Mutation No.164, dated 18-10-1961 are against the facts and law?

10. Relief. Evidence of the parties was recorded. The suit was decreed on 15-12-1987. A first appeal filed by the respondents Nos. 1 to 3 has been partly allowed by a learned ADJ, Chiniot, on 28-6-1989. He upheld the judgment of the learned trial Court qua the land located in village Doratta Sangranwan but dismissed their suit in respect of the lands located in villages Kalari and Kull.

2. Learned counsel for the petitioners contends that the impugned judgment is a contradiction in terms inasmuch as the relief has been denied to the petitioners in respect of the said two revenue estates by holding the suit to be time barred qua the same. According to the learned counsel, the learned ADJ has stated correct reasons for holding the suit to be within time qua one of the revenue estate but has taken a 360 degree turn in the matter of other two estates. Learned counsel for the contesting respondents supports the impugned judgment and decree of the learned ADJ.

3. I have gone through the copies of the records: The pleadings of the parties have already been reproduced above. The suit was contested with the plea that Amir and Bahadar are not the brothers of Mst. Bhandi widow in whose favour the land of Shahabal was mutated as a limited owner. With reference to evidence on record, both the Courts have found that Amir and Bahadar were the brothers of the said widow of the last male owner. It appears that during the course of evidence a controversy was raised that widow died before the enforcement of the Shariat Application Act, 1948. This .question has also been answered by the both the learned Courts below in favour of .the petitioners inasmuch as it has been found as a fact that the widow had died after the enforcement of the Shariat Application Act of 1948.1

4. This being so, she was entitled to retain her widow's share and this share had to go to her brothers and consequently to the petitioners. The learned ADJ after recording the said findings has proceeded to dismiss the suit qua the villages Kalari and Kull on the ground that the suit has become barred by time. The learned ADJ has indeed devised a novel procedure for recording the said finding as would be evident from para.10 onwards of his impugned judgment. He states that he has put Court questions to the parties present in Court. He has particularly mentioned that Ghulam Ahmad son of Amir (reference is to petitioner No.8), who replied that "in Kalari and Kull the respondents had been in possession of entire land including the shares of the petitioners right from the independence of the country and that they are not in possession." On the basis of the said answer given by the said petitioner he has proceeded to hold that the respondents have perfected their title by prescription through adverse possession. Needless to state that the said observations are in direct contravention of the consistent view held by the apex Court of the country that every co-sharer or co-heir shall be deemed to be in possession of the joint estate or land and simply because any of the co-sharers is not in an actual possession, the possession of the other co-sharer who is in possession I would not become adverse unless a plea of ouster is taken and proved. No such plea is there on record. On the other hand, according to law the possession of those co-sharers who were in possession was enure for the benefit of the co-sharers who are not so in possession. Reference be made to the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1).

5. Before parting with this judgment, I may note here that there is C.M. No.2-C/06 on record for permission to lead additional evidence. Although it has not been pressed, by the learned counsel for the respondents yet I have examined the same. Permission is being sought to produce an order dated 30-12-1952 of the Collector, proceedings of enquiry, and order dated 21-8-1957 and an order of Consolidation Officer, dated 7-8-1980. There is no explanation as to why these documents were not produced in the course of trial. I am, therefore, not inclined to allow the same particularly when the findings on the material questions have now been recorded in the present civil suit after recording evidence of the parties. Any observation by the Revenue Officers during the course of mutations proceedings would not be relevant. The application is accordingly dismissed.

6. For the reasons noted above, the civil revision is allowed. Judgment and decree, dated 28-6-1989 of learned ADJ, Chiniot, is set aside while the one passed by learned trial Court on 15-12-1987 is restored. No orders as to costs. S.A.K./M-379/L????????????????????????????????????????????????????????????????????????????????? Revision accepted.