1999 PLP 249 (MLD)

Mauzullah Barkandi for Petitioners. Ziaur Rehman for Respondents. Date of hearing: 29th June, 1998. This revision petition is directed against the concurrent findings of the two Courts below, whereby the suit of the plaintiffs-respondents for declaration, permanent injunction-and possession was decreed in their favour, vide judgment and decree of the learned Civil Judge, Charsadda dated 10-10-1994 against which defendants-petitioners went in appeal which was dismissed by the learned Additional District Judge, Chrasadda, vide his judgment and decree dated 21-9-1995.

2. Brief facts of the case are that the plaintiffs-respondents instituted a suit on 12-2-1991 against the defendant-petitioner for declaration to the effect that they being the legal heirs of Hamid Shah and Mst. Mustafa Jan, are owners in possession of land measuring 40 Kanals and 15 Marlas, as detailed in the heading of the plaint. Permanent injunction was also sought to the effect that the defendants be restrained from interfering in the possession of the plaintiffs and also from denying the right of the plaintiffs to correct the Revenue Record. In the alternative they sought for the decree for possession of the land if not found in their possession and/or decree for possession of their share was also prayed for.

3. The averments of the plaintiffs are that Hamid Shah, predecessor-in interest of the plaintiffs: and defendants Nos. l to 3 was the owner in possession of 68 Kanals and 12 Marlas land in the suit Khasra and on his death his legacy devolved upon his L.Rs. i.e. Mst. Mustafa Jan widow 8/64th shares, Qasim Shah and Hussain Shah sons, 28/64th shares and Mst. Hussain Zeba, Mst.Dilruba, Mst. Hussan Zari and. Mst. Zainab daughter, 28/64th shares. Mst.Qamro first wife of Hamid Shah died in his lifetime, therefore, she could not get any share. Thereafter Qasim Shah died issueless and his legacy devolved upon his L.Rs. i.e. Mst. Mustafa Jan (mother) 3/18th shraes, Hussan Zeba, Mst. Dilruba and Mst. Hussain Zari (sisters) 12/18th shares and Hussain Shah step-brother 3/18th shares; that after the death of Mst. Hussain Zeba, mother of plaintiffs 1 and 2, her legacy devolved upon her L.Rs i.e. plaintiffs 1 and 2 and Mst. Mustafa Jan her mother and Mir Rehman husband, through Inheritance Mutation No.668 dated 7-3-1952; that on the death of Mst. Mustafa Jan, Plaintiffs 1 to 4 and defendants 4 and 5 inherited her estate and Inheritance ,Mutation No.1208 was attested on 11-3-1981 to that effect, although plaintiffs 1 and 2 also had the right to receive their shares; that about six months ago, defendants 1 to 3 denied that the ownership of the plaintiffs and started interference in their possession; that on checking the Revenue Record it came to light that Inheritance Mutation No.207, dated 13-5-1936 of Hamid Shah had been attested in favour of his sons Hussain Shah (father of defendants 1 and 2) and Qasim Shah and other L.Rs. of Hamid Shah including his wife Mst. Mustafa Jan were deprived of their shares; hence, the said mutation was liable to be corrected; that likewise from Inheritance Mutation No.607, dated 29-11-1949 it revealed that Hussain Shah (father of defendants 1 and 2) got 6/18th shares from the legacy of Qasim Shah despite the fact that he being the step-brother of Qasim Shah, was entitled to 3/18th shares, therefore, the said mutation was also liable to be corrected; that the defendants were asked to admit ownership of the plaintiffs over the suit property and not to interfere in their possession, but in vain. Hence, the present suit.

4. The defendants resisted the suit and the pleadings of the parties were reduced into as many as 9 issues and four additional issues were framed on 4-10-1994. Both the parties produced their respective evidence as they wished to adduce. After hearing the learned counsel for the parties, the learned Civil Judge, Charsadda, vide his judgment and decree dated 10-10-1994, decreed the suit in favour of the plaintiffs against the defendants as prayed for, with no order as to costs. Appeal of the petitioners against the said judgment and decree failed vide judgment and decree dated 21-9-1995 of the learned Additional District Judge, Charsadda. Therefore, the defendants-petitioners have come up to this Court through the present revision petition.

5. I have heard the learned counsel for the parties and perused the record of the case with their assistance.

6. Admittedly-, the last male owner of the property was Hamid Shah and on his death succession to his estate opened out to be distributed amongst his legal heirs, It is also not disputed that he was survived by a widow, two sons and four daughters but the Inheritance Mutation No.207 was attested in the names of his two sons only excluding other heirs on 13-5-1936. Under subsection (2) of section 3 of the N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 (as amended by N.-W.F.P. Act 11 of 1953) whenever a question relating to succession upon the death of a Muslim arises in any Court, the rule of decision shall be according to Muslim Personal Law (Shariat), as if that law had been applicable at the time of such death. This implied that even before the promulgation of the Act (ibid), the succession to estate of deceased Muslim had to be regulated according to personal law and. the Court had to decide the dispute between the legal heirs of the deceased regarding their share in the estate in accordance with the Muslim Personal Law. In view of the aforesaid law, the contention that Muslim Personal Law was not applicable to the question of inheritance with regard to the estate of Hamid Shah, is repelled. In case of "Mst. Farida and 2 others v. Rehamtullah and another" (PLD 1991 Supreme Court 213), the august Supreme Court of Pakistan while examining the aforesaid provision of law observed as under:-- "It was held in the case of Muzaffar Khan (PLD 1984 SC 394) that it would not make any difference. In so far as the question of retrospectivity is concerned the position both in Punjab and N.-W.F.P. in this behalf would not be dissimilar. It was also held that as soon as the decision of this Court in its Shariat Appellate Bench took effect as from 30th June, 1983, the words 'subject to the provisions of any enactment for the time being in force' in section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, 'ceased to have effect'. As a result amongst others one consequence visualised and held in the case of Muzaffar Khan was that 'the N.-W.F.P. Act of 1935' is to be given retrospective effect and that whenever a dispute comes before a Court of law with regard to succession to the estate of a Muslim deceased, he will be deemed to have died under the domain of Muslim Law, even if the death had taken place before coming into force of the West Pakistan Muslim Personal Law (Shariat) Application Act of 1935. Accordingly, in this case the fact that the Act of 1962 was not in force in the area concerned on 15-1-1976 would not make any difference because as observed above the Islamic dispensation contained therein read with the same dispensation contained in 1935 Act had taken over retrospectivity even prior to 15-1-1976 and even before the 1962 Act was formally applied to the area concerned. To what extent the law would be retrospective, as noticed above, it was held that the same would be definitely beyond 1935. Farthest limit we need not go into because in the present case Nadir Khan the last male-holder admittedly died in 1972 or 1973. Therefore, the appellants being his daughters would get their share in his inheritance in accordance with Islamic Law. This appeal, thus, is allowed. The remaining share in addition to what was granted to them by the High Court shall now be allowed to them and the necessary changes would be made in all the relevant records including the record of rights." Another judgment on the point is available in the same book at page 582 in case of 'Lal and 3 others v. Rehmat Bibi and another'. In this case the last male owner, according to the entries in the inheritance mutation, presumably died after the enforcement of N.-W.F.P. Muslim Personal Law (Shariat) Application, 1935, therefore, his legal heirs were entilted to succeed him, in accordance with Muslim Personal Law. The possession of the plaintiffs respondents over the disputed property has not been disputed by the defendants petitioners, thus, the plea of adverse possession raised by the defendants, would be of no avail to them. Even if the plaintiffs had not been in possession of any part of disputed property still they would be deemed to be in possession as co -owners. In case of "Mirza Ghulam Hussain and another v. Ch. Iqbal Ahmad" (PLD 1991 Supreme Court 290), the apex Court of the country held as under:-- "A co-sharer cannot be held to be in adverse possession against another co-sharer. Where one of the several heirs. takes possession his possession is not adverse to his co-sharers as he traces back the same to a lawful title and, thus, he would not be treated as a trespasser. The further corollary, on this principle regarding co-sharer, is that if a co -sharer also becomes a usurper and openly as well as in a hostile manner revolts against a co-sharer; and either by deceit or by force or other similar elements of treachery, completely ousts a co-sharer; only then, on the bases of another principle of complete ouster he a (co-sharer) also can be treated to have set up adverse possession. The element of the opposition and openness together with hostility and clash would then emerge at that point of time and then onward coupled with the ouster, the start of adverse possession would be set in. In cases where a defendant bases his claim on lawful title say through purchase, all the abovementioned elements are missing. He represents himself as a gentleman law-abiding person and claiming no hostility against the owner by basing his right on a lawful transaction, cannot be treated to have set up any claim as 'adverse' claim like what has been discussed above. He, of course, like that of a co-sharer, would be treated to have set up an adverse possession and claim on the day he fails in the initial lawful title/claim and makes an open hostile claim; no more pretending to be acting lawfully. And, thus, coming out openly, notwithstanding his failure to establish title through lawful means, with an illegal and immoral claim of possession with comlpete openness and hostility to the other. " There is no evidence worth the name to substantiate the plea of adverse possession of the defendants, therefore, in absence of such evidence, the possession of one co-owner shall be deemed to be possession of all other co -owners, hence, the plea of limitation that the suit was barred by time is also without any foundation.

7. The concurrent findings of the learned Courts below neither suffer from any misreading of evidence nor are based on surmises or conjectures, hence, no exception thereto can be taken in revisional jurisdiction by this Court. Consequently, this revision petition is dismissed with no order as to costs. C.M. No.521 of 1995 is also dismissed. A.A./173/P Revision dismissed