' This Regular Second Appeal is directed against the judgments and decrees, dated 15th February, 1978 and 4th April, 1978 passed respectively by the learned Civil Judge, Nankana Sahib, and the learned Additional District Judge, Sheikhupura.
2. One Allu son of Mamoora was the last male owner of agricultural land measuring 122 Kanals 3 Marlas being 1/2 share of 244 Kanals 6 Marlas of the land as described in detail in paragraph 1 of the plaint situate at village Bara Ghar, Tehsil Nankana Sahib, District Sheikhupura. The said Allu died on 22nd April, 1939 and the land left by him was mutated in the names of his two daughters, namely Mst. Rani deceased and Mst. Daulan defendant/appellant No, 1 vide Mutation No, 195, dated 14th February, 1942. Subsequently, the said Mst. Rani died issueless and her husband also died. Mst.
Daulan defendant/appellant No, 1 also contracted marriage with Imam Ali defendant/appellant No,
2. The respondents who were children of two sisters Mst. Jadan and Rehmai of Allu, the last male holder, and who were admittedly alive at the time of death of Allu were also co-sharers in the joint `Khata' with Allu and after his death with Mst. Daulan.
3. On 31st March, 1962, Mst. Daulan, defendant/appellant No, 1 mutated the entire land left by Allu deceased which was being held by her as limited female holder, in favour of her husband Imam Ali, defendant/ appellant No, 2, through Mutation No, 384 by way of sale. On 18th October, 1975, the respondents, the heirs of Mst. Jadan and Mst. Rehmai the two sisters of Allu deceased filed a declaratory suit before the learned Civil Judge, Nankana Sahib, seeking a declaration to the effect that they were owners in possession to the extent of 61 Kanals and 1-1/2 Marlas of the suit land being 1/4th share of the entire `Khata' measuring 244 Kanals 6 Marlas and that the sale Mutation No, 384, dated 31st March, 1962 by appellant No, 1 in favour of appellant No, 2 was wrongful, illegal, fraudulent, void and ineffective qua their rights. It was alleged by the respondents that after the termination of the limited interest of Mst. Daulan appellant No, 1, they used to be paid their share in the land by Imam Ali, the husband of Mst. Daulan, according to their entitlement. He stopped paying rent only a month before the institution of the suit when they approached him for payment of rent for Kharif 1975. Thereafter on enquiry, it transpired that Mst. Daulan had deceitfully mutated the land in favour of her husband Imam Ali on 31st March, 1962, vide sale Mutation No, 384. This fact was not brought to the knowledge of the respondents till Kharif 1975. It was also pleaded by the respondents in their suit that Mst. Daulan being limited female holder could not transfer the suit land by way of sale or otherwise in favour of her husband or any body else.
4. The respondents' suit was resisted by the appellants who inter alia pleaded that the suit was barred by time and that since the respondents/plaintiffs were out of possession of the suit land, their declaratory suit was not legally competent. Necessary issues arising out of the parties' pleadings were framed. The respondents examined P. W.-1 Bashir Ahmad Inspection Muharrar of the office of Sadar Kanungo Sheikupura, P. W.-2 Naib Khan Office Kanungo Nankana Sahib, P. W.-3 Munshi Abbas Khan Patwari Halqa Bara Ghar, P. W.-4 All Muhammad and P. W.-5 Muhabbat Ali.
Documentary evidence, viz. Application Exh. P. 1, copy of Mutation Exh. P. 2, copy of Jamabandi Exh.
P. 3, copy of Mutation No, 147 Exh. P. 4, copy of Exh. Mutation No, 195 Exh. P. 5 and copy of Khasra Girdawari entries Exh. P. 6, was also adduced before the trial Court by the respondents. The appellants were allowed many adjournments, originally without payment of costs and subsequently on payment of costs for the production of their evidence. They, however, failed to avail of these opportunities and ultimately their evidence was closed on 15th February, 1978 and on the same date the suit of the plaintiffs/respondents was decreed by the learned trial Court. The defendants/appellants, feeling aggrieved, preferred an appeal which too failed and was dismissed by a learned Additional District Judge Sheikhupura on 4th April, 1978. Hence the present Regular Second Appeal.
5. While admitting this appeal it was observed vide this Court's order, dated 17th April, 1978 : "The only questions that require consideration in this case are the questions of limitation and maintainability of the suit under section 42, Specific Relief Act."
6. Regarding the question of limitation, it has been urged on behalf of the appellants that through the declaratory suit culminating into the impugned judgments and decrees, the respondents had inter alia sought declaration to the effect that sale Mutation No, 384, dated 31st March, 1962 was illegal, void and ineffective qua their rights as the same was fraudulent and legally incompetent, It is further contended that competency/validity of the mutation in question is solely challenged on the ground that Mst. Daulan, the alienor was a limited female holderunder Custom and, therefore, could not alienate the land thus held by her, and that such a suit, by virtue of the provisions of the Schedule to the Punjab Limitation (Custom) Act, 1920, could be filed within three years of the alienation in question but the respondents filed the suit challenging the alienation by Mst. Daulan in favour of Imam Ali about 13 years after it took place. The suit was, therefore, clearly barred by time.
It has been argued that since the sale mutation in question took place on 31st March, 1962 and the Punjab Limitation (Custom) Act, 1920 was repealed subsequently by West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, which was promulgated on 31st December, 1962, therefore, the limitation for filing a declaratory suit challenging the validity of mutation under Custom was governed by the provisions of the Punjab Limitation (Custom) Act, 1920, as the same held the field at the time the mutation in question took place. In support of this argument, reliance has been placed on Mst. Fattan Bi and 2 others v. Fateh Muhammad and 6 others (I). In this case, it was held that the limitation allowed by the Punjab Limitation (Custom) Act, 1920 (Act I of 1920), is applicable to a suit whereby alienation of land is challenged on the ground of being opposed to Custom. It is, however, noteworthy that in this very case it was further held that a matter is to be decided in accordance with law of limitation as in force at the time of institution of that matter and not according to law prevailing at the time when cause of action arose. But this principle will apply where the right to institute that proceeding had not become barred on the date when the amended Act was in force. The principle of law, therefore, is that where a plaintiff or petitioner has lost his right to institute proceeding on the date when some other Act comes into force that right is not revived by the repeal of the Statute under which the limitation for those proceedings has expired. In the circumstances of the under consideration case, the sale mutation in question took place, on 31st March, 1962. Period of limitation provided under Act I of 1920 to challenge this mutation under Custom was to expire on 30th March, 1965, but long before that i. e. On 31st December, 1962 Act I of 1920 was repealed by West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962 (Act V of 1962). In these circumstances, the period of limitation in the under consideration case is not governed by Act I of 1920. In this view of the matter, for purpose of limitation, the suit giving rise to the impugned judgments and decrees is governed by the Limitation Act. Article 120 provides six years as the period of limitation for such suits. It has been pleaded on behalf of the appellants that even under Article 120 of the Limitation Act, the suit should have been filed within six years of the date of attestation of the sale mutation in question and not thereafter. This argument is repelled on behalf of the respondents by pleading that they came to know about the mutation for the first time only a month before the institution of this suit when appellant No, 2 refused to pay rent to them while previously they used to receive the rent according to their share. There is a concurrent finding of fact by both the learned Courts below to the effect that the parties were jointly owners of the suit land and the respondents learnt about the mutation in question only a month before the institution of the suit when Imam Ali appellant refused to pay rent to them. In Fatahuddin v. Zarshad and another (2) it was held by the Supreme Court of Pakistan. "Under
(1) PLD 1974 Lah. 458 (2) 1973 SCMR 248 Article 120 of the Limitation Act, the time begins to run from the date the right to sue accrues and in this case the right to sue accrued from the date of the discovery of fraud which was specifically alleged to be in 1969. This evidence remained unrebutted and, therefore, the suit instituted on 26th February, 1970, was rightly held to be well within time both by the learned District Judge Mardan, in first appeal and the High Court in second appeal." In the present case also, as observed earlier, it has been alleged by the respondents that the defendants/appellants fraudulently without the knowledge of the respondents got attested the sale mutation in question and they learnt about this mutation for the first time a month before the institution of this suit. Thus, the period of limitation under Article 120 of the Limitation Act would commence from the date of knowledge of the respondents. The suit, therefore, cannot be held to be barred by limitation. It is a common ground between the parties that the respondents are co-sharers of the entire `Khata' alongwith Mst. Daulan appellant No,
1. Her husband Imam Ali appellant No, 2 was originally in occupation of the suit land as on her behalf. Thus, possession of the appellants originally was as that of co- sharers over the suit land vis-a-vis the respondents. It was only a month prior to the institution of the suit that Imam Ali claimed ownership on the basis of the sale mutation in question and the respondents thus filed the declaratory suit. It is an established proposition of law that possession by one co-sharer on joint land is to be deemed to be on C behalf of other co-sharers. In Dr. Hasan Ara and 6 others v. Mian Tajammul Hussain and 12 others (1) it was held by this Court that ordinarily no limitation was applicable amongst the co-sharers although one of them was found out of possession. Between the co-sharers, therefore the question of limitation requires proper evidence after framing an issue and allowing the parties to lead evidence. In Shams-ur-Rehman v. Mst.
Shehr Bano and others (2) it was held that initial possession of an appellant as co-sharer cannot be regarded an adverse merely for nonpayment of rent to a co-sharer until express repudiation of such co-sharers' title is made. Similarly, in Noor Ahmad v. Hubab Jan and 9 others (3) it was found that the possession of one co-heir in law is possession of all the co-heirs and that mere non- participation in the profits of the property by one co-heir and exclusive possession by others will not be sufficient to constitute adverse possession.
' In the light of the above discussion, it is concluded that the respondents' suit cannot be regarded as barred by limitation.
7. As regards the maintainability of the respondents' suit in declaratory form, it may be observed that proviso to section 42 of the Specific Relief Act, under which a declaratory suit is barred, is applicable only if a further relief for possession is available to a plaintiff and he fails to ask for that relief in the suit. In the circumstances of the present case, as already held, the respondents/plaintiffs were in joint possession of the suit land alongwith the appellants as co- sharers. The possession of Imam Ali on behalf of his wife on the land in dispute is to be deemed as that of co-sharer vis-a-vis the respondents. In such circumstances, it cannot be said by any stretch of imagination that the further relief of possession was available to the respondents but they failed to
(1) 1982 CLC 653 (2) 1974 SC MR 427
(3) PLD 1974 SC 78 ask for the same in their suit. It is, therefore, held that the respondents' suit in the declaratory form was competent because as a result of concurrent finding of fact recorded by the Courts below, they were found to be in joint possession of the suit land as co-sharers.
8. In the light of the above conclusions, there is no force in this appeal and the same is, therefore, dismissed with costs.