AMIN-UD-DIN KHAN, J. --- Through this civil revision, the petitioners-plaintiffs have challenged the judgment and decree dated 14.09.2000 passed by the learned Addl. District Judge, Khanpur, whereby the appeal filed by them was dismissed, and the judgment and decree dated 22.05.1993 passed by the learned Civil Judge, Khanpur, whereby the suit for declaration filed by the petitioners-plaintiffs was dismissed.
2. Briefly, the facts as leading to this civil revision are that the petitioners-plaintiffs on 22.12.1981 filed a suit for declaration alleging therein that they are owner of suit property fully mentioned in the head-note of plaint on the basis that they are the sons of Mst. Ghulam Jannat, who was the only daughter of Allah Jewaya and mutation of inheritance No. 1105 attested on 30.01.1956 is against the law and Shariat and is not binding upon the plaintiffs, therefore, the decree for specific performance on the basis of a compromise by defendants Nos. 2 to 5 in favour of defendant No. 6 with regard to the suit property has also no effect against the rights of plaintiffs.
The suit was contested by filing written statement. The Trial Court framed issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the close of trial, vide judgment and decree dated 22.05.1993 suit was dismissed by the Trial Court. An appeal was preferred by the plaintiffs before the first Appellate Court, which also met with the same fate vide judgment and decree dated 14.09.2000. Hence, this civil revision.
3. The Trial Court while recording the findings on issues Nos. 1 to 3 admitted that plaintiffs are the legal heirs of Mst. Ghulam Jannat, who was the daughter of Allah Jewaya and defendants Nos. 1 to 5 are not legal heirs of Allah Jewaya and mutation was wrongly attested, but dismissed the suit on the basis that it is time-barred. On issue No. 4 the Trial Court recorded the findings that defendant No. 6 is a bona fide purchaser.
4. The respondents have been proceeded against ex parte vide order dated 26.04.2012.
5. I have heard the learned counsel for the petitioners and also gone through the entire record minutely.
6. I have noticed that D.W-3 has admitted that Ghulam Qadir, Abdul Rasheed and Allah Jewaya are sons of Ahmad A.I. Learned counsel for the petitioners has referred the document to prove that Ghulam Farid was referred in the document alias Allah Jewaya and this was done only to usurp the property of Allah Jewaya and the mother of petitioners, namely, Mst. Ghulam Jannat. As against the findings recorded by the Trial Court with regard to the wrong attestation of inheritance mutation and with regard to relationship of petitioners with Mst. Ghulam Jannat and Allah Jewaya, no cross-objection or appeal was filed anywhere, therefore, these findings remained intact till today.
7. The only issue with regard to the limitation and the decree passed in favour of defendant No. 6 is to be looked into.
8. So far as, the matter of limitation is concerned. It is settled law that when a propositus dies, his legal heirs automatically become the owner and all the persons entitled become joint owners therefore, no limitation can be rest against the joint owner, as the possession of one co-sharer is presumed under the law to be the possession on behalf of all other co-sharer. In this context, reliance can be placed upon "PLD 1990 Supreme Court 1 (Ghulam A.I and 2 others v. Mst. Ghulam Sarwar Naqvi)". In this view of the matter, the findings recorded by the Courts below with regard to the limitation are against the law.
9. The second point which the Courts below have emphasized upon is that defendant No. 6 is bona fide purchaser. I have noticed that he got the decree for specific performance at the appellate stage through a compromise and it was done during the pendency of suit in hand, therefore, by no stretch of imagination. He can be said to be a bona fide purchaser and even otherwise the decree passed during the pendency of suit, lis pendens is fully applicable in this case. Further, the first Appellate Court fell in error while giving the observation that plaintiffs-appellants were bound under the law to challenge the decree for specific performance in an application filed under Section 12(2) of the C.P.C. I am afraid that the findings of first Appellate Court are absolutely against the settled principles of law. It is not the intention of law to file first the application under Section 12(2) of the C.P.C. For setting aside the decree and then file a suit for declaration for getting a decree for their title. In these circumstances, the decree passed in suit for specific performance was rightly challenged in the suit in hand.
10. In the light of what has been discussed above, this civil revision is allowed and the impugned concurrent judgments and decrees passed by the Courts below are set aside. The result would be the suit for declaration filed by the petitioners- plaintiffs shall stand decreed in their favour with costs throughout.
Civil revision /suit decreed.