1. ' NASIM HASAN SHAH, J.-The parties, apparently, were governed by agricultural custom in the matter of succession. Accordingly, on the death of Rakhu, the last male holder, in 1939, half of the land was mutated in the name of his son Ranjha, while the other half was mutated in the name of the petitioner, Mst. Waziran, and his sister Mst. Amiran in the year 1939. After the marriage of Mst.
2. Amiran in 1943 per share was also mutated in the name of the petitioner. The petitioner, it may be mentioned, is the pre-deceased son's daughter of the last male holder and the respondent, as mentioned above already, is the son of the deceased Rakhu.
3. ' The respondent, on 9-1-1963, filed a suit for declaration that he was the owner in possession of the land , mentioned in the plaint comprising 248 Kanals and 4 Marlas with the rights of Shamilat deh of village Retari and also sought, as a consequential relief, perpetual injunction to restrain the defendant-petitioner from disturbing the possession of the plaintiff-respondent. The suit was contested by the petitioner and the learned Civil Judge framed five issues, of which Issues Nos. 4 and 5 read as follows :-
(4) Whether the defendant has been in adverse possession of the land in suit for a period of twelve years ?
(5) Whether the suit is within time ?
4. ' The learned trial Court found Issue No, 5 in favour of the petitioner, namely, that the suit was barred by time and, accordingly, dismissed the suit of the respondent vide his judgment and decree, dated 9-1-1964.
5. ' Aggrieved by the above judgment and decree of the learned trial Court, the respondent filed an appeal before the District Judge, Mianwali. The learned District Judge, framed for additional issues, namely, Issues Nos. 6, 7, 8 and 9 referred them for report and adjudication to the trial Court. Out of these issues, issue No, 7 was to the effect :-
(7) Was Rakhu governed by custom in matters of succession ? If so, with what effect? O.P.P.
6. ' The learned trial Judge found on this issue that Rakhu was, indeed, governed by the agricultural custom of the Punjab. The learned District Judge, however, after the matter was taken up by him again held that the finding`that Rakhu was governed by custom in matters of succession was not correct. He, therefore, reversed the said finding. However, he upheld the finding of the learned trial Court that the suit was barred by time. He, therefore, confirmed its finding on Issue No, 5.
7. Furthermore, he also held Issue No, 4 in favour of the defendant-petitioner finding that the defendant having remained in possession for more than 12 years, her title stood perfected. He, accordingly, set aside the finding of the trial Court on Issue No,
4. In view of these findings, the appeal of the respondent was dismissed.
8. ' Aggrieved, the respondent filed a second appeal in the Lahore High Court, which was heard by a learned Single Judge of the said Court. The learned Single Judge, in his judgment, has observed :- "Two questions arise for consideration in this appeal. The first is whether the family of Rakhu was governed by agricultural custom in the matter of succession and the second is whether the suit of the appellant was barred by time ?"
9. ' As to the first question he was of the opinion that the conclusion of the learned District Judge that the parties were not governed by the agricultural custom was not correct and, accordingly, reversed the finding of the learned District Judge on the said question. With regard to the second question he came to the conclusion that the question of limitation did not arise. He, therefore, held "that the Courts below were in error when they held the suit of the appellant was hit by the bar of limitation".
10. ' After answering the two questions posed by him in the above terms, the learned Judge observed "that since the share in the land in dispute was mutated in the name of the respondent by way of maintenance till her marriage she lost her rights therein when she got married. This being so she could not resist the suit of the appellant for a declaration that he was the owner of the land in dispute." The appeal filed by the respondent was, accordingly, allowed. Hence this petition for leave to appeal.
11. Malik Talib Hussain, learned counsel for the petitioner pointed out that the learned District Judge had not only decided the issue with regard to the limitation in favour of the petitioner but also decided the issue regarding question covered by Issue No, 4 viz. The question of adverse possession in favour of the petitioner. However, the learned Judge, while reversing the judgment of the learned District Judge has not adverted to this question at all. The finding on this issue not having been set aside by the learned Judge, the appeal filed by the respondent hereinbefore the High Court could not be accepted, it is contended.
12. ' There is prima facie force in this contention.' We would, accordingly, grant leave to appeal.
13. ' Security in the sum of Rs, 1,000.
14. ' The appeal shall be made ready on the present record, with liberty to the parties to add further documents, if any and shall be put up for hearing as early as possible.