1994 PLP 822 (MLD)

This second appeal by the successors-in-interest of the original plaintiff Mst. Raisham Bibi, since deceased, was from the judgment and decree of the lower Appellate Court, dated 14-2-1985, by which it maintained the decree of the trial Court dismissing the plaintiff's suit for her share in the patrimony of her father, on account of bar of limitation, and acquisition of prescriptive title to the land in suit. Facts were fairly simple and the points of law involved for decision were also not much intricate. Therefore, first a reference to facts of the case. Khuda Yar alias Khair Din was owner of 86 Kanals, 8 Marlas of land in Chak Safdar of Tehsil Narowal. He died before partition of the Sub- Continent of India. His date of death, however, was not available on record. He left no male issue. He was survived by a widow Mst. Sultan Bibi and a daughter Mst. Raisham Bibi. Khuda Yar was a Jat. In matters of succession to and alienation of his property, he was governed by customary law. Upon his demise, his land was mutated in favour of his surviving widow, namely, Mst. Sultan Bibi. She expired on 5-11-1948. A mutation of inheritance No.308 was entered for distribution of her estate. On 24-12-1952, Mst. Raisham Bibi was distributed a half share in the limited estate held by her mother Mst. Sultan Bibi. Others were adjusted in terms of their Sharai shares in the other half. On 11-5-1955, this mutation of inheritance was reviewed and Mst. Raisham Bibi was excluded from it on the ground that Mst. Sultan Bibi died prior to West Punjab Muslim Personal Law (Shariat) Application Act, 1948, enforced on 15-3-1948. On 20-1-1971, Mst. Raisham Bibi filed a suit for joint possession in respect of her 9/16th share in the estate of her father Khuda Yar and questioned the correctness of Mutation No. 308 sanctioned on 11-5-1955. Defendants contested the suit. It was submitted that since Mst. Sultan Bibi died before the enforcement of Punjab Act IX of 1948, inheritance to her estate was governed by customary law and, therefore, plaintiff was not entitled to a share in it. They also submitted that the suit was barred by limitation and they had acquired adverse title to the land in dispute.. On 16-02-1972, the trial Court settled appropriate issues for determination. Thereupon, It took - evidence from the parties and upon its review, dismissed the plaintiffs suit. It was held that Mst. Sultan Bibi died on 5-11-1948. Therefore, the mutation of inheritance could not be sanctioned under customary law. It was further held that as daughter of Khuda Yar and Mst. Sultan Bibi, Mst. Raisham Bibi was entitled to 9/16th share in the land left by her father. Under issue No.4, it was found that suit was barred by limitation and under issue No.6, it was held that the ownership rights vested in Mst. Raisham Bibi were shattered due to adverse possession of the defendants for more than 12 years. As noticed above, learned Additional District Judge merely dittoed the reasoning of the trial Court for affirming its conclusions. It may be observed that Mst. Raisham Bibi was dead meanwhile. Out of her successors, Muhammad Din had come up in appeal before learned District Judge, Sialkot. Other heirs of Mst. Raisham Bibi were impleaded as respondents in the appeal. Upon dismissal of the appeal, the dispute was agitated in second appeal before this Court by Muhammad Din appellant. only. Other successors of Mst. Raisham Bibi were respondents Nos.16 to 27 in the second appeal. Contesting defendants in the suit to whom the land was allotted in the inheritance mutation were respondents Nos.1 to

25. They were represented by Mr. Iftikhar Ali Sheikh, Advocate, who attended the hearing on their behalf. Muhammad Din appellant died on 25-12-1990. By a Miscellaneous Petition (C.M. No.2/C-93), .his legal representatives were substituted on record and Malik Amjad Pervaiz, Advocate gave his power of, attorney on their behalf. Service was, therefore, complete. Seen from the above, only two points arise for consideration. First, whether the suit for joint possession filed by Mst. Raisham Bibi was barred by limitation and, second, whether the contesting defendants had matured their title to the land in dispute on account of holding it adversely and in consequence the rights of Mst. Raisham Bibi were extinguished in it. In my opinion, both the events were not proved. Neither the suit was barred by limitation nor holding of land in adverse possession was established. There was no dispute that Mst. Sultan Bibi was limited owner of the estate held by her, on behalf of her late husband Khuda Yar. She had inherited it under custom. On 31-12-1962, by force of the Punjab Muslim Personal Law (Shariat) Application Act, 1962, her limited estate was terminated and succession to it was opened out for distribution in terms of section 5 of the above Act. Mst. Raisham Bibi was daughter of Khuda Yar and Mst. Sultan Bibi. Upon opening out of succession, she would get her half share in the estate. 1/8th of it shall devolve upon Mst. Sultan Bibi and the remainder shall be distributed among other heirs of Khuda Yar.. Mst. Sultan Bibi died on 20-1-1971. Out of her 1/8th share, Mst. Raisham Bibi shall get one half as her daughter. This was what she claimed from her 1/8th share. Therefore, in all, she was entitled to 9/16th share and both the Courts below were agreed on it. It was not disputed at the hearing of the appeal also. The question for consideration would be, whether her suit filed for joint possession on 20-1-1971, was barred by limitation. Upon devolution of half share on her, she became a co-owner with the contesting defendants. On death of her mother, her share was increased by 1/16th. Her status as co-sharer in the joint Khata did not undergo a change. There was evidence that she received her share of produce. Even otherwise, there was no firm evidence of her complete ouster from the joint land or denial of her title to it to her knowledge. It is well-settled that the possession of a co-sharer on a piece of joint land was held on behalf of all the co-owners. There was no material for in application of this rule to the facts of this case. Also, there was no evidence that the contesting defendants ever held the land adversely to the knowledge of the plaintiff. Mere non-participation in the management of the joint land or non-sharing of usufruct from it did not constitute holding of the land in adverse possession. There was a long line of decisions in support of this view. However, reference with advantage can be had to the cases of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Muhammad Qasim Khan and 6 others v. Mst. Mehbooba and 6 others 1991 SCMR 515; Ali Akbar and others v. Malook and others 1991 SCMR 829;. Allah Wasaya and 3 others v. Rahim Bakhsh and another 1991 SCMR 1369. Upon admitted and proved facts, the plaintiff shall be deemed to be in constructive possession of her share of land in dispute. In absence of her complete ouster and denial of title, the suit could not be held barred by limitation or plaintiffs rights extinguished by adverse possession claimed by the contesting defendants. Upon this view of the record and the law, I would not uphold the judgments of the lower Courts. Therefore, this appeal must succeed for allowing her share to the plaintiff in the land owned by her father and later held by her mother as limited owner. Her 9/16th share shall now devolve on her personal heirs. It may be observed at the end, that Mr. Iftikhar Ali Sheikh, Advocate, learned counsel for contesting respondents did not address arguments on merits of the appeal. He merely requested for marking his presence in it. . Having regard to the aforesaid, this appeal is allowed with costs, impugned judgments and decree of the lower Courts are set aside and the plaintiff's suit is decreed for joint possession in respect of her 9/16th share in the land in dispute. Records be returned. A.A./M-1377/L Appeal allowed.