1. ' Ajab Din petitioner hearin brought suit for possession of the suit house by partition. He alleged that the suit house was owned by Musnahidin was the predecessor of the parties. After the death of Mushadidin in 1922, the petitioner sold 4 marlas and the remaining 7 marlas in the suit house is still due to him as his share. 1 he respondent contested the suit. The learned trial Judge framed issues and recorded evidence of the parties. On examination of the evidence, he found that the suit house belonged to the common ancestor of the parties and as it had not been partitioned, it is liable to be partitioned between the parties. He further found that the petitioner's share in the suit house comes to 11 marlas but he sold 4 marlas out of his share, therefore, he is entitled to 7 marlas in the suit house. He did not agree that Shari law is applicable in this case. He, accordingly granted a preliminary decree in favour of the petitioner, vide his judgment, dated 16-1-1978. The respondent was aggrieved by this judgment, therefore, he filed appeal in the District Court and a learned Additional District Judge who heard the appeal accepted the same on ground that the suit of the petitioner is barred by limitation, vide his judgment dated 28-5-1979. Hence this revision application.
2. I have heard the learned counsel for the parties and perused the record. It is clear that the learned trial Judge had granted decree in favour of the petitioner without adverting to the legal position, as regards limitation, in a case of this nature. Mushahidin, the predecessor of the parties died in 1922 and according to the record, the petitioner never remained in possession of any part of the suit house. It is conceded that in every civil matter the question of limitation can be raised. The learned counsel for the petitioner has, however, contended that as the suit house belonged to the predecessor of the parties and as after his death it was not partitioned, the parties become co- B sharers in the same and unless it is partitioned, every co-sharer has the right to claim his share.
3. This contention would have been available to the learned counsel for the petitioner if his client had been in possession of the suit house or the suit property was such not capable of possession and was lying idle and barren all along. This is not the position in the present case. The parties are governed by the Shariat Act and even though Mushahidin, the common predecessor of the e parties, died before the enforcement of the said Act, yet the petitioner cannot claim application of customary law in this case, as N.-W. F. P. Muslim Personal Law (Shariat) Application Act (VI of 1935) is respective in effect. A somewhat similar case also came up before this Court in a case reported in PLD 1961 Pesh. 9 and it was held as under :- "If the Law of Limitation prohibited the entertainment of claims after 12 years of the accrual of the right upon death the claims will cease to be entertainabie. The Customary Law heirs who succeeded as heirs and remained in enjoyment of the estate for over 12 years will be held to have matured their irrevocable title to the deceased's estate by prescription."
4. ' The learned counsel for the respondent also pointed out that all the legal heirs of Mushahidin have not been impleaded as parties in this case and his some legal heirs also sold their shares to strangers. His submission, therefore, is that on this score also, the suit of the petitioner is legally defective. I do not feel called upon to attend to this submission of the learned counsel for the respondent as the suit of the petitioner is barred by limitation. It is not disputed that the common predecessor of the parties died in 1922 and as thereafter, according to the evidence on record, the petitioner never remained in possession of any part of the suit house, the present suit having been brought by him long after the period of 12 years, it is patently hit by limitation. Even otherwise, the petitioner had no case on merit. He was unable to show by any evidence worth-the-name that the respondent was in possession of the suit house with his (petitioner's) permission. There is, therefore, no escape from this conclusion that the petitioner had acquiesced in the ownership of the respondent qua the suit house and as the respondent is in possession of the suit for decades and his possession was never questioned, the petitioner cannot now be allowed to claim any share in the suit house.
5. ' As a result, this revision application is dismissed with no order as to costs.