MUKAMMIL SHAH Versus MST. APOGAI

Rehmat Shah of village Gujjar Garhi, Tehsil and District Mardan; died somewhere in the year 1917‑18, when custom was in vogue. He was owner of land, previous Khasra No. 911, with present Khasra No. 869, measuring 50 kanals 8 marlas situated in village Jehangir Abad, Tehsil Mardan. He also left a house in village Gujjar Garhi. Rehmat Shah left a son Mukammil Shah and a married daughter Mst. Apogai. Some time after the death of Rehmat Shah, the husband of Mst. Apogai also died. She occupied parental house. A dispute arose over the occupation of the said house by Mst. Apogai. In the year 1930, on 8‑2‑30. Mukammil Shah instituted Suit No. 138/1 against Mst. Apogai for possession of the house con sisting of two kothas and a dalan, built on an area of 10 marlas. This suit ended in a compromise between the plaintiff brother and the defendant, sister, by the compromise deed dated 3‑5‑1930, (copy Exh. P. W. 5/1). This compromise has been translated by the learned trial Civil Judge in the present suit as under: --‑

"In this suit we have compromised in the following terms. A room and western verandah 4/5 marlas has been given out by Mukammil Shah to Apogai for residence till her marriage or death. No one else will have anything to do with it. Besides 4 maunds of maize, in summer four maunds of wheat will be given to her till her remarriage or death annually. The other room and verandah measuring 5 marlas shall be given to Mukammil Shah."

2. The land belonging to Rehmat Shah devolved solely on Mukammil Shah, in custom, by mutation No. 2665, attested on 28‑9‑1920 (copy Exh. D.W.1/1). This land in the present case is, in dispute between the sister and the brother. The revenue record with respect to the land requires close scrutiny. In the Midi Hagiat of 19^5‑26 (copy Exh. P. W. 1/I) in the column of ownership Mukammil Shah is entered as the owner. In the column of cultivation the land is entered as khud kasht. An entry on this jamabandi shows that by mutation No. 97, attested on 6‑5‑1930, Mukammil Shah leased the entire land to Mool Chand. In the jamabandi of the year 1930‑31 (copy Exh. P. W. 1/2) Mukammil Shah is entered as owner as before and Mool Ghand is shown as lessee. In the jamabandi of the year 1934‑35 (copy Exh. P. W. l/3) the previous entries are repeated with the change that Mool Chand cultivated the land through Amir Khan son of Hazarat Khan, a tenant‑at‑will. In the same jamabandi, in the column of kaifiat, it is recorded that by mutation No. 403, attested on 19‑1‑1937, the lease in favour of Mool Chand terminated. In the jamabandi of the year 1938‑39, (copy Exh. P. W. 1/4) the entry of ownership column remains the same. In the column of cultivation, the same Amir Khan, who cultivated the land under Mool Chand, is shown as tenant at‑will on half batai under Mukammil Shah. In the jamabandi of the year 1942‑43 (copy Exh. P. 1/5) the previous entry of column of ownership is repeated. However, the cultivation column shows that Mir Said, tenant‑at‑will cultivated the land on half 'batai' under Mukammil Shah. In the jamabandi of the year 1949‑50 (copy Exh. P. W. 1/6) Mukammil Shah retains the ownership while in the column of cultivation Bahruddin, tenant‑at‑will cultivated the land on half batai under Mukammil Shah. In the jamabandi of the year 19;3‑54 (copy Exh. P. W. 1/7) the entries of the previous jamabandi (copy Exh. P. W. 1/6) are repeated. Again in the jamabandi of the year 1957‑58 (copy Exh. P. W. 1/8) Mukammil Shah retains the sole ownership of the land and cultivated it as khud kasht.

Copy of the Girdawari (Exh P. W. 1/9) from Kharif 1948 (29‑10‑1948) till Rabi 1961 shows that the land remained in the ownership of Mukammil Shah and in his possession through various tenants shown in the copy.

3. On 22‑5‑1961 Mst. Apogai instituted the present suit against her brother Mukammil Shah, praying for possession of one‑third share to the extent of 16 kanals 16 marlas out of 50 kanals 8 marlas in Khasra No. 869 according to the jamabandi of the year 1957‑58. She claimed 1/3rd share out of the suit land as Shari heir of Rehmat Shah. She also based her claim on the compromise deed (copy Exh. D. W. 5/1, suit No. 138/1, decided on 3‑5‑1930) and that in obedience to the terms of the agreement Mukammil Shah have been paying her the produce of four maunds of maize in Kharif and 4 maunds of wheat in Rabi as co‑heir, but averred that the payment of the produce has now been stopped by Mukammil Shah defendant and, therefore, the suit.

4. Mukammil Shah contested the suit and the pleadings of the parties gave rise to the following issues :‑

(1) Is the suit within time?

(2) Is plaintiff estopped by her conduct from bringing the suit?

(3) Whether the defendant has been in adverse possession of the suit land for more than 12 years?

(4) Is plaintiff entitled to claim 1/3 share out of the disputed field number as the daughter of Rehmat Shah deceased, if so to what effect?

(5) Whether the inheritance of Rehmat Shah deceased exclusively devolved under custom on his sots Mukammil Shah defendant, if so to what effect?

(6) Whether the defendant admitted in Civil Suit No. 138/1 of 1930, the plaintiff's right to claim her share in the properties left by his deceased father, if so to what effect?

(7) As a corollary to issue No. 6, did the defendant agree to pay four maunds of maize and an equal amount of wheat per annum to the plaintiff as her share of the produce of the suit land, if so to what effect?

(8) Whether the aforesaid agreement was not acted upon by the parties, if so to what effect?

(9) Relief.

5. The learned Senior Civil Judge, Mardan tried the suit on the stated issues and by his judgment dated 28‑2‑62 dismissed the plaintiff's suit with costs.

6. Mst. Apogai plaintiff preferred appeal to the Addl. District Judge, Mardan, who by his judgment dated 23‑1‑1963 accepted the appeal, set aside the judgment and decree of the lower Court and granted the plaintiff a decree for possession of 1/3rd share out of the suit property with costs throughout.

7. Mukammil Shah lodged a revision petition in this Court on 9‑3‑1965, under section 115, C. P. C. as provided by the Code of Civil Procedure (Amendment) Ordinance, 1962. After the institution of this revision, the Code of Civil Procedure (Amendment) Act, 1963 (Act III of 1963), came into force on the 4th of April 1963. At the request of the learned counsel for the petitioner this revision petition is treated as a second appeal, in view of section 5 of the Act III of 1963.

8. The learned counsel for the appellant relied on Mst. Fatima v. Khuda Bakhsh and others (P L D 1959 Lah. 826): --‑ wherein it has been held :‑‑

"That if there be no proper evidence in support of a finding by the first Court of appeal, or the evidence is misread or misrepresented the finding, though one of fact, is vitiated and a Court of second appeal is entitled to review it."

The learned counsel in support of his arguments read out the relevant portion of the judgment of the Court of first instance and the Court of first appeal. The learned trial Civil Judge has dealt with issues Nos. 4, 5, 6, 7 and 9 jointly as under: --‑

"V. All these four issues are as regards the right of the plaintiff to inherit from. Rehmat Shah her father in presence of the living brother named Mukammil Shah. The separate discussion on the agreement and its effect would needlessly lengthen the discussion by repetition. The dispute and its genuine character can only be shaped by narration of other events like the death of Rehmat Shah and the relevant time thereof and the marital status of the plaintiff at the time. Both these facts being luckily admitted, the determination will not constrain us to sift facts but only to see what influence the admitted facts have on the shape of events. Rehmat Shah died somewhere in 1917, when Mst. Apogai was a married woman. The customary law then prevailing excluded her from inheritance as is proved by the inheritance mutation being solely in the name of Mukammil Shah her brother. This exclusive possession or right to such possession instituted adverse possession right from the beginning unless we can see its termination by the compromise dated 3‑5‑1930. The agreement as has been mentioned in the beginning was not as regards inheritance of Rehmat Shah but to occupation by Apogai of the house belonging to Mukammil Shah. This compromise in effect recognizes right of exclusive possession vesting in Mukammil Shah who in acknowledgment of the relationship of Apogai with him and his widowed status allowed possession to her for lifetime or till she took another husband. The compromise in no way derogates from the exclusive title but rather fixed it under the admission of Apogai. The right to live was only permissive possession which negatives from the proprietary title of the person taking advantage of permission. Thus even this document makes the defendant sole owner of all the property of Rehmat Shah.

VI. In view of the interpretation, 8 maunds of bi‑annual payments to Apogai does not create a vested right in the property. Such a right must essentially have a will and title to possess the property. The absence of both shows that by the allowance, no right was created in the property in favour of Mst. Apogai, who as a sister being dependent on the mercy of the brother, was to have this maintenance for lifetime. Besides, there is no evidence worth belief that the agreement was acted upon by passing of possession by the one party and allowing the maundage by the other. In fact, the attorney of the plaintiff by admitting possession of entire 10 marlas which was in dispute in 1930, has given a lie to the statement of other person who claiming to be tenants wanted to prove that parties has abided by the contract. The names of these tenants do not appear in the revenue papers otherwise some such words might have been brought out from the mouth of the patwari. In fact, the very death of Rehmat Shah and the entire pattern of subsequent events, nullifies the claim of joint possession and in this proof the compromise deed stands out as best evidence of non‑cosharership. The plaintiff, consequently, has no right to claim possession even if the defendant failed to pay her the annual allowance. The property had devolved on him exclusively and by over 12 years posses sion, the defendant has matured adverse possession and issue No. 1 against the plaintiff:"

The learned Court of 1st Appeal in its judgment observed as under :‑

"6. After this amendment, it became imperative that whenever any question of succession of a Muslim arises it was to be decided under the Muslim Personal law, but at the same time the law of limitation was always held to be applicable (P L D 1956 Pesh. 115 and P L D 1961 Pesh. 9). To be more clear, an heir of a Muslim can bring a suit in the Court of law and is entitled to his sharee share, no matter if the person whose property is involved, died before 1935; provided the law of limitation does not come in his or her way i.e. that the latter has not prescribed his title to the property, through adverse possession. Thus, keeping in view the principle laid down as mentioned above, Mst. Apogai being the daughter of Rehmat Shah is entitled to claim her sharee share (i.e. 1 /3rd) in a Court of law, provided she proves con vincingly that her suit is within time. In this case Mukammil Shah not only objected to the suit of the plaintiff to be barred by time but also asserted that he had prescribed title through adverse possession and the trial judge decided both the issues in favour of Mukammil Shah defendant. But in my opinion, the lower Court has erred in coming to these conclusion. The nature of possession of the defendant, after the death of his father up‑to‑date, is to be seen. If he had proved to be in exclusive possession without acknowledging the rights of the plaintiffs, then of course no matter Mst. Apogai became a co -owner in the suit property after the enactment of the Shariat Act, but title since clearly been denied, cannot bring the present suit. And if there is some material on the record to show that the plaintiff had always been treated as a co‑owner, then the finding of the lower Court is incorrect and shall have to be reversed.

7. As already mentioned above, mutation was attested in 1920 wherein Mukammil Shah had been shown as an exclu sive owner of the property. Under the Act prevalent at that time, the mutation was correct but incidentally in the jamabandis up‑to‑date, Mukammil Shah has been shown to be in possession, obviously on the basis of that mutation. But it does not mean that the claim of the plaintiff was totally denied by the defendant. The very suit brought by Mukammil Shah for possession of the residential house which ended in a compromise would show that the house left by his father was in possession of the plaintiff and that is why Mukammil Shah was compelled to bring that suit for possession. The compromise by itself shows that the defendant (Mukammil Shah) acknowledged the rights of his sister, Mst. Apogai in the estate of her father. In that house, the plaintiff was given a room and a verandah measuring in all 4 or 5 marlas and out of the income of the agricultural land, the defendant undertook to give 4 maunds of wheat and 4 maunds of maize equivalent to her share, to the plaintiff. In the plaint, the plaintiff admitted that she all along has been getting the produce mentioned in the compromise. If she had been taking the produce of the land, this means that Mukammil Shah con sidered her to be a co‑owner with him and that is why used to give her a share in the produce. Dilbar Shah, a dehqan of Mukammil Shah has stated on solemn affirmation that whenever the crop was ready, he used to take 4 maunds of wheat to the plaintiff and such quantity of maize under the directions of the defendant. This witness was cross‑examined thoroughly, but nothing came from his mouth to hold that he was stating in favour of the plaintiff for some ulterior motive or that he was deposing against the defendant for some reason. The age of Dilbar Shah was written as 30 years in the first month of 1962. It, therefore, means that till recently he was the dehqan of the defendant and was paying the produce to the plaintiff under the directions of the defendant. By mentioning his age, I want to impress that the plaintiff according to this witness, used to get the produce till only some time before the institution of the present suit. Rahim Shah has also supported the version of the plaintiff by saying that Mst. Apogai used to get a share of the produce from the defendant. No question was put to this witness as well to show that he was deposing for some ulterior motive against the defendant. Gulab, another witness has also stated to this effect, whose evidence can be brushed aside as he admitted that he is a friend of the son of the plaintiff. As against this evidence, the defendant has not adduced any evidence to show that he was not paying the produce to the plaintiff. So, in the light of the evidence produced by the plaintiff, it will not be wrong to hold that the plaintiff used to get a share from the defendant till recently and the storage of her share compelled her to bring this suit. This being the case, the suit of the plaintiff is definitely within time and thus the plea of adverse possession taken by the defendant falls to the ground.

8. The people over this part of the country have still not reconciled themselves to the Shariat Act and they always avoid to give a share according to the Shariat Act to the female heirs. I, therefore, hold that Mst. Apogai is entitled to one- third share in the estate left by her father, Rehmat Shah."

9. It is well settled that the N.‑W. F. P. Muslim Personal Law Shariat (Application) Act of 1935 is retrospective in effect, and that whenever a dispute comes before a Court of law with respect to succession to the estate of a deceased Muslim, the deceased will be deemed to have died under the domain of A Mohammadan Law, even if the death bad taken place at any time before the 6th December 1935, on which date the Shariat (Application) Act, 1935 came into force. Reliance is placed on l Mst. Rehmania and others v. Mst. Maqbula and others (P L D 1956 Pesh. 115) and Mst. Sahib Jan Bib! and others v. Walidad and others (P L D 1961 Pesh. 9).

10. However, it is well settled that the claim under the Muslim Personal Law Shariat (Application) Act, 1935 or like all other claims is subject to the provisions of the Limitation B Act. In Mst. Rehmania and others v. Mst. Maqbula and others it was held that by the N.‑W. F. P. Muslim Personal Law Shariat (Application) Act (VI of 1935), the Legislature in tended that from the date of the Act cases of succession, as they arose, would be governed by Muhammadan Law. It was never intended to reopen the past, except when express words were used to that effect. At page 120 it was also ruled: ---

"But the addition of subsection (2) to section 3 places retrospectivity on a different footing. We should at once say that in our opinion the amendment of this provision in 1952 does not carry the matter any further than it was in 1950. The intention in 1950 was that even if the full owner had died before 1935, if the question of his succession arose after the Act of 1935, the Act should apply. (t should be understood that such a question was to arise only lawfully, that is to say, the law of limitation, for instance, did not intervene."

In Mst. Sahib Jan BIN v. Walidad it has been held :‑

"If female heirs of a deceased, Muhammadan, namely, the widows and the daughters had been receiving produce from the land in lieu of their share of the income of the deceased's property, such female heirs will be deemed to have succeeded to the property as co‑heirs with the deceased's sons and they will be deemed to be in joint possession with the latter through receipt of their share of the produce. The omission of their names from the revenue record alone would not divest them of the right which had vested in them by succession. The sons' possession, on that evidence, would not be adverse to them. They would be held to have entered into possession as co‑heirs with them. In the payment of grain to the female heirs would lie the admission of their right in the estate."

In the same authority it was also held: --

"However, the claims under the Muslim Personal Law (Shariat) Application Act, 1935, are like all other claims, subject to the provisions of the Limitation Act. If a claim to the estate of the deceased is preferred under the Muslim Personal Law (Shariat) Application Act, 1935, and the claim is under the bar of limitation, the bar of limitation will prevent the claim from being entertained.

If the law of limitation prohibited the entertainment of claim after twelve years of the accrual of the right upon death, the claims will cease to be entertain able. The Customary Law heirs who succeeded as heirs and remained in enjoyment of the estate for over twelve years will be held to have matured their irrevocable title to the deceased's estate by prescription.

The possession as owners of customary law heirs in their own right, and not as co‑heirs, was to all intents had purposes hostile to the female Muhammadan Law heirs. Their posses sion cannot be deemed to be the possession of co‑owners or co‑heirs with the female heirs because their entry into posses sion was not as co‑heirs or co‑owners, but was an entry in their own right. In their possession there is an element of ouster as well. Ouster is constituted when possession is open and hostile, is in one's own right as full owner, and when these elements are within the knowledge of the party claiming right to the property.

The character of possession of customary law heirs cannot be altered by the change made by the Muslim Personal Law Shariat (Application) Act of 1935. The claim which the heirs of a deceased person have to prefer after the enactment of the Act of 1935 will be entertained only if the law of limitation offers no impediment. If it does, the claims will be rejected if preferred after twelve years of the death of the deceased whose estate is sought to be inherited."

11. No doubt, possession of one co‑heir is, in law, the possession of all his other co‑heirs. Mere non‑participation in the profits of the property by one co‑heir and exclusive posses sion by the other will not be sufficient to constitute adverse possession. Nothing short of ouster or something equivalent to ouster can bring about that result. If there is no ouster or c exclusion, the possession of one co‑sharer is not adverse to the other. The test whether there is an ouster is to see if the co heir in possession has openly and unequivocally and to the knowledge of the other co‑heir denied his title to the property. Thus we have to re‑appraise the evidence on record to find if the plaintiff as Muhammadan heir of her father Rehmat Shah had been receiving produce from the land in suit in lieu of her share of the income from the deceased's property from the date of the death of Rehmat Shah till the date of the suit, and if not so whether possession of the suit land by Mukammil Shah as full owner of the property under Customary Law amounts to ouster of his sister Apogai plaintiff and had been in possession openly and unequivocally to the knowledge of the plaintiff in denial of her title to the suit property. The entries in the revenue record from the misli haqiat of 1925‑26 up till the year 0 957‑58 and the entries in the Girdawari from the year Kharif 1948 till Rabi 1961 before the institution of the suit have been given in detail earlier. According to the revenue record it appears that Mukammil Shah was in occupation of suit land as sole full owner of the same as after the death of his father he cultivated the same as khud kasht, then leased it to Mool Chand till the expiry of the lease, that the land had been then under his possession through Amir Khan, Mir Said. Bahruddin, tenant at‑will till the jamabandi of the year 1953‑54 and till the last jamabandi of the year 1957‑58 and Girdawari of Rabi 1961 the land was in possession as khud kasht. This possession of Mukammil Shah manifestly amounts to adverse possession by his sisters ouster in denial of her title and to her knowledge.

12. The plaintiff has also relied on the terms of the compro mise (copy Exh. P. W. 5/1) entered into between her and Mukammil Shah on 3rd of May 1930 'in the previous suit in respect of the ancestral house (No. 138/1 decided on 3‑5‑1930). Mukammil Shah has admitted the contents of this compromise to be correct, in his statement before the trial Court. According to this compromise four maunds of maize in Fasli Kharif and 4 maunds of wheat in Fasle Rabi was to be given to Apoeal plaintiff till her remarriage or death. It is not clear from this agreement that the quantity of maize and wheat was to be given from the produce of the suit land. Mst. Apogai did not appear in Court as her own witness. Her attorney Inamuddin (P. W. 5) appeared as witness on her behalf. This witness has also not stated in specific term that his mother (the plaintiff used to receive 8 maunds of wheat and maize from the defendant out of the suit land which devolved on Mukammil Shah in custom. The plaintiff has produced P. W: 3 Dilbar Shah, who stated that he was a labourer (Dehqan) of Mukammil Shah, for one year and that whenever the crop was ready he used to take four Maunds of the produce to the plaintiff under the direction of the defendant. In this statement the witness has not specified the year in which the produce was paid by Mukammil Shah through him to the plaintiff. This witness is not recorded as a tenant of Mukammil Shah in the revenue record for any crop. Rahim Shah (P. W. 3) is another witness of the plaintiff to testify that the plaintiff is sister of the defendant and used to receive share from him according to the year's produce. It is an evasive statement. Gulag (P. W. 4) was also produced by the plaintiff to depose that the plaintiff used to receive 8 maunds of produce for a year from her brother. This is also an evasive statement. Thus in my view the defendant‑appellant has successfully proved that the suit of the plaintiff is barred by time and that he had been in adverse possession of the suit land for more than 12 years till the time of the death of his father Rehmat Shah. I am also of the view that the learned appellate Court has based his judgment on no proper evidence and has totally misread and misrepresented the evidence on record, and in this view of the case his finding is vitiated.

13. In conclusion, this second appeal is accepted. The impugned judgment and decree of the first appellate Court are set aside and that of the Court of first instance are restored. The parties to bear their own costs throughout.

Appeal accepted.