' This revision petition is directed against the concurrent judgments and decrees of the learned two Courts whereby suit for declaration and possession filed by the respondent-plaintiff has been decreed. It arises out of the following circumstances.
2. On 6-4-1985, Mst. Paris, the respondent herein filed the instant suit with the averments that Allah Yar was the owner of the disputed land in Mauza Jhok Bhorani. He first married Mst. Sahib Bibi and from that wedlock, the petitioner was born. On the death of Mst. Sahib Bibi, Allah Yar married Mst.
Sat Bhari and from that marriage, the respondent-plaintiff was born. According to the averment of the plaint, Allah Yar aforesaid died oti 25-4-1948, the petitioner was then a minor and in collusion with the Revenue Authorities, the petitioner got sanctioned Mutation No.470 on 18-6-1954 exclusively in his faovur.
3. The suit was contested by the petitioner. His defence was that the respondent had earlier filed Suit No.78 of 1980 with regard to the estate of Allah Yar which was decreed ex paste but it was set aside on the application of the petitioner and the said suit was still pending in which she had not challenged Mutation No.470. Therefore, the instant suit was barred by the provisions of Order II, rule 2 of the Civil Procedure Code. Pleas of limitation and adverse possession were also raised. As far as the relationship of the respondent with Allah Yar is concerned, it was denied. Parties led evidence in support of their respective contentions.
4. The learnefl trial Court found that in the suit earlier filed by the respondent, the gift-deed dated 30-4-1949 by Allah Yar in favour of the petitioner and Mutation No.311 attested on 1-12-1949 on the basis of the said gift-deed were challenged and, therefore, the cause of action for the two suits being different, the provisions of Order II, rule 2 of the Civil Procedure Code were not attracted. The suit was held to be within time on the ground that possession of one co-sharer is possession of all.
As far as relationship of the plaintiff-respondent with Allah Yar is concerned, reliance was placed on the statement of D.W.1, son and attorney of the petitioner in which he had admitted that the plaintiff-respondent was daughter of Allah Yar from his marriage with Sat Bhari. Accordingly, Mutation No.470 attested on 18-6-1954 was declared illegal, void, ineffective against the rights of the plaintiff-respondent, she was held entitled to 1/3rd share in the disputed property and suit of the respondent was decreed on 21-12-1991. Consideration. He categorically admitted that the plaintiff-respondent was born from the marriage of Allah Yar with Sat Bharai. This admission clinches the issue as to relationship of the plaintiff-respondent with the deceased Allah Yar.
7. I have, however, noticed that the plaintiff-respondent had also claimed possession of the land in dispute. After the finding of the learned two Courts that the parties were co-sharer in the land in dispute, the suit could not be decreed to the extent of prayer for possession because the remedy of a co-sharer is to seek partition. Accordingly, this petition is partly allowed to the extent that the suit of the plaintiff-respondent shall be deemed to have been decreed only to the extent of declaration that she was entitled to 1/3rd share in the estate of the deceased Allah Yar in Mauza Jhok Bhorani.
5. The petitioner filed an appeal which was dismissed vide judgment and decree dated 10-7-1994 of the learned District Judge, Jhang, which has been assailed in this revision petition.
6. Unfortunately, nobody is in attendance. I have carefully examined the record including the impugned judgments. The issue regarding applicability of the Order II, rule 2 of the Civil Procedure Code, the limitation and the relationship of plaintiff-respondent with Allah Yar, deceased have rightly been answered concurrently by the learned two Courts. I have examined the statement of D.
W.1. He stated that till the creation of Pakistan, the daughters were not entitled to inherit according to customary law, and that Allah Yar had died before partition. No such plea was raised in the written statement. Therefore, it could not be taken into ' No order as to costs.