' This revision is directed against the judgment and decree, dated 31-5-1980 passed by the Majlis- e-Shoora Kalat Division whereby it has been declared that Mst. Khan Bibi D/o Muhammad Siddiq is entitled to 8/24 share in the property left by her father Muhammad Siddiq.
2. The facts of the case are that Mst. Khan Bibi filed a suit for declaration on 21-6-1975 in the Court of the Assistant Commissioner, Kalat and had alleged that she is the daughter of one Muhammad Siddique who had left property (the list and details thereof was furnished in the schedule attached with the plaint). After the death of her father the plaintiff her sister and widowed mother were married against their will with persons living in Sind and their property was taken over by the petitioners/ defendants and three other persons namely Abdul Rehman, Jangi Khan son of Safar Khan and Ghulam Rasul son of Daulat (the respondents 2 to 4 herein). The last mentioned three persons had been giving the share of the plaintiff while the petitioners have refused. It was therefore prayed that a decree for declaration be passed to the affect that plaintiff is entitled to her share in the property left by her father.
3. Abdul Rehman, Jangi Khan and Ghulam Rasool admitted the claim of the plaintiff and expressed their willingness to give the share of the plaintiff and even agreed to the partition of the land but the petitioners/ defendants in their joint written statements took up the stand that since the suit of the plaintiff had become barred by time. After obtaining the written statement and framing some issues, the Assistant Commissioner referred the suit to Qazi Kalat for decision according to share (As laid down in Dasturul Amal Diwani Kalat enforced in that area). Some issues were added by the Qazi and the suit against the defendants who had conceded the claim was decreed while against the petitioners it was dismissed, having held it has barred by time. The plaintiff filed the appeal before the Majlis-e-Shoora who vide judgment, dated 30-9-1976 remanded the case with some directions and asked the Qazi to decide the suit afresh after taking necessary evidence. The petitioners being dissatisfied with the judgment of the Majlis-e-Shoora filed an appeal in this Court (R. S. A. 8 of 1976) but were unsuccessful. The High Court agreeing with the members of the Majlis- e-Shoora referred the suit to Qazi Sorab who vide his judgment and decree, dated 20-9-19 i9 dismissed the suit. The plaintiff-respondent No, 1 again filed appeal in the Court of the Majlis-e- Shoora against the Qazi's judgment and the appeal was accepted on 31-5-1980 and she has been declared entitled to the share to the extent of eight shares out of twenty-four in the property left by Muhammad Siddique (the father of the plaintiff). Against this Judgment and decree the present revision has been filed in the High Court.
4. The learned counsel for the petitioner has raised the following contentions before me :-
(a) That since the plaintiff was out of possession and she had merely asked for declaration and did not ask for relief of possession the suit was barred by the proviso to section 42 of the Specific Relief Act and made an attempt to show that the plea is impliedly found in para. 3 of the written statement filed by the petitioners.
(b) That no court-fee was paid for the relief of possession.
(c) that the suit was not framed in accordance with law.
5. To appreciate the above contentions raised by the learned counsel it is desirable to reproduce the written statement filed by the petitioners :- {{URDU TEXT}} The objection (c) in para. 4 above does not deserve any serious consideration as no such objection was raised by the petitioners in the written statement. The plea of the adverse possession was not raised in specific form in the written statement, cannot therefore be allowed to be raised in revision nor any weight be given to it.
' The defendants-petitioners did not even say in the written statement that their possession was adverse. All that was said in the written statement was that since the father of the plaintiff has died 50 years ago, the suit was barred by time and was not liable to be entertained. Similar contention was raised before the Supreme Court in Mst. Omai and others v. Hakeem Khan and others (1) in these words :- "Hakeem Khan did not participate in the profit of the property for more than 12 years and the petitioners being in exclusive possession of the property in dispute for more than 12 years must be held to be in its adverse possession."
' The contention was repelled by the Supreme Court and it was observed :- ".Admittedly Hakeem Khan is one of the co-heirs of deceased Amar Din. It has been rightly pointed out by the High Court that it is well-settled that possession of one co-heir is in law the possession
(1) 1970 SCMR 500 of all the co-heirs. Mere non participation in the profit of the property by one co-heir and exclusive possession by the others will not be sufficient to constitute adverse possession."
The Supreme Court reiterated this view in Noor Ahmed's case (1). The initiation of the Supreme Court thus settled the point raised by Mr. Iftakhar Muhammad Khan counsel for the present petitioners. I, therefore, find no difficulty in holding that the assertion of the petitioners that they are in possession for 50 years does not amount to adverse possession. This being the position regarding merits of the plea of adverse possession, the question of limitation as asserted by the petitioner would not arise.
6. Since the possession of one heir is the possession of all and the plaintiff-respondent No, 1 being a co-heir is deemed to be in constructive possession, and her claim was being denied she was not obliged to sue for possession. The suit as framed was maintainable and the fixed court-fee as prescribed by law was correctly paid and there was no deficiency. The objection of the learned counsel for the petitioner in that behalf has an force and is overruled.
' The relationship of the parties as shown in the pedigree table in the judgment of the Majlis-e- Shoora is admitted before me. That being so the share of the plaintiff has been correctly assessed.
7. No other point was raised. The upshot of the above discussion is that the revision petition has no merits and the same is accordingly dismissed with no orders as to costs. The above are the reasons for my short order, dated 11-3-1985 by which I had dismissed the petition.
P.
(1) PLD 1974 SC 78