1994 C L (PLP)

Khawaja Muhammad Farooq for Respondents. Date of hearing: 17th November‑ 1993. This appeal has arisen from a suit filed by the appellant for declaration and permanent injunction as consequential relief which has been directed against judgment dated 20‑11‑1973 passed by the lower appellate Court dismissing the appeal against judgment and decree passed by the trial Court dated 15‑6‑1972 through which the appellant's suit had been dismissed.

2. The dispute raised in the suit was regarding title in the suit land which was admittedly jointly owned and possessed by the parties. According to the appellant the shares of which he had become owner by way of inheritance had not been correctly recorded in the Revenue Record against which entries he filed the suit. The suit was resisted on the ground of limitation as also that the same was not maintainable in the present form.

3. The trial Court held that the appellant was challenging the entries made in the Revenue Record as for back as twenty years before in pursuance of mutation of inheritance, therefore, the suit filed after the said period was barred by time. Under issues Nos.2 and 3 it was held that the suit for declaration and for permanent injunction was maintainable and there was no defect in the form because both the parties were in joint possession of the land which was jointly owned by them. The findings recorded by the trial Court aforementioned were upheld by the lower appellate Court while dismissing the appeal of the appellant.

4. Learned counsel for the appellant argued that since the parties were admittedly joint owners and were possessing the land jointly, therefore, the suit could not be held to be barred by time because a person in joint possession of property inherited by the parties could bring the suit when the other joint owners would challenge his right in the property and in this case it was the question of extent of ownership rights based on inheritance of each of the parties, as such, suit could not have been held to be barred by time.

5. The argument has force. In view of the findings recorded by the two Courts below that the parties were in possession of the property jointly owned, as such, the dispute being only to the extent of shares which each of the parties could hold by way of inheritance, therefore, the suit could not be held to be barred by time and the findings on issue No. 1 regarding limitation are not sustainable in view of the findings on issues Nos. 2 and 3 regarding form of suit.

6. The appeal is, therefore, accepted. The judgments and decrees dated 15‑6‑1972 and 20‑11‑1973 passed by the two Courts below as regards findings on issue No. 1 are set aside. The suit is remanded to the trial Court for disposal on merits. There will be no order as to costs. H.B.T/K‑126/L Appeal accepted.