One Ahmad Khan, Awan by caste, was owner of the land in dispute situate in village Khabbaki, Tehsil Khushab as described in detail in the headnote of the plaint. The said Ahmad Khan died in the year 1962. Inheritance Mutation No. 6855 (Exh. D/1) was attested on 13-2-1962, in favour of his heirs, viz. Widow, three sons and two daughters. Through this mutation, the aforementioned land left by Ahmad Khan deceased devolved on his heirs in accordance with their shares under Shariat.
The widow thus inherited 4/32 share, three sons jointly inherited 21/32 share and two daughters jointly inherited 7/32 share. On 11-6-1962, a Mutation No. 6881 was attested whereby the shares inherited by the two daughters and the widow of the deceased stood alienated in favour of three sons by way of gift.
2. In March, 1980, the two daughters, namely, Mst. Sharif Khatoon and Mst. Feteh Khatoon, respondents Nos. 1 and 2 herein filed a suit before a learned Civil Judge, Jauharabad, seeking a declaration to the effect that the aforementioned gift mutation was illegal, wrongful, fake and bogus and that they were still owners to the extent of 11/32 share of the suit land. As a consequential relief they asked for perpetual injunction to the effect that the defendants- petitioners should not interfere in their ownership and possession qua the land in dispute. It is noteworthy that in addition to their three brothers, i.e. Sons of Ahmad Khan deceased, they also arrayed Mst. Ghulam Bano their mother, widow of Ahmad Khan as defendant.
3. The suit was vehemently resisted by Fateh Sher and Ata Muhammad petitioners herein. Mst.
Ghulam Bano the widow of Ahmad Khan deceased and mother of the petitioners also supported the petitioners, but Ghulam Muhammad, the third son of Ahmad Khan supported the claim of his sisters and maintained that no gift in fact took place and they still continued to be the co-sharers in the suit land.
4. In the light of the pleadings of the parties they were put to trial on the following issues:-
(1) Whether the suit is time-barred?
(2) Whether the plaintiffs are estopped by their act and conduct to bring their suit?
(3) Whether the suit is hit by section 42 of the Specific Relief Act?
(4) Whether the plaint is under valued?
(5) Whether the suit property has been wrongly described? If so, its effect?
(6) What is the effect of preliminary objection No. 7 of the written statement?
(7) Whether the suit is bad for non-joinder of necessary parties?
(8) Whether the plaintiffs have got no locus standi and cause of action to bring this suit?
(9) Whether the defendants are entitled to special costs?
(10) Whether the defendants Nos. 2 and 3 have perfected their title on the suit land by virtue of adverse possession?
(11) Whether the suit land was gifted by defendant No. 4 and the plaintiffs in favour of the defendants Nos. 1 to 3?
(12) Whether the gift Mutation No. 6881, dated 11-6-1962 is illegal, fictitious and inoperative upon the rights to their extent?
(13) Relief.
5. The petitioners-defendants in order to prove the genuineness of the gift and also their possession to the exclusion of the respondents produced Exh.D.2 copy of Mutation No. 6881, Exh.D.3 copy of Mutation No. 6882, Exh.D.4 copy of Mutation No. 6886, Exh.D.5 copy of Mutation No. 6869, Exh.D.6 copy of Mutation No. 6879, Exh.D.7 copy of Mutation No. 7375, Exh. D.8 copy of Mutation No. 7127, Exh.D.9 copy of Mutation No. 7135, Exh.D.10 copies of Parchas Khatauni, EXh.D.11 and Exh.D.12 copies of Khasra Girdawari entries.
In addition to the documentary evidence, the petitioners-- defendants examined D.W.1 Ataullah Patwari, D.W.2 Ali Muhammad and D.W.3 Sher Baz while Ata Muhammad defendant himself came into the witness-box as D.W.4.
6. On behalf of the contesting respondents Mst. Sharif Khatoon respondent herself appeared as P.W.1.
7. The learned trial Court, vide its judgment and decree, dated 6-1-1982 found that the defendants- petitioners failed to prove the genuineness of the gift mutation and that in fact their possession till sometime prior to the filing of the suit remained only as co-sharers over the land in dispute and thus the suit of the respondents was within time. Consequently the respondents' suit was decreed.
8. The petitioners-defendants preferred an appeal before the learned District Judge, Khushab, but their appeal failed and was dismissed with costs on.21-9-1983.
9. The aforementioned judgments and decrees passed by the learned trial Court and the learned District Judge have been called in question through the present civil revision.
10. It has been contended on behalf of the petitioners in the first instance that gift mutation in their favour was sanctioned in the year 1962 but the same was challenged through the declaratory suit by the respondents in the year 1980. The suit of the respondents, therefore, was clearly time-barred as under Article 120 of the Limitation Act prescribed period of limitation was only six years.
It has been next urged by the learned counsel for the petitioners that they have produced sufficient oral as well as documentary evidence to establish the genuineness of the gift and the fact that since after the gift they continued to be in exclusive possession of the land in dispute. They have mortgaged a part of it and that since after the gift the respondents had nothing to do with the suit land. It has also been pleaded on their behalf that the evidence, oral as well as documentary, produced by the petitioners about the genuineness of the gift and about their possession as owners thereafter has not been successfully rebutted. Only one of the respondents, namely Mst.
Sharif Khatoon appeared as P.W.1 to say that no gift was effected or that they continued to be in joint possession of the suit land with the petitioners.
11. It is true that ordinarily a simple suit for declaration for purpose of limitation is governed by Article 120, under which six years period of limitation has been provided for such a suit from the date of the accrual of the cause of action. In Qutab-ud-Din v. Muhammad Siddique and others PLD 1969 Lah. 418, it has been held that where declaration of title is sought in respect of immovable property without any further relief, it will be governed by Article 120 which provides a period of six years from the date of accrual of cause of action or the right to sue. In Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 it was held that after the efflux of the period prescribed by the Limitation Act, the right of the owner in that property is extinguished. In Haji Ghulam Rasul and others v. The Chief' Administrator of Auqaf, West Pakistan PLD 1971 SC 376, it was ruled that entries in the mutation registers were by themselves not conclusive evidence of the facts which they purport to record but they are, nevertheless, not an unimportant part of the testimony as to a fact which was available. The weight and importance to be attached to them is in no way diminished by the fact that they have been allowed by them who were going to be adversely affected by them to remain unaltered for a large number of years, even though they were aware of the entries in the records.
12. The legal propositions laid down in the aforementioned judicial precedents are very well- recognised and there can be no dispute about it. It has, however, to be seen as to whether in fact the right to sue or the cause of action accrued to the plaintiffs-respondents in 1962 when the mutation of gift was attested and that if on the basis of such mutation the petitioners-defendants have been in exclusive possession of the suit land for a period of exceeding six years. These are obviously questions of fact and on these questions the two Courts below whose competency in the matter has not been questioned have recorded concurrent findings to the effect that genuineness of the gift mutation was not proved and that the possession of the petitioners-defendants over the suit land was that of co-sharers or co-heirs of a common ancestor and that till some time before the filing of the suit they have been paying share in the produce to the respondents. These findings of fact in the absence of illegality or material irregularity cannot be interfered with by this Court-in exercise of its revisional jurisdiction under section 115, C.P.C.
It has been urged on behalf of the petitioners that the findings suffer from material irregularity inasmuch as the learned lower Courts have failed to consider the overwhelming documentary as well as oral evidence brought on the records by the petitioners and have given preference to the solitary statement of one of the respondent herself.
On the face of it this plea appears to be weighty but when analysed in depth it transpires that direct and the best evidence which was required to be produced by the petitioners to prove the factum of gift has not been produced by them. They. Have failed to produce the revenue officer who attested the gift mutation and who could say that in his presence the respondents subscribed to the gift. They have also) failed to produce Sarbrah Lambardar namely Mian Khan who allegedly identified the donors i.e. The resondents before the Revenue Officer at the time of attestation of the mutation. The said Sarbarah Lambardar is admittedly living and there is nothing on the records to suggest that he was in any manner inimically disposed towards the petitioners or there was any other justifiable circumstance for his non-production. To prove the genuineness of the gift, the petitioners have examined their relatives, namely, Ali Muhammad and Sherbaz. It has been admitted by these two witnesses during their cross-examination that their relations with the respondents were strained. One of them claims that he was also present at the time of attestation of mutation, as a mutation concerning him was also attested on the same day, but the testimonies of these two interested witnesses cannot make up the deficiency caused on account of the non- production of the revenue officer and the Lambardar who allegedly identified the respondents at the time of attestation of the mutation. Ataullah Patwari has of course stated that he entered the mutation in question and put up the same for attestation before the revenue officer but he admitted that the respondents-donors were not personally known to him and that even the persons who identified these donors were not known to him. He did not remember the names of the persons who accompanied the donors when the gift mutation was entered. We cannot also lost sight of the fact that the donors in this case are illiterate peasant women. They are sisters of the donees and are thus so related to them. In the case of a gift allegedly made by them strictest proof of the factum of gift has to be insisted upon. The petitioners unfortunately have not been able to lead evidence of that standard.
13. In the light of the above observations it cannot justifiably be said that the findings of fact on the question of genuineness of gift and of the exclusive long possession of the petitioners over the suit land suffer from any illegality or material irregularity. Admittedly the petitioners as also the respondents are co-heirs. Possession of one heir is deemed in law as on behalf of the other co- heirs. A co-sharer or a tenant cannot claim adverse possession so long he remains a co-sharer or a tenant, as the case may be. It is so well-recognised a principle that once a tenant is always tenant and once a co-sharer is always a co-sharer. Ghulam Muhammad, one of the donees and a real brother of the petitioners herein has supported the claim of the respondents. He has filed written statement whereby he admitted the claim of the respondents. According to his written statement till sometime before the institution of the suit by the respondents, the petitioners as also Ghulam Muhammad used to pay share of produce to their sisters i.e. The respondents. In Mst. Omai and others v. Hakeem Khan and others 1970 SCMR 499, it was observed: "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 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."
Similarly in Ahmadullah Khan and others v. Fazal Bibi and others 1970 SCMR 604, it was ruled that possession of one co-sharer is possession of all co-sharers unless it is established that a particular co-sharer has been ousted from possession or denied a share in the property concerned by some definite act of ouster. In Shamsur Rehman v. Mst. Sher Bano and others 1974 SCMR 427, it was held that when the initial possession of the parties was referable to their lawful title as co-sharers, the possession of one of the parties could not be regarded as adverse merely because they failed to pay rent to the other party. In Fatahuddin v. Zarshad and another 1973 SCMR 248, it was observed: "This contention is, however, without any substance, as under 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 discovery of the fraud which was specifically alleged to be in 1969. This evidence remained unrebutted and, therefore, the suit instituted on the 26th February, 1970, was rightly held to be well within time both by the Additional District Judge, Mardan in first appeal and the High Court in second appeal." In Ahmad Yar v. Hassan Ali Shah and 14 others 1984 CLC 3413 (Kar.), it was held that a title in immovable property could not be created only by simple mutation or entry in the record of rights. The question whether the entries in the record of rights itself had been made in accordance with law depended upon a valid transaction. If the entry had been effected on the basis of a forged transaction it could be presumed to be a proof of ownership of the record-holder and the forum to prove the basis of the entry was civil Court and not the revenue Court. It was thus, concluded that the presumption which attaches to an entry in record of the rights is rebuttable.
14. Mst. Sharif Khatoon while appearing as P.W.1 has testified that the petitioners stopped to pay the share of produce to them in 1979 and thereafter they verified from the revenue authorities and learnt about the gift mutation. Ghulam Muhammad, brother of the petitioners has also conceded this claim of the respondents in his written statement. In the light of the circumstances of this case when appreciated with reference to the principles enunciated in the aforementioned judicial precedents, it can be safely concluded that parties being admittedly co-heirs, the suit filed by the respondents in 1980, challenging the mutation of gift which took place in 1962 cannot be treated as barred I by time, as according to the concurrent findings of fact recorded by the two Courts below in regard to which no interference is called for, it stands established that the gift was not genuine and the respondents learnt about the gift only sometime before the institution of the suit.
15. In the light of the above conclusions there is no force in this revision, so far as the findings recorded by the Courts below are concerned. It has, however, been noticed that Mst. Ghulam Bano the mother of the petitioners, has not joined her daughters in their suit. She has supported the gift but the learned Courts below have decreed the suit of Mst. Sharif Khatoon and Mst. Fateh Khatoon including the share of Mst. Ghulam Bano. Legally the Courts below could not do so. The declaratory suit of Mst. Sharif Khatoon and Mst. Fateh Khatoon respondents deserves to be decreed only to the extent of 7/32 instead of 11/32 share of the land in dispute. In this view of the matter, the revision is allowed only to this extent that the declaratory suit filed by Mst. Sharif Khatoon and Mst. Fateh Khatoon respondents stands decreed against the petitioners and Ghulam Muhammad who has already admitted the claim of the respondents Mst. Sharif Khatoon and Mst. Fateh Khatoon to the extent of 7/32 share of the land in dispute left by Ahmad Khan deceased. The parties are left to bear their own costs throughout.