1. AMIR HANI MUSLIM, J. --- This civil revision has chequered history. The record reveals that originally some where in 1928 a suit was filed by the Predecessors of the Applicants against the . Ancestors of the Respondents predecessors and the plaint in the said suit was amended at times and ultimately the suit. This decree was appealed against and in appeal the matter was remanded to the Trial Court for hearing afresh. The Trial Court however on remand numbered the suit as Suit No. 9/1958 and by its decree dated 25.9.1961 decreed the suit in favour of the Respondents.
2. I have perused the contents of the plaint in Suit No. 9/1958 and I find that this suit was 'suit for administration' between the parties. The suit- was titled as suit for possession, mesne profits and partition but the prayer made in the suit sought administration of the property left by their ancestors. After the decree of the said suit, according to the learned counsel for the applicants, the property was not mutated and the decree was not satisfied. However, he admits that thereafter again dispute arose between the parties, which culminated in criminal litigation and the applicants were acquitted.
3. During the pendency of the criminal proceedings, this Court directed- the parties to approach the Civil Court and somewhere in 1984, the present respondent filed the suit against the applicants before the Civil Court for possession mesne profits and partition. In the pleadings the respondents have pleaded that they were heirs OF the respondents in Suit No. 143/58 and such were joint owners of the suit property. They further pleaded that they had their share in the suit property which has admittedly remained un-divided between the heirs and had prayed for possession of the land as per their share pursuant to the decree passed in 1961.
4. As against this, in the written statement the claim of the respondents, was disputed by the applicants inter alia on the ground that they are in continuous possession of the property, subsequent to the decree in the suit in 1961 as no execution application., was made by the respondents and. After lapse of 23 years a fresh suit cannot be filed which suit according to the learned counsel for the applicant was barred by limitation and was hit by the previous of Section of 11 of the C.P.C. '
5. The Courts below after framing issues which according to the learned counsel for the applicants were identical to the issues framed in Suit No. 143/1958 and allowed parties to lead evidence decreed the suit of the respondents against which the applicants preferred appeal which appeal was also dismissed^hence this revision.
6. The applicants have impugned the judgment of the Courts below inter alia on the ground that the second suit filed by the respondents which has been decreed by the impugned judgment was hit by Section 11, C.P.C. His further argument was that the second suit was barred by limitation as the Applicants were in exclusive possession of the suit property even after the decree in favour of the respondents in 1961. His further argument was that the Applicants do not derive title from Awand and dispute that he was common ancestor parties.
7. As against this the learned counsel for the Respondents submits that the second suit filed by the respondents was, neither hit by limitation nor by the provisions of Section 11 of C.P.C. His contention was that Section T1 would only attract when the proceedings in the' previous suit were between the same parties and in the present case according to the learned counsel for the respondents, the parties were different and the decree in favour of the respondents in 1961 was satisfied and after satisfaction of the decree further properties were purchased and possession of these properties became cause of dispute resulting in criminal litigation. In criminal litigation, on the directives of this Court a civil suit was filed by the Respondents. 'According to the learned counsel the cause for filing the second suit in 1984 by the respondents was distinct then the cause of the earlier suit. He has relied upon the judgment reported in PLD 1961 Kar. 165.
8. I have heard the learned counsel and perused the record. In a suit for administration of property neither the principle of res judicata nor the limitation would apply and unless the properties are distributed between the heirs in accordance with Sharia no co-owner can deprive to inherent the properties to the other owners on these technicalities. There is no period of limitation for filing any administration suit and each judgment that in any administration suit is plaintiff as there is no conflict of interest between the parties except in a rear case.
9. It is also settled law that possession of properties by one of the co-owner would not defeat the right of other co- owners, who in Jaw can inherit their sharp in land in question. Possession of land which is in the nature of trust and the co- owner does not acquire the status of owner by lapse of time.
10. In the present proceedings the learned counsel for the applicants have not been able to deny that the original suit in respect of the properties was for administration of the properties and has failed to show the status of his clients in the original suit. From the pleadings of the parties I could not lay hands on any paragraph of the pleadings in order to for the/settle issue that whether Awand was common ancestor of the parties or not. This fact was neither pleaded in the written statement of the applicants however an issue was framed whereas in the previous suit between it was held that Awand was common ancestor of the parties and the suit land was in joint possession. This finding has not been challenged by the applicants before any forum. Even their joint possession of un- divided shares of the suit property was in issue in the earlier round of litigation and not been challenged. The judgment and decree passed 1.961 substantiate that the suit property was jointly possessed by the Applicants beside the fact that it was I the nature of undivided shares. Mere non filing of the execution proceedings by the respondents will not improve the status of the applicant from co-owner to that of an- owner on the basis of possession. The possession of land by the applicants and co-owner is in the nature of trustee as the previous suit was of administration of the property and the applicants have not acquired the properties either by purchase or otherwise to take plea of adverse possession.
11. The arguments of the learned counsel for the applicant do not appeal to reason that after lapse of 23 years of the decree in the previous suit the mutation was not effected in the record-of-right in the . Name of the Respondents and since the applicants are in exclusive possession have acquired the status of owners. A co-owner physical possession of the property could not acquire exclusive ownership on the ground of limitation as for all times he remains trustee of the suit property.
12. Therefore the question of limitation either for the purpose of possession or mutation in the given circumstances would not come in the way of the Respondents to seek the relief against the Applicants.
13. The question as to whether provision Section 11, C.P.C, would come in the way of the respondents can be adverted by examining as to whether after the decree of the Suit in 1961 more land was purchased resulting in dispute between the parties in regard its possession, culminating into criminal proceedings. The criminal litigation between the parties has not disputed. This Court as the record reveal reflect that at the some point of time had advised the parties to approach the Civil Court for physical possession of the suit property. Pursuant to which a Suit in 1984 was filed by the Respondents. The cause filing of the suit by the Respondents is distinct besides the relief sought in the suit. The cause in Suit 143/58 had distinct scope and therefore, would not attract the bar contained u/s. 11 of the C.P.C.
14. More over the applicants themselves admit that they did not prefer appeal against the decree of 1961. The judgment and decree has declared the status of the Applicants as joint owner joint possession and unless it is partitioned by the Mukhtiarkar in terms of the Partition Act, 1893. The decree is not satisfied. The suit property was divided in terms of the decree passed under the administration suit arid the limitation will not apply. The Courts below were justified in passing the impugned judgments against the applicants. The learned counsellor the applicants has failed to urge any further point.
15. For the afore-said reasons this revision is dismissed in limine along with the listed application as on the last date of hearing I had noted that this was an old matter had not crossed the stage of Katcha Peshi. The parties were put to notice that they would ready to argue the revision at Katcha Peshi level and both the learned counsel did consent to this arrangement.