' One Fateh Khan was owner of the land in dispute. He mortgaged 1,954 kanals 1 marla of land through a registered sale-deed dated 21st March, 1923 (Exh. D. 8) in favour of Muhammad Ashraf, a son of his sister, for a period of 40 years, for consideration of Rs, 1,500. After the death of Fateh Khan a mutation was attested on the 18th May, 1926 in favour of his mother Mst. Malkan (Exh. P. 24) who had obtained the property under custom on a life tenure. On the 12th September, 1933, Mst. Malkan sold an area of 1954 kanals to Naza respondent No, 2 for a sum of Rs, 2,471. A mutation of this sale was sanctioned on the 7th February, 1934 vide copy of mutation Exh. P.
26. This sale was challenged under custom by a suit filed by Amir Khan and Jehan Khan on the 12th December, 1935. The sale was held to be fictitious by a judgment dated 27th May, 1937.
Consequently the suit was decreed. The District Judge, however, set aside this decree and dismissed the suit on the ground that Jehan Khan and Amir Khan were not collaterals of Fateh Khan. The High Court dismissed the second appeal on the 4th February, 1937 vide judgment Exh. P.
18.
2. Mst. Malkan died on 26th August, 1936 vide death entry Exh. D.
9. On her death mutation of the remaining land totalling 191 kanals 16 marlas which was not under mortgage and was not sold, was effected in favour of her three daughters, namely, Mehro, Bakhtan (mother of respondents 1 and 2) and Mst. Mundan. This mutation was challenged by the two plaintiffs in the earlier suit but without success. In 1945 Mst. Bakhtan died. On her death respondents 1 and 2 succeeded her share. On the 10th July, 1947, mutation No, 842 (Exh. P. 27) was effected by which Naza respondent No, 2 acknowledged the ownership of respondent No, 1 Muhammad Ashraf to the extent of one half of the land mortgaged in his favour by Fateh Khan. In consideration thereof the rest of the property was redeemed by mutation No, 841 (Exh. P. 29) dated the 12th October, 1947.
On the 26th November, 1950 Mst. Mehro also died and plaintiffs-appellants Nos. 1 and 2 succeeded her.
3. The three appellants filed a suit for possession of 2/3rd of the total mortgaged land on 23rd December, 1952 against Muhammad Ashraf, Naza and one subsequent purchaser, namely, Walayat Ali Shah, respondents Nos. 1 to 3, on the ground that the mortgage had been effected by Fateh Khan only as a concession to Muhammad Ashraf and it was for this reason that without obtaining the mortgage money, Muhammad Ashraf had redeemed it.
4. Respondents Nos. 1 to 3 contested the suit claiming that the land having been sold by Mst.
Malkan to Naza the appellants could not recover its possession by ignoring the sale. Reference was made to the provisions of Punjab Act I of 1920 and it was pleaded that the suit was barred by limitation. Certain other pleas were also taken. The learned trial Court framed the following issues :
(1) Whether the suit land had been purchased by Naza defendant No, 2 from Mst. Malkan, mother of Fateh Khan, its last male holder ? O.P.D.
(2) If so, could the plaintiffs sue to recover its possession, as heirs of Fateh Khan, by ignoring the sale ? O.P.P.
(3) If the sale could not be ignored, can the plaintiffs now plead (in view of section 7 and Article 2 of Punjab Act I of 1920) that the sale was without consideration and vaild necessity ?O.P.P.
(4) If issue No, 3 be decided in favour of the plaintiffs, whether the sale took place for consideration and valid necessity ? O.P.D.
(5) Whether the suit for possession simpliciter as heirs of Fateh Khan is within time ? O.P.P.
(6) Whether the land detailed in para. (F) of the written statement, additional pleas, had belonged to Mst. Malkan or had been obtained by the defendants in lieu of land belonging to Mst. Malkan ?
O.P.P.
(7) If issue No, 5 is proved whether plaintiffs are not entitled to their share in its ? O. P.D.
(8) Whether plaintiffs are entitled to a decree for possession without paying Rs, 1,000 their share of the mortgage debt ? O.P.P.
(9) Whether the suit is barred by waiver or estoppel ? O.P.D.
(10) Relief.
' The learned trial Court held on the issue of limitation that a suit for possession could be filed by the plaintiffs without having sought to file a suit for declaration under custom. The sale was held to be without legal necessity and consideration. It was further held that the suit was not barred by waiver or estoppel. On the first issue it was held that only a part of the land in dispute had been purchased by Naza from Msr. Malkan. The suit was, therefore, decreed on the 26th March, 1956.
The learned District Judge held in appeal that the suit for possession could not have been filed without the plaintiffs having sought a declaration about the validity of the sale. He held that the suit for possession ignoring the sale was not competent in view of the provisions of Punjab Act 1 of 1920.
He also held the sale to be for legal necessity and consideration.
5. The only point urged before me by the learned counsel for the appellant is that the suit was competent and was filed within limitation in view of AIR 1924 P.C.
137.
6. In the Privy Council case the plaintiff was a cousin to the former owner of the suit property who married with one 'M'. The plaintiff averred that after the death of the owner, 'M' had adopted her daughter's son and that 'N' married He died in 1895. Upon his death '13' took the Hindu woman's estate and died in 1903. Upon her death the plaintiff brought a suit for possession on 1st July, 1912 brushing aside the adoption. It was held that the adoption being void the plaintiff was entitled to brush it aside and sue for possession within 12 years from the death of the widow. This case is, however, distinguishable since it does not take into consideration the provisions of section 7 of Act I of 1920 according to which a suit for possession after the termination of the life interest was not competent if within six years from the date of the transfer no suit for declaration was filed by the reversioners to challenge the effectiveness of the transfer after the death of the limited owner. In Mst. Nishan Bibi and 26 others v. Fateh Muhammad and others it was argued that after the repeal of Act I of 1920 a suit for possession simpliciter by a collateral in the above circumstances was governed by Article 141 of the Limitation Act.
It was held that by the repeal of Act I of 1920 it could not be said that Article 141 was revived even in regard to cases which were barred by limitation under the repealed Act. I, therefore, agree with the judgment of the learned Distict Judge.
7. The finding about the sale being for necessity and consideration was not challenged before me.
Moreover, it is a finding of fact. Even if it is possible to hold that the suit of the plaintiff is governed by Article 141 of the Limitation Act, the decree has to be sustained on the above finding.
8. I find no merit in this appeal and dismiss it with costs. PLD 1974 Lah. 458