AMIN-UD-DIN KHAN, J. --- Through this civil revision, the petitioners have challenged the judgment and decree passed by the Addl. District Judge, Rahim Yar Khan dated 29.05.2004, whereby the appeal filed by the petitioners was dismissed, and against the judgment and decree passed by the Civil Judge, Rahim Yar Khan dated 14.02.2004, whereby the suit filed by the respondents was decreed.
2. The brief facts as leading to the Instant civil revision are that the respondents-plaintiffs 05.12.1998 filed a suit for declaration stating therein that the father of the parties, namely, Lal Din son of Mian Mola Bakhsh was owner of lot No. 4 of land measuring 1800-Kanals fully described' in the head note of the plaint, by way of purchase in open auction on 07.01.1941 from the Government of Bahawalpur.
He died in the year 1945. At the time of death, his 05 sons and 05 daughters were alive. Further alleged in the plaint that in accordance with her right, she was entitled to get 120-Kanals out of the suit land. She challenged PattaMalkiat sanctioned on 29.01.1952 and on the basis of that Patta- Malkiat, Mutation No. 32 sanctioned on 17.05.1956 in favour of sons of deceased.
The defendants appeared and filed written statement. They denied from the'assertions made in the plaint by the plaintiffs and stated that in accordance with Section 20-A of the Colonization of Government Lands (Punjab) Act, 1912, the land was a grant and not the ownership at the time of death of Lal Din. Therefore, the grant was transferred in favour of the sons only. Further stated that the father of the parties agreed to transfer some land in favour of his brother, therefore, suit was stated to be incompetent. Many preliminary objections were also raised by the defendants. The Trial Court, from the divergent pleadings of the parties, framed necessary issues on 02.11.2000 and invited the parties to adduce their respective evidence. Both the parties produced their oral as well as documentary evidence in support of their versions. Vide judgment and decree dated 14.0?.2004 learned Trial Court decreed the suit. Feeling aggrieved thereby, the defendants preferred an appeal before the first Appellate Court, who modified the decree of the Trial Court declaring that the propositus of the parties was owner of 1390-Kanals at the time of his death, therefore, the first Appellate Court declared that parties will get their share of inheritance from 1390-Kanals and not from 1800-kanals. Hence, this civil revision.
3. Learned counsel for the petitioners-defendants states that Lal Din had not paid the entire amount to the Government, therefore, full proprietary rights were not transferred in his favour and he was just a grantee; that the petitioners reported the matter to the Patwari showing all the legal heirs and the Patwari in accordance with the law prevailing at that time in State of Bahawalpur, sanctioned the mutation of inheritance in the year 1946; that the suit was not competent; that the suit was time-barred; that it is not a case of inheritance and that the petitioners have not concealed the facts from the revenue hierarchy and from this Court. It has been further stated that in the year 1948-49, the names of petitioners-defendants were incorporated in Jamabandi as tiller; that in accordance with Section 15 of the Colonization of Government Lands (Punjab) Act, till the time full payment is not made, the bidder of the land in open auction will be treated as a grantee and not an absolute owner.
4. On the other hand, learned counsel for the respondents-plaintiffs states that admittedly at the time of order passed by the A.0 dated 07.11.1946, none of the respondents was present; that even one of the respondents was married and was residing anywhere else, whereas admittedly the other respondents were minors at that time. Further that it is not mentioned in the order impugned that it has been passed under Section 20 of the Colonization of Government Lands (Punjab) Act, 1912. Learned counsel lastly contended that the land was purchased in open auction, therefore, the condition of tenancy does not apply to that land. There are concurrent findings of facts recorded by the Courts below.
5. I have heard the learned counsel for the parties and have perused the record minutely with their able assistance.
6. The main emphasis of learned counsel for the petitioners-defendants is that full payment of auctioned land was not made, therefore, under Section 15 of the Colonization of Government Lands (Punjab) Act, the propositus of parties was presumed to be the tenant of such land. I have seen that both the Courts below, in most of their discussion, have focused on the point presuming land in question to be of a tenancy, therefore, they have discussed the matter keeping in view the status of propositus of parties as a tenant, for determination of basic question between the parties. It is not denied that the propositus of parties was successful bidder in open auction for purchase of lot No. 4 consisting of 1800-kanals from the Government of Bahawalpur. The question requires determination that whether the status of land will be a tenancy and the propositus a tenant till his death, admittedly full price of land was not paid, therefore, propositus of parties would be deemed to be a tenant for all purposes; it is not the case of petitioners-defendants that the family of parties was governed by customs in the matters of inheritance and further that in accordance with customs, the females of a family were excluded from the inheritance. Learned counsel for the petitioners has conceded that at the time of death of the father of the parties, they gave full information about all the legal heirs of the deceased to the revenue authority and therefore, the names of plaintiffs-respondents were also given to the revenue hierarchy. In view of these facts, it is not denied that the family of parties was governed by their personal law in the matters of inheritance.
7. In the above circumstances, in my view, so far application of Section 15 of the Colonization of Government Lands (Punjab) Act is concerned. It just relates to a relationship between purchaser and the Government which provides a deeming status. It does not mean that a purchaser till the time of final payment of amount to the Government. Is a tenant for all purposes. For the application of conditions available in the Colony Act, he is deemed to be a tenant. In this eventuality, when his status is deemed to be a tenant against the Government, in my view, he is not actually a tenant. In case in hand, the status of propositus of the parties at the time of death, will not be of a tenant for determination of rights inter se the parties. His status is that of a purchaser.
8. The argument of learned counsel for the petitioners that they made some payments. Which were due to the Government for the transfer of land, it can be safely said that those payments were made from the joint income. It is safely presumable that when the petitioners were in possession of suit land and they were taking benefits of the land, and now it is well-settled law that one of the co- sharer in possession is deemed to be in possession on behalf of all the co-sharer, which is answer to the point of limitation. Furthermore, it is not denied that the petitioners were taking the produce of land and if any payment is made to the Government, that will also be presumed to be made on behalf of all the legal heirs of the propositus. In view of this discussion, this Court is of the considered view that the propositus of parties was purchaser of the suit land at the time of death as most of the instalments were paid in his lifetime and Section 20 of the Colonization of Government Lands (Punjab) Act is not applicable to the facts of this case.
9. There are concurrent findings of facts against the petitioners which cannot be set aside while exercising jurisdiction under Section 115 of the C.P.C. When there is no defect therein.
10. In the light of what has been discussed above, learned counsel for the petitioners failed to point out any illegality or infirmity in the impugned judgments and decrees passed by both the Courts below. Accordingly, the instant civil revision being devoid of any substance is dismissed with no order as to costs.
Civil revision .