1996 PLP R1881 (SCMR)

ABDUL, SHAKURUL SALAM, J.

This appeal, by leave of the Court, arises in the following circumstances: One Umar Din son of Ghulam Muhammad died sometime in the year 1951-52. Mutation of his inheritance No.2651 was sanctioned on 8-9-1953 allocating half share to the appellant, daughter of the deceased's sister, and the remaining half to Muhammad Hussain, Ahmad Din, Muhammad Khan and Rehmat Khan as residuaries. On 23-7-1966, the latter two namely Muhammad Khan respondent No.1 and Rehmat Khan respondent No.2 filed a suit for joint possession of 1/2 share on the ground that the appellant was not entitled to inherit any share in the estate of the deceased. The suit was contested by the appellant. The following two relevant issues were framed: "(1) Whether the suit is within time? OPP (2) Whether the defendant No.1 (Sardar Bibi) has become owner of the suit land by virtue of adverse possession for a period of more than 12 years? OPD" The learned Civil Judge, Wazirabad, held that the appellant being a daughter of the predeceased sister of Umar Din was not entitled to any share in the estate of the deceased Umar Din. Further, the land in the suit was part of joint Khata in possession of all the co-owners, therefore, the suit was within limitation. Nor could there be any adverse possession; nor any evidence in this behalf was led by the defendant-appellant. The suit of the respondents Nos.1 and was, therefore, decreed vide judgment and decree dated 28-6-1967. The appellant filed an appeal before the District Judge, Gujranwala. It was taken up by the learned Additional District Judge, who accepted it vide judgment and decree dated 21-1-1970. Plaintiff-respondents filed a second appeal in the Lahore High Court (RSA No.342/70) which has been accepted on the findings that it was not disputed that the appellant was not entitled to inherit; and that it was not proved that she was in adverse possession of the suit land. The suit was found within limitation. This is vide judgment and decree dated 19-1.1-1975. Hence this appeal.

2. Learned counsel for the appellant has contended that it was admitted by the plaintiff-respondents in the plaint vide paragraph 8 that the cause of action arose to them on 8-9-1953 (the date of sanction of mutation) and the suit filed on 20-7-1966 was clearly barred by time. He next submitted that the appellant not being an heir was not a co-owner in the land in dispute. Her possession would be that of a tresspasser. Time would start running from the date of death of Umar Din i.e. 1951-52 or 8-9-1953, the date of attestation of mutation. The suit was filed on 20-7-1966. Therefore, her adverse possession being more than 12 years, the suit was barred by time.

3. It is not disputed that the deceased Umar Din held land in joint Khata alongwith plaintiff-respondents. After his demise or attestation of mutation, possession still remained with all the co-owners. The appellant produced no evidence whatsoever that she entered into possession openly in hostile manner and continuously remained in adverse possession to the real owners. The judgment of the learned High Court is well reasoned and nothing has been pointed out to call for any interference. The appeal is, therefore, dismissed but in the circumstances the parties are left to bear their own costs. A.A./S-989/5 Appeal dismissed.