1985 PLP 590 (SCMR)

Nemo for Respondents. Date of hearing: 5th December, 1984. M.S.H.QURAISHI, J.‑‑ Leave is sought from the judgment of the Lahore High Court, dated 7‑12‑1983, whereby the petitioners' writ petition was dismissed in limine.

2. The estate of one Nawab Khan, comprising agricultural land and a Haveli, was after his death in 1929, held by his widowed mother as limited owner. On her death in March, 1947, the collaterals of Nawab in the fifth degree, claimed, through a suit, their right to succeed to the estate in preference to the sisters of Nawab. The suit was also directed against Muhammad Sher, predecessor‑in‑interest of the petitioners, who claimed, to be in adverse possession of certain portion of the suit property. In the suit an issue was struck on the question of Muhammad Sher's claim through adverse possession but it was answered in the negative. The suit was finally decreed in respect of land in full and 1/3 of the Haveli. The sisters jointly with Muhammad Sher went up in appeal but failed while the cross‑objection of the collaterals was accepted and in' the result their suit was decreed in full. The sisters again jointly with Muhammad Sher, then instituted a second appeal before the High Court. A Division Bench of the High Court, after examining at some length the sisters' right to inherit ancestral/non ancestral property of the last male‑holder, came to the view that they were entitled to inherit non‑ancestral part of the property and accordingly accepted the appeal on 3‑5‑1951 in the following words: "The result of the above discussion is that regarding these four items of landed Property (Nos.3, 4, 8 and 9 as enumerated in the trial Court's judgment) and Haveli which are non‑ancestral in character, the appeal must succeed. The suit was, however, rightly decreed in respect of the ancestral portion of the property. We, therefore, allow the appeal in part to the extent of the non‑ancestral property, namely, the four items of landed property and Haveli mentioned above." The collaterals moved a certificated appeal before this Court but the same was dismissed on 8‑5‑1958. In implementation of the decree of the High Court, which thus acquired finality, Mutations Nos. 861 and 2143 were sanctioned on 6‑3‑1959 in favour of the sisters and the collaterals.

3. The petitioners, who did not figure in the said mutations, applied to the Collector for review on the ground that the same were against the decree passed by the High Court which had allowed their appear jointly filed with the sisters. The application was dismissed on 13‑5‑1980 and appeal and revision, which followed, were likewise dismissed on 18‑1‑1981 and 7‑5‑1981 respectively. They then, challenged the orders passed by the Revenue authorities and sought a direction to issue to implement the decree of the High Court dated 3‑5‑1951, through their said writ petition which was dismissed by the impugned judgment.

4. As already mentioned, the issue based on Muhammad Sher's assertion of title by adverse possession, had been found by the trial Court in the negative. It is not shown that in the further litigation that followed upto the Supreme Court, that finding had been specifically or expressly reversed. The High Court while dealing with the petitioners,' writ petition observed that the finding reached in the second appeal in regard to the said sisters' entitlement to inherit the non‑ancestral property did not inure for the benefit of the petitioners' predecessor-in‑interest because his claim was not based on a right to inherit and that the judgment of the High Court in the second appeal and of the Supreme Court could not be interpreted to be in his favour. The High Court further observed that the point raised was merely on a technical ground for which reason too the discretionary jurisdiction could not be exercised.

5. We find no reason to differ with the interpretation put by the High Court on the judgment and decree passed in the second appeal. There is no discussion whatsoever in that judgment of the entitlement of Muhammad Sher on the basis of adverse possession. Learned counsel for the petitioners, however, submits that the fact that the sisters had filed the appeal jointly with Muhammad Sher showed that they had conceded his claim and since the joint appeal had been allowed, it would follow that Muhammad Sher's claim had also been allowed. He, therefore, urges that the petitioners should succeed as against the sisters. There is no weight in the submission because by the same token, Muhammad Sher can also be said to have conceded the claim of the sisters by having joined them in their appeal, and there is good reason to believe so in the absence of any discussion in the judgment in the second appeal, in regard to his claim. The petition is thus without merit and is accordingly dismissed. M . I . Petition dismissed.