KALA KHAN Versus RAB NAWAZ

MUNIR A. SHEIKH, J.‑‑‑ This appeal by leave of the Court is directed against the judgment dated 4‑7‑1997 of the Lahore High Court whereby on acceptance of the revision petition, judgment of the First Appellate Court dated 22‑4‑1982 has been set aside and judgment of the trial Court dated 27‑4‑1981, decreeing the suit of the respondent restored.

2. Land in dispute was admittedly owned by Allah Dad deceased. He died issueless on 10‑2‑1957. On the statement of Massu Khan one of his brothers entry of Mutation of Inheritance No.126 was made on 16‑6‑1964 by the Patwari in which he disclosed that his deceased brother had also a issueless widow namely Janat Bibi. Subsequently this mutation was sanctioned by Assistant Collector on 23‑9‑1964 in the presence of Mewa Khan and Allah Dewaya, the other two brothers of Allah Dad deceased. They also disclosed that Jannat Bibi was widow of Allah Dad deceased and got the said mutation sanctioned in favour of Janat Bibi to the extent of 1/4th as issueless widow of deceased. This mutation remained unchallenged till 1978 when the present suit, subject mater of instant appeal, was instituted in the trial Court. It was pleaded in the plaint that said mutation of inheritance came to the knowledge of the plaintiffs who are successors‑in‑interest of Allah Dewaya and Massu Khan brother of Allah Dad deceased on 14‑2‑1978, when mutation of inheritance of Janat Bibi widow of Allah Dad deceased was sanctioned in respect of her 1/4th share and also 5 months back when the present appellants interfered in their so called possession. In the written statements apart from plea that Janat Bibi was entitled to 1'/4th share of the land of Allah Dad deceased by way of inheritance, it ways also pleaded that she had become owner of the land by way of adverse possession, which had matured into title.

3. The case of the respondent/plaintiff was that Allah Dad deceased was 'Shia' by faith, therefore, Janat Bibi his issueless widow was not entitled to inherit land according to Shia law. The trial Court after considering the evidence adduced by the parties on the issues framed came to the conclusion that' respondents /plaintiffs were in joint possession of the land alongwith Janat Bibi as co‑sharers, therefore, suit for declaration of their title was maintainable. On the issue of adverse possession it was held that there was no evidence to the said effect. Through judgment dated 27‑4‑1981 the suit was decreed by holding that the same was not barred by time as it was a suit between co‑sharers of the land.

4. In appeal filed by present appellant/defendant both the parties conceded that Allah Dad deceased was 'Shia' by faith. It was held that the suit was barred by time, as it was not filed within a period of 12 years of the sanction of mutation of inheritance or the possession of Janat Bibi over the land in dispute without right of inheritance which remained unchallenged for a quite long period upto 1978. On acceptance of appeal the suit was dismissed on the ground of limitation.

5. The revision petition filed by respondents/plaintiffs has been accepted through the impugned judgment passed by learned Judge in Chambers of the Lahore High Court. It was held that each and every fresh entry in the Revenue Record had given fresh cause of action to the respondents/plaintiffs for filing a suit, therefore, the suit was not barred by time as it was filed within limitation from the date of last adverse entry, against their right in the Revenue Record. It was also held that parties were jointly in possession of the land in dispute as co‑sharer, therefore, the suit could not be held to be barred by time. 'This appeal by leave of the Court is directed against the said judgment of the High Court.

6. We have noticed that Massu Khan one of the brothers of Allah Dad deceased who was father of Mewa Khan respondent/plaintiff appeared in this suit on behalf of respondent/plaintiffs had earlier reported to "Patwari' to enter mutation that Janat Bibi was widow of Allah Dad deceased meaning thereby that she was intended to be given share in the property of Allah Dad. Allah Dewaya and Mewa Khan the other brothers of deceased Allah Dad were also present before the Assistant Collector when the mutation of inheritance was sanctioned on 23‑9‑1964 'and they also conceded to transfer of 1/4th share in the property of Allah Dad deceased in favour of Janat Bibi as widow. After that they kept quiet and accepted the, said position of Janat Bibi as owner to the extent of 1/4th share. According to the findings recorded by the First Appellate Court entries in the Khasra Girdawari ffom D2 to‑ D6 which according to learned counsel relates to the years 1954‑1972, Janat Bibi was recorded in possession of the land in dispute i.e. 71 Kanals which is 1/4th share of the total land left by Allah Dad deceased measuring 287 Kanals. In his statement Musa Khan did not disclose as to which entry had given him fresh cause of action particularly in view of the fact that his deceased predecessor‑in‑interest Massu Khan, Allah Dewaya and Mewa Khan had not raised any objection over the rights of Janat Bibi earlier conceded to her through mutation of inheritance dated 23‑9‑1964. He also did not disclose in his statement as on which date he came to know about his rights entitling him to file a suit. He further admitted that Janat Bibi had been residing with them and they had been cultivating her land.

7. The question of limitation should have been viewed by the Court keeping in view the fact that neither Massu Khan nor Allah Dewaya and Mewa Khan the other brothers of deceased Allah Dad had raised any objection about the share of Janat Bibi in the land, therefore, the said mutation which remained unchallenged for a long period should have not been interfered with, even if she was not entitled to inherit being issueless widow of Allah Dad according to 'Shia' law. From the circumstances and facts established on record it can safely be presumed that the brothers of Allah Dad deceased on their own had conceded Jannat Bibi 1/4th share out of respect being widow of their brother who continued to be in uninterrupted possession thereof. In our view the respondents/plaintiffs were estopped by conduct to file the present suit as successors‑in‑interest of Mewa Khan, Massu Khan and Allah Dewaya as their deceased predecessor‑in‑interest had not challenged the title or Janat Bibi in the land measuring 71 Kanals.

8. Findings of facts recorded by the trial Court and affirmed by the High Court are based on non‑consideration of material facts established on record and law was not correctly applied to those facts.

9. For the foregoing reasons this appeal is accepted, impugned judgment dated 4‑7‑1997 of the High Court is set aside and that of the First Appellate Court dated 22‑4‑1982 of dismissal of the suit is restored. There will be no order as to costs.

M.H./K‑98/S Appeal allowed.