' SARDAR MUHAMMAD ASLAM, J.---This civil revision is directed against the judgment and decree of the learned Additional District Judge, Narowal, whereby he dismissed the suit of the petitioners for possession through partition on the ground of limitation.
2. Briefly the petitioners filed a suit for possession through partition in respect of the property fully detailed and described in the head note of the plaint owned by Mst. Zainab Bibi deceased. She was survived by two daughters i.e,, petitioner No,2 and respondent No,
1. The petitioner No,1 and the respondents Nos.2 and 3 are brother's sons of Mst. Zainab Bibi. Respondent No,1 filed her written statement. Respondent No,2 filed separate consenting written statement while respondent No,3 was proceeded ex parte. Issues were framed. Evidence was recorded. The petitioner Muhammad Inam appeared as P. W.1 while Mst. Khushnood Akhtar D.W.1 has appeared as her own witness while Javaid Iqbal appeared as D.W.2. Muhammad Inam, P.W.1 was again examined as P.W.2 in rebuttal.
3. The learned trial Court by its judgment and decree dated 15-12-1997 decreed the suit in favour of petitioner No,
1. Relief to petitioner No,2 was declined by recording finding under Issue No,6 that she has transferred her share in the property in favour of respondent/ defendant No,1, after obtaining a sum of Rs,4,000. This decree was challenged in appeal by the petitioner. The learned appellate Court dismissed the appeal as well as the suit for possession through partition observing that the same is barred by time.
4. The learned counsel for the petitioner contends that since issue of limitation was not framed the petitioners were taken by surprise by judgment of the learned appellate Court non-suiting the petitioners on ground of limitation; that the suit being one for partition and the parties to the suit admittedly being co-sharer in the joint property, the question of limitation was misplaced; the findings recorded in declining relief to petitioner No,2 is based on surmises and conjectures and that both the learned Courts below misdirected themselves and misconstrued the law on this score.
5. Conversely, the learned counsel for the respondents, in opposition, argued that the suit was barred by time. He elaborates that an objection in this regard was taken in the written statement filed by respondent No,1 and that the parties were alive to the controversy of limitation and produced evidence, therefore, the petitioners have not been prejudiced. As to the dismissal of the suit of petitioner No,2 he contends that the learned Courts below recorded concurrent finding of fact holding that the petitioner No,2 had transferred her share in property to respondent No,1 against consideration of Rs,4,000 which is immune from interference in the revisional jurisdiction of this Court.
6. Heard. Record perused.
7. The suit property was owned by Mst. Zainab Bibi. She was survived by her two real daughters Mst.
Noor Fatima, petitioner No,2 and Mst. Khushnood Akhtar, respondent No,1, besides Muhammad Ikram and Javed Iqbal sons of her brothers, Jan Muhammad and Muhammad Sharif respectively.
There is no dispute between the parties to this effect. The case of respondent No,1 is that petitioner No,2 had transferred her share in the property in her favour after obtaining a sum of Rs,4,000. In support of her plea she appeared herself as D.W.1. The alleged transfer is not supported by any document. The statement of respondent No,1 is not corroborated by any other independent evidence. Her self-serving statement cannot be accepted. She claims to have purchased the share of her sister against consideration of Rs,4,000. The transfer should have been made as provided under section 54 of the Transfer of Property Act. D.W.2 Javaid Iqbal, one of the respondents stated that Mst. Noor Fatima, petitioner had transferred her share of the property after obtaining a sum of Rs,4,000. In cross-examination, he admits that sale consideration was not paid in his presence. He stated that he was informed of this fact by her mother. She was alive. She did not appear in the witness-box. Muhammad Inam, P.W.2, husband of the petitioner No,2 Mst. Noor Fatima in rebuttal denied transfer of Noor Fatima's share to defendant No,1 against consideration of Rs,4,000. In this view the findings of the learned Courts below on Issue No,6 are not sustainable and are hereby reversed answering this issue against the respondent/ defendant No,1.
8. The respondent No,1 did raise an objection in regard to limitation. No issue was framed. No evidence was produced by the parties. Though the learned appellate Court can take notice under section 3 of the Limitation Act, but this being mixed question of law ,the parties should have been given an opportunity of producing their evidence in support of their respective pleas before adjudication.
9. The suit property is a residential house. Physical possession is with respondent No,
1. The petitioners are co-sharer in the property. Possession of the one co-sharer in joint property is deemed to be possession of each co-sharer in every inch of the property until it is partitioned by metes and bounas.
10. Mst. Zainab Bibi died in the year 1982. On her death all her heirs became entitled to the property in accordance with their respective shares and thus acquired constructive possession. Petitioners being one of the heirs of Mst. Zainab Bibi shall be deemed to have acquired ownership and joint possession of the property to the extent of their respective share. The petitioners required the respondent No,1 to partition the property and on her refusal filed suit within a period of two months which cannot be said to be out of time.
8. In view of what has been discussed above, the civil revision is allowed, impugned judgment of the learned District Judge is set aside and that of learned trial Court is restored with modification that suit of the petitioner No,2 shall also be deemed to have decreed. The shares of the parties shall be as under:--
(i) Petitioner No,2 and respondent No,1 as daughters will take 1/3rd share each.
(ii) Petitioner No,1 and respondents Nos.2 and 3 will take 1/9th share each in the remaining 1/3rd share as residuaries.