AFTABA Versus RAZA KHAN

1. NASIM HASAN SHAH, J.‑ The relevant facts are that Nawab deceased died shortly after the Partition leaving behind as his heirs his widow and his daughter, who are the appellants before us and other heirs through whom the first two respondents claimed. Nawab had made a Will bequeathing his entire I estate, which included Shamilat land to the appellants therefore, on his death, after some difficulty the appellants were able to obtain a mutation of inheritance in their favour on the basis of Nawab's will. This was through Mutation No. 2811 which was attested on 13‑10‑1949. One of the respondents challenged this mutation presumably on the ground that the Will was contrary to the Shariat. But the objections were rejected by the Revenue Officer therefore, the respondent filed an appeal which was dismissed by the Collector. No steps were taken to challenge the Collector's decision which became final. However, after nearly fifteen years, the first two respondents filed a suit under appeal against the appellants and some other formal defendants and their prayer in the suit was for a declaration that as the heirs of Nawab deceased they were entitled to a 3/8th share in the estate of Nawab deceased.

2. The suit was contested by the appellants and the learned Civil Judge, Peshawar, who heard the suit, held that the cause of action of the respondents arose on 14‑10‑1949 when the mutation sought by the appellants was attested. But, as the plaintiff‑respondents had not taken any steps to enforce their rights for more than twelve years, the learned Civil Judge, by his order dated 15‑3‑1967, held that the appellants had acquired title to the suit land by prescription ; therefore, he dismissed the suit of the said respondents.

3. The latter filed an appeal against this judgment which was dismissed by the Additional District Judge, Peshawar on 16‑11‑1968. They then challenged this order in a revision in the Peshawar High Court and as the learned Chief Justice partially allowed the appeal by his judgment dated 31‑3‑1979, the appellants/challenged the same by filing a petition for leave to appeal.

4. According to the learned Chief Justice, the estate of Nawab decease consisted of Shamilat land and other land, in which the deceased had exclusive proprietary rights. Without interfering with the concurrent findings of the lower Court with regard to the other land of Nawab deceased, the learned Chief Justice found that the claim of the appellants to the Shamilat land which they claimed to have inherited under Nawab's Will was hit by section 3 of the West Pakistan Land Disposition (Saving of Shamilat) Ordinance, 1959 (hereinafter called the said Ordinance), because no decision to the contrary had been taken by the competent Court or Authority under section 3 of the said Ordinance. He therefore, granted the first two respondents a decree for 3/8th share in the Shamilat of Nawab deceased.

5. Hence this petition.

6. Mr. Nazirullah, learned counsel for the appellants criticised the findings of the learned Chief Justice mainly on the grounds that as the respondents had allowed the Collector's decision by which the Collector had rejected their appeal against Mutation No. 2811 to become final, hence the finding of the learned Chief Justice that the appellants had not obtained a decision in their favour from the competent authority under section 3 of the said Ordinance was erroneous. He further submitted that even on the assumption that the claim of the appellants was bit by subsection (1) of section 3 of the said Ordinance, the appellants had acquired title to the Shamilat land through adverse possession.

7. We do not think there is much force in these submissions. So far as the last‑mentioned contention is concerned, suffice it to say that there could be no question of adverse possession amongst co‑sharers. So far as the earlier submission is concerned, it is based on a technicality and cannot be allowed to prevail to defeat the ends of justice. We are, therefore, not inclined to interfere with the finding of the learned Chief Justice whereby effect was given to the provisions of law viz. section 3 of the West Pakistan Land Disposition (Saving of Shamilat) Ordinance, 1959.

8. This appeal must, therefore, fail and is, accordingly, dismissed hereby, leaving the parties to bear their own costs.

9. M.Z. M. Appeal dismissed.