P L D 1961 (W (PLP)

WAHIDUDDIN AHMED, J.‑--This is a first appeal against the Judgment of Mr. M. I. Kazi, the then District Judge, Jacobabad, in First Class Suit No. 26 of 1955 dated 18th February 1958, awarding a decree for partition to respondent No. 1 to the extent of two annas four pies share in the agricultural land left by one Muhammad Mukeem. In the year 1955 respondent Nur Jehan brought a suit for partition of agricultural land left by Muhammad Mukeem, her father, situated in Deh Mubarakpur in Taluka Thul, District Jacobabad, in the Court of First Class Sub‑Judge, Jacobabad. Muhammad Mukeem died somewhere in 1918 and was survived by two sons: deceased Pir Muhammad and deceased Ali Bux, and four daughters: Nur Jehan respondent No. 1, Gul Jehan, Sahib Jahan, and Lai Jehan, respondents 4 to 6, and a widow Sardar Khatun, respondent No.

7. After his death the agricultural land standing in his name in the Record of Rights of Deh Mubarakpur was mutated in the name of his two sons Pir Muhammad and Haji Ali Bux. On the 19th of June 1940 Pir Muhammad died and was survived by four sons namely, Nazir Ahmed, respondent No. 2, from one Mst. Shah Jehan, Maqbool Ahmed, respondent No. 3, from one Mst. Hazur Bano, and Hazur Ahmed and Mansur Ahmed, appellants Nos. 2 and 3, from Mst. Wazir Begum, appellant No. 1, two widows Mst. Shah Jehan Begum, respondent No. 8, and Ma. Wazir Begum, appellant No. 1 and mother Mst. Sardar Khatun, respondent No.

7. Haji Ali Bux also died in March 1947 issueless and left behind his four sisters viz. Nur Jehan, respondent No. 1, Sahib Jehan, respondent No. 5, Gul Jehan, respondent No. 4 and Lai Jehan Begum, respondent No. 6, and four nephews viz. Nazir Ahmed respondent No, 2, Maqbool Ahmed, respondent No. 3, Hazur Ahmed, appellant No. 2 and Manzoor Ahmed, appellant No. 3, and Sardar Khatun, respondent No. 7k his mother as his legal heirs. Mst. Nur Jehan, respondent No. 1, claimed a share in the property left by her father Muhammad Mukeem and her brother Haji Ali Bux in various survey numbers situated in Deh Mubarakpur by partition. In Survey Nos. 111, 121 and 137 she confined her claim to the Re. 0‑8‑0 share of Muhammad Mukeem and admitted the rest of the eight annas share in them as belonging to appellant No. 1, who had inherited it from her father Fateh Muhammad deceased. Respondent No. 1 also admitted that respondent No. 4 Mst. Gul Jehan Begum, since dead, and respondents Nos. 5 to 7 had orally gifted their shares in the property in dispute to respondent No. 2 who is entitled to get their share in the property in dispute on partition. One Muhammad Ishaq respondent No. 9, was also impleaded as a party to the suit, but the appeal against him was dismissed by an order dated 24th August 1959, apparently because no relief was claimed against him. Appellants Nos. 1 to 5 viz. Mst. Wazir Begum the widow of Pir Muhammad, Hazur Ahmad, Manzoor Ahmad, Mst. Uzran Khatun and Mst. Jamilan Khatun, children .of Wazir Begum, resisted the suit on the ground that the land in dispute did not originally belong to Muhammad Mukeem but was the property of deceased Pir Muhammad and Haji Ali Bux. In the alternative it was pleaded that deceased Muhammad Mukeem left some agricultural land in Deh Kutibkato, which under a family agreement was given to her four daughters Mst. Nur Jehan, Gul Jehan, Sahib Jehan and Lai Jehan in lieu of their share on relinquishment of their right in the property in dispute. They also pleaded that the property in dispute was in their adverse possession and respondent No. 1 was not entitled to claim any share in it. The gift in favour of respondent No. 2 by respondent No. 4 and respondents 5 to 7 was also denied. Appellant No. 1 further pleaded that land bearing survey Nos. 111, 121 and 137 exclusively belonged to her father, Fateh Muhammad deceased, and had solely fallen to her share. Some legal pleas were taken about the maintainability of the suit and insufficiency of court‑fee. The learned Subordinate Judge on the evidence before him came to the conclusion that the property in dispute originally belonged to deceased Muhammad Mukeem and that respondent No. 1 being his daughter is entitled to Rs. 0‑2‑4 share in it. He further found that in Survey Nos. 111, 121 and 137 eight annas share belonged to Muhammad Mukeem and respondent No. 1's share will be determined on that basis. The plea of adverse possession was negatived and the learned Judge held that respondents Nos. 4 to 7 had gifted their share in the property in dispute to respondent No. 2 and .he is entitled to claim their share in the property in dispute. All the legal issues were also decided against the appellants. Mr. Ahmed Saeed, the learned counsel for the appellants, has not pressed before us any legal issues decided against the appellants by the learned District Judge. He has only attacked the judgment of the learned District Judge on four‑fold grounds: firstly, that the property in dispute did not belong to Muhammad Mukeem and was the sole property of deceased Pir Muhammad and Haji Ali Bux; secondly, that respondent Nos. 4 to 7 the daughters of Muhammad Mukeem were given some land in Deh Mubarakpur belonging to Muhammad Mukeem in lieu of their share in the property left by Muhammad Mukeem and are not entitled to claim any share in the property in dispute; thirdly, that Pir Muhammad and Haji Ali Bux were in adverse possession of the property in dispute and respondent No. 1 is not entitled to claim any share in the property in dispute ; and fourthly, that the gift in favour of respondent No. 2 was not proved and cannot be acted upon. We will deal with these points separately. On the question whether the property in dispute originally belonged to Muhammad Mukeem or Pir Muhammad and Haji Ali Bux, the appellants have not produced any documentary evidence in support of their contention. Except the bare state ment of Mst. Wazir Begum (Exh. 98) there is not a shred of evidence to show that the property in dispute did not belong to Haji Muhammad Mukeem but to deceased Pir Muhammad and Haji Ali Bux. On the other hand, respondent Nur Jehan has produced a copy of Deh Form No. 7 from the Record of Rights (Exh. 82) which shows that the property in dispute originally belonged to one Muhammad Mukeem Khan Awan and was mutated in the name of Pir Muhammad Khan and Ali Bux Khan as heirs of their father. Mr. Ahmad Saeed, the learned counsel for the appellant, in the face of this docu mentary evidence had to concede that the property in dispute originally belonged to Muhammad Mukeem and Pir Muhammad and Ali Bux got their names mutated in the Record of Rights as his heirs. It is perfectly clear that the finding of the learned Sub ordinate Judge on this point is in accordance with the evidence on the record. On the second point also there is no documentary evidence to show that deceased Muhammad Mukeem left any property in Deh Kutubkato at the time of his death. Mr. Ahmad Saeed however invited our attention to certain admissions made by P. W. Nazir Ahmed (Exh. 81) and P. W. Hussain Bux (Exh. 91) in this respect. Nazir Ahmed stated "I had not seen my grandfather. I do not know if my grandfather owned any land other than one in suit. I think my grandfather had land in Deh Kutib Kato. Defendants 5 to 7 and the plaintiff had sold the land in Deh Kutib Kato. God knows why and how they sold that land." On the other hand, P. W. Hussain Bux stated "I had seen Muhammad Mukeem. He owned other lands also besides the land in suit. It was in Deh Kutab Kato. The daughters of Muhammad Mukeem had not sold the land in Deh Kutab Kato." D. W. Wazir Begum (Exh. 98), the solitary witness examined on behalf of the contesting defendants, stated "The sisters of my husband Pir Muhammad, had lands in Deh Kutab Kato. It used to be head that they had sold that land, I was told this by my husband Pir Muhammad." In cross‑examination she admitted: "I do not know to whom the sisters of Pir Muhammad sold the land in Kutab Kato. I also do not know whether this sale was registered or not. I cannot say with certainty that they had sold this property but Pir Muhammad told me that they had". P. W. Noor Jehan (Exh. 54) admitted in her statement that her father Muhammad Mukeem owned some land in Deh Kutab Kato, but stated: "My father Muhammad Mukeem owned some land in Deh Kutab Kato. We sisters did not get this land towards com pensation of our share. We four sisters have not sold any land in Deh Kutab Kato. It is not a fact that we four sisters took the land in Deh Kutab Kato and in lieu thereof did not get put our names for other land after the death of my father." The position that emerges from her statement is that her father deceased Muhammad Mukeem did leave some land in Deh Kutab Kato, but neither she nor her three sisters got it in lieu of their share or disposed it of. Thus, although the evidence on the record does show that deceased Muhammad Mukeem left some land in Deh Kutab Kato, but it is not established that this property by family arrangement was given to respondent No. 1 along with her three sisters in lieu of their share in the property left by their deceased father. The solitary statement of Mst. Wazir Begum appellant No. 1 being unsupported by any docu mentary or reliable oral evidence is of no value. On the evidence on the record it is quite clear to us that the view of the learned Subordinate Judge on this point is fully justified and there is nothing on the record which can persuade us to take a different view on this controversy. The principal question argued before us on behalf of the appellants was that they were throughout in adverse possession against the other heirs of Muhammad Mukeem, namely, respondent No. 1 and respondent Nos. 4 to

8. The learned District Judge's finding on this question is against them. Mr. Ahmed Saeed, the learned counsel for the appellants, strongly urged that right from the beginning the property in dispute was mutated in the name of Pir Muhammad and Haji Ali Bux, two sons of deceased Muhammad Mukeem, and after the death of Pir Muhammad and Haji Ali Bux the appellants and Nazir Ahmed, respondent No. 2, remained in exclusive possession of the property in dispute and were enjoying its profits and benefits. It is a well‑established principle of law that as between co‑sharers possession of one and non‑receipts of profits by the others do not set limitation running against the co‑sharers not in possession. In law the possession of one co‑sharer is always considered to be possession on behalf of all the co‑sharers unless there is an ouster of the other co‑sharer in respect of the joint property. In the absence of ouster a co‑sharer cannot be considered to be in adverse possession as against his other co‑sharers in such property. Ouster means denial of the right of the claimant to his or her knowledge, actual or presumed. It was therefore necessary for the appellants to prove in this case the ouster of respondent No. 1 and other co‑sharers from the property in dispute. The evidence on the record no doubt shows that in the Record of Rights the property remained in the name of Pir Muhammad and Haji Ali Bux, brothers of respondent No. 1 and respondents Nos. 4 to

7. This is not an unusual phenomena. Amongst the Muslims, the women being pardanashin ladies do not go out and assert their right to the property left by their deceased father and ordinarily the property in the Record of Rights or in the Municipal Records is mutated in the name of the male heirs of the deceased. Therefore this fact alone cannot lead to the con clusion that there was any ouster of respondent No. 1 or res pondents Nos. 4 to 8 from the property in dispute. It is correct that there is very little evidence on the record to show that respondent No. 1 or respondents Nos. 4 to 8 received or enjoyed the profits of the land in dispute, but this fact also cannot establish ouster from the property in dispute. The only evidence on the record that helps the appellant is that appellant No. 1, Wazir Begum and respondent No. 2 Nazir Ahmad leased out the property in dispute to strangers in their own names and enjoyed its profits. But the evidence on this point only shows that this was done somewhere in 1950 or 1951. In our opinion the suit out of which this appeal has arisen having been filed in the year 1955 this act cannot result in the ouster of the claimants because they have asserted their rights within four years of such art action. The burden of this issue was on the appellants. D. VV. Wazir Begum on this question is very clear. She stated: "I know Daim Shah and Nawab Khan. I had given them my share on lease for five years out of the suit land. Again says that she had given the land on lease to them along with the shares of minors and other family members. Out of that period they kept the land on lease with them for the first two years and returned it to me for the last 3 years by cancelling the lease. It was about 3 years back that they cancelled the lease." Further on she stated: "I had leased out the land to Hussain Bux along with the share of the two minors and other family members for five years. Hussain Bux continued this lease for all the five years. We have not given share to the sisters or mother' of Pir Muhammad out of the produce either in cash or in kind. Nor they have made any such demand because they have no share." In cross‑examination she stated: "The lease of land which I had given to Nawab Khan and Daim Shah was through registered document. I was the executant in that deed for myself as well as on behalf of the minors. I had executed this deed for Re. 0‑9‑0 share Again says that this Re. 0‑9‑0 share (illegible) was written in the deed. I had leased out the entire share belonging to me and the minors to Daim Shah and Nawab Khan. The lease in favour of Hussain Bux was also through a registered document. This lease in favour of Hussain Bux was also for the entire share belonging to me and the minors which comes to approximately 200 Jerabs. Two‑three years have passed out of the lease period of Hussain Bux. The registered lease deed is lying with Mukhtiarkar's office." The case of Asst. Wazir Begum at the trial was that partition was effected between Pir Muhammad and Haji Ali Bux on the one side and respondent No. 1 and respondents Nos. 4 to 7 on the other hand in respect of the property left by deceased Muhammad Mukeem, but except her bare statement there is no other reliable evidence to support her on this point. Her further case is that on the death of Pir Muhammad domestic partition had been effected whereby Nazir Ahmad, respondent No. 2, was given separate share in the property left by the deceased and she was given separate property including the share of the minor children, and after this partition the two parties were looking after the property given to them separately. But this case is not supported by any reliable evidence on the record. The Record of Rights shows that after the death of Pir Muhammad and Haji Ali Bux the agricultural land in dispute continued to remain in the Revenue Records in the name of the deceased and it was not mutated in favour of their heirs. In such circum stances it is difficult to accept the statement of D. W. Wazir Begum that any valid partition was effected between her and Nazir Ahmed and they were managing their shares separately. On the other hand, the evidence of D. W. Nazir Ahmed shows that he was managing the property on behalf of all the co‑sharers and was giving its produce not only to respondent No. 1 but also to her other aunts. The statement of this witness that he was looking after the property on behalf of the co‑sharers is supported by the land revenue receipts (Exh. 83 to Exh. 88). They show that the land revenue of some of the lands in dispute was paid by him on behalf of the owners of the property to the Revenue authorities. Exh. 90/1 to Exh. 90/6 also show that he sold the produce of the land in dispute to Hussain Bux and obtained receipts from him about it. The statement of Nazir Ahmed leaves no doubt in our mind that he was managing the property in dispute for some time and therefore we shall have to accept his statement that he was distributing the produce of the land amongst the other co‑sharers. On this evidence the claim of the appellant that she and her children were in adverse possession of the property has no foundation whatsoever and cannot be accepted. As already observed the lease deed executed by her in favour of Daim Shah and Hussain Bux was an act which was done within four to five years before the filing of the suit and therefore it cannot be considered to be in the nature of a denial of title of the other co‑sharers leading to her adverse possession. This evidence by itself is of no help to support the claim of the appellants that they were in adverse possession of 'the property in dispute. After careful consideration of all the evidence produced in this case, which consists of P. W. Noor Jehan, P. W. Nazir Ahmed, P. W. Hussain Bux and P. W. Gul Muhammad on the one side and D. W. Wazir Begum on the other side, it is abundantly clear to us that the claim of the appellants that the property in dispute was in adverse possession of Pir Muhammad and Haji Ali Bux or in their adverse possession has no foundation. Accordingly we are of the opinion that the finding of the learned District Judge on this point is in accordance with the evidence on the record. Coming to the question whether respondents Nos. 4 to 7 orally gifted their share in the property in dispute the respondent No. 2 Nazir Ahmed, the position is that both the donor and the donee have admitted that the gift was made orally and was accepted by respondent No. 2 Nazir Ahmed. On this point P. W. Hussain Bux has also supported the case set up by res pondent No. 1 and respondent No.

2. Heirs of respondent. No. 4 and respondents Nos. 5 to 7 have also admitted that the property in dispute had been gifted to respondent No. 2 Nazir Ahmed. In these circumstances the conclusion of the learned District Judge that the gift has been sufficiently proved is absolutely correct and there is no ground for us to differ from the view taken on this point. Accordingly we are of the opinion that the shares of the respondents Nos. 4 to 7, in view of the gift, now vests in respondent No.

2. On parti tion their share in the property in dispute will go to Nazir Ahmed. It was urged by Mr. Ahmed Saeed that the learned District Judge has not clarified the position, that not only appellant No. 1 is entitled to Re. 0‑8‑0 share through her father Fateh Muhammad in Survey Nos. 111, 121 and 137, but she is also entitled to get share as widow of Pir Muhammad in the rest of Rs. 0‑8‑0 share in them. This question does not require any clarification because the contesting respondents have not challenged the claim of appellant No. 1 in this respect. It is therefore clear that on partition this appellant will be entitled to eight annas share in these survey numbers in her own right, besides the share which she inherited from Pir Muhammad in the rest of the Re. 0‑8‑0 share. It has also been brought to our notice that the learned District Judge instead of passing a Preliminary Decree has passed a Final Decree for partition. This appears to us to be a clerical mistake. The decree passed by the learned Subordinate Judge will be treated as a preliminary decree and the final decree will only follow after the property in dispute is partitioned between the parties by metes and bounds. There is no force in the points raised in appeal and it must fail. Accordingly the appeal is dismissed with costs. A. H. Appeal dismissed.