' Civil Revision No, 242 of 1978 is directed against the judgments and decrees of the Courts of Civil Judge, Peshawar, dated 31st January, 1977 and District Judge, Peshawar, dated 9th May, 1978, vide they concurred in their findings and held that the petitioner had failed to prove acquisition of title to the suit property by the instrument, dated 13th April, 1951 or through adverse possession and as a result dismissed his suit and appeal.
2. Briefly stated, the petitioner brought a suit for declaration that his sister Mst. Pukhraj Begum had transferred her share in the joint estate by an instrument dated 13th April, 1951 and that on her death her share had been wrongly mutated in the names of her 'shari' heirs, the respondents. He alleged that the respondents had brought a suit for partition in the year 1955 but on account of his denial of their title, the revenue Court. Directed them to seek their redress in the civil Court. Later on respondents had brought a suit for rendition of accounts in the revenue Court and again for his denial of their title the revenue Court adjourned the proceedings sine die but wrongly directed him to seek a declaration of his title from the civil Court. He further claimed to have matured his prescript tory title through adverse possession for over a period of 12 years.
3. Respondents had raised preliminary objections of estoppel, limitation and form of the suit and also alleged that their predecessor Mst. Pukhraj Begum had not transferred her share to the petitioner and that the instrument was a forged document based on collusion. They claimed to be the co-sharers and to have rightly brought suits for partition and rendition of accounts in the revenue Courts. They also denied the adverse possession of the petitioner. Hafiz Fida Muhammad was later on transferred the suit land by the heirs of Mst. Pukhraj Begum vide mutation dated 4th November, 1972. He had claimed protection under section 41 of the Transfer of Property Act as being a bona fide purchaser for value from ostensible owners.
4. The trial Court framed issues on limitation, estoppel, protection under section 41 of the Transfer of Property Act and adverse possession but there were not framed specific issues on the acquisition of title by the petitioner on the basis of instrument dated 13th April, 1951 and if the said document was a forged document based on conclusion. Anyhow, there has been brought on record sufficient evidence for and against the issues of facts arising from the pleadings which has been discussed by the Courts below pertinent to the issues.
5. At the outset learned counsel for the respondents strenuously argued that section 115, C. P. C.
Applies only to cases in which no appeal lies or where the Legislature has provided no further appeal and the manifest intention is that the order of the Court below right or wrong shall be final.
He contended that the courts below had concurred in their findings on the issues of fact relating to the acquisition of title by the petitioner under instrument dated 13th April, 1951 or adverse possession and decided both the issues against the petitioner. Further it was also not a case of misreading or non-reading of some weighty evidence. Again the revisional jurisdiction of this Court is not to be exercised even if this court arrives at some different conclusion from the subordinate Courts upon question of fact and even law. In support he referred to PLD 1983 SC 53, in which PLD 1949 P C 26 has been referred with approval. He contended that no interference, whatsoever, was called for in this case in upsetting the concurrent findings of the Courts below on question of fact by re-examination of the evidence in revision by this Court. There is no cavil with the proposition and this Court shall only appraise the evidence to find out lapses of misreading or non-reading of weighty evidence by the Courts below, otherwise revisional jurisdiction will not be exercised.
6. The evidence comprises of the statement of Patwari Halqa (P. W. 1), producing the revenue record in his possession and placing certified copies thereof ; statement of Umar Bakhsh (P. W. 2) producing the original register of his father, a petition-writer, the scribe of the instrument dated 13th April, 1951 ; statement of Rahim Bakhsh (P. W. 3), a marginal witness to the instrument and the statement of Tila Muhammad (P. W. 4), the petitioner himself. On the other side, Haji Fida Muhammad, the contesting respondent had recorded his statement as D. W. 1.
7. There was placed on file a photostat copy of the instrument dated 13th April, 1951 marked Exh. P.
W. 2/1, which is the copy of a private document on an unstamped paper. Infact the original document as a primary evidence was to be placed on file as contemplated by section 64 of the Evidence Act as it is not the document of a nature and character relating which there can be given secondary evidence as provided under section 65 of the Evidence Act. Since the document has been admitted without objection in the Court of first instance and there has also not been taken any objection to its admissibility or otherwise in the first appellate court and even before this court and infect there has been taken suo motu notice of this fact by this Court and that also for the guidance of the subordinate Courts ; hence this document Exh. P.W. 2/1 shall be read in evidence as and bow it is.
8. The English version of the instrument Exh. P. W. 2/1 is reproduced below to facilitate the adjudication of its character and contents :- "I, Mst. Pukhraj Begum daughter of Agha Muhammad wife of Haji Muhammad caste Awan, resident of Mohallah Gandi Verra, Peshawar City at this time with due understanding and full conscience writ and I am sick for the last six months. There is no guarantee of life. Consequently during my lifetime I make this will that after the death of my father, Tila Muhammad son of Agha Muhammad my brother, resident of the same Mohallah has spent Rs, 1,500 on my marriage and Rs, 250 is a mortgage amount of my 1/8th share of the house which my brother Tila Muhammad will pay on my behalf and redeem the house. The entire Rs, 1,750 of my brother Tila Muhammad is payable by me.
If I recover from illness I will pay my brother Tila Muhammad. If God forbid, I die, then my brother Tila Muhammad will spend Rs, 250 on my obsequies from his own pocket. The entire Rs, 2,000 of my brother Tila Muhammad will be a debt against me and one entire two-storey house situated in Gandi Verra, Peshawar City, inherited from my father, bounded as follows : Towards east, house of Abdullah, west house of Gui Muhammad, north house of Sultan Muhammad, south door of the house and street as well as house of Ameer in which I have got 1/8th share. I also own 1/8 share in the inherited agricultural land. Therefore, after my death my brother Tila Muhammad will have a right to sell the 1/8th share of the house and 1/8th share out of the land or to fix market price and keep it himself and adjust his debt of. Rs, 2,000. If something is left, it will be paid to my children. My other heirs and my husband shall have no right or concern with the share of house and the share out of the land. My brother Tila Muhammad shall have full right to sell the two properties.
Consequently, I execute this will with complete understanding and conscience in favour of my brother, Tila Muhammad".
9. The instrument proceeds to state that the executant was sick for the last six months. She made a will acknowledging her indebtedness to the petitioner for the sum of Rs, 1,500 spent by him on her marriage and Rs, 250 to be paid by him at the time of redemption of the house for her share in the house. She promised to pay the amount to the petitioner on her recovery from illness. However, in case of her death, the petitioner was expected to further spend Rs, 250 towards her funeral expenses and thus a total sum of Rs, 2,000 was to accrue as a debt against her and her 1/8th share in the entire two-storey house. She stated also to own 1/8th share in the agricultural land. She was to vest a right in the petitioner to sell her 1/8th share in the house and the land or to fix its market price and keep the same with himself and adjust his debt and to pay the surplus to her children.
Her other heirs and husband were stated not to have any right or concern with her share in the house and the land. The petitioner was to have full right to sell the two properties. Consequently, she executed the will with complete understanding and full conscience.
10. The instrument as read above embodies the contents of acknowledgment of debt, will, transfer deed and a power of authority to sell all in an uncertain language so much so that it cannot be called a will or a transfer deed and it shall also cease to operate as power of authority on her death". At the most it can amount to the acknowledgment of a debt on her part. Hence the finding of fact on the part of the Courts below' relating to the instrument dated 13th April, 1951 as such is exceptionable.
11. As far the adverse possession the learned counsel for the petitioner pleaded that if the instrument dated 13th April, 1951 is held to be an invalid deed under which he has allegedly obtained the possession of the land and has held the same in his own right till today, he shall be as such deemed to have held the suit land in his adverse possession and to have matured title thereto. In support he referred to PLD 1964 SC 220. The facts of the cited case are, however, different as there was executed of unregistered gift deed, an invalid document, and further there had been taken possession by the donee under the deed which he continuously held and thus set up an adverse possession. In the instant case there has not come forth evidence if the petitioner had taken possession of the suit land under the invalid instrument dated April, 1951. Herein the petitioner has been recorded in joint possession with the other co-sharers prior to the execution of the invalid document, at the time of its exception and thereafter till today. It cannot, therefore, be said that the petitioner acquired the possession of the suit property under the invalid instrument.
12. It was next argued that the petitioner had denied the title of the respondents in the partition proceedings brought by them in the year 1955 and this overtact on his part should suffice setting up of adverse possession ever since against them. In support he cited PLD 1951 Lah. 85, a Single Bench authority, without reference to any case law on the point, bolding a view that the denial of title in the course of partition proceedings with respect to agricultural land should amount to the assertion of adverse title. However, the appeal was dismissed as the so called adverse possession was set up by occupancy tenant against an co-occupancy tenant not permissible under section 9 of the Punjab Tenancy Act. On the other hand, a reference was made to a Division Bench authority published in PLD 1952 Lah. 483, which has traced out the history of case law on the point and has held that a simple assertion before the revenue officer in the partition proceedings as the plaintiff having no title in the land and the revenue officer also declining to grant partition without express finding and the possession to continue as before shall not amount to an overt act any kind and the defendant shall not be deemed to have established adverse possession ever since the simple denial of title of the rival co-sharer in the partition proceedings. Instantly, there was a denial of title by the petitioner in the partition proceedings in which the respondents were directed to seek a redress in the civil Court and when later on they brought a suit for rendition of accounts and the petitioner had again denied the title of the respondents, the petitioner was then directed to seek a declaration of his title from the civil Court. It cannot, therefore, be said that the petitioner had matured his prescriptory title against a co-sharer through adverse possession in the circumstances.
13. In the copies of jamabandis right from 1941-42 till last, the estate has been recorded jointly owned and possessed by the heirs of Agha Jan in both the proprietaryship and cultivation columns so much so that there has not been effected any change in the jamabandis of 1951-52, 1956-57 and 1960-61 in which Mst. Pukhraj and on her death her heirs have been duly recorded as joint owners in possession with other co-sharers although the petitioner had claimed to have set up adverse possession under an invalid document dated 13th April, 1951 and later, on by the denial of respondents' title in the partition proceedings in the year 1955. On the death of Agha Jan some time before 1941-42, his estate had devolved on his widow, three sons including the petitioner and two daughters and all the heirs have been recorded as co-sharers in joint possession of the estate.
In case of a joint holding, all the co-sharers shall be deemed to jointly own and possess every inch of the joint estate and a co-sharer cannot') set up an adverse possession against one co-sharer in the joint bolding allowing other co-sharers to retain joint possession of the holding to the extent of their shares.
14. In view of the above, this Court finds that there has been no misreading of evidence or non- reading of some substantial evidence on record by the courts below in arriving at concurrent findings on question of fact. There was not being made out any case for interference in the exercise of revisional jurisdiction. The revision petition is simply incompetent to merit dismissal with costs, Orders accordingly.