1. SALAHUDDIN AHMED, J.-This appeal by special leave is from the order of a learned Single Judge of the then High Court of West Pakistan, Lahore, allowing the appeal of respondent No. I.
2. The appellants and respondent No. 2, Mst. Gulab Khatoon had brought a suit in the Court of the Civil Judge, Chakwal for possession of certain lands and a house in their 2/3rd share by partition.
3. The properties were originally held by Nur Khan in exercise of his right of occupancy in the lands. He died on the 28th January 1949, leaving behind four daughters, namely, Mst. Gulab Khatoon, Mst.
4. Musahib, Mst. Karam Khatoon and Mst. Begum Nur. Madad was a collateral of Nur Khan and he had left two daughters, Mst. Chhati and Mst. Fattan. The suit was brought two daughters, Mst. Gulab Khatoon, and Mst. Musahib Khatoon, daughters of Nur Khan, in conjunction with the aforesaid Mst.
5. Chhati and Mst. Fattan. The remaining two daughters, Mst. Karam Khatoon and Mst. Begum Nur, were defendants Nos. 1 and 2, respectively, in the suit. Respondent No. 1 (defendant No. 2) alone contested the suit and she raisedno dispute with regard to the house in dispute .But asserted her own occupancy right in the suit land on the basis of depositing Zar-e-Malikana. In addition she claimed to have acquired title to the suit land by adverse possession.
6. The trial Court passed the preliminary decree for partition in respect of the house but dismissed the suit as regards the land in dispute on the ground that in view of the provisions of sec--petition 59 of the Punjab Tenancy Act, as they were in force at the time of death, of Nur Khan in January 1949, the land did not devolve either on the plaintiffs or on the defendants, and, therefore, the right of occupancy, of Nur Khan deceased was extinguished. The plaintiffs appealed against the decree in so far as it related to the lands in dispute. The first Appellate Court agreed with the trial Court that section 59 of the said Act debarred all the daughters from inheriting the occupancy right in the suit land, but held that Begum Nur, an unmarried daughter, inherited those lands under custom as a limited owner. The name of Begum Nur was accordingly mutated. The first appellate Court further held that the, limited estate of Begum Nur came to an end with the marriage and that the land in suit thereafter devolved upon the heirs of Nur Khan under section 3 of the Shariat Act. The Court also held that the possession of Begum Nur did not constitute adverse possession. A decree for possession in respect of the disputed land was accordingly passed in favour of the plaintiff's. Respondent Begum Nur preferred a regular second appeal in the High Court of West Pakistan, Lahore and the appeal was allowed. The learned Judge of the High Court held that neither the defendants nor the plaintiffs inherited the occupancy right in view of the bar of section 59 of the said Act. The learned Judge, however, found that respondent Begum Noor had entered into possession of the suit land without any legal right under a mistaken belief of some custom and her possession of the lands had been openly hostile and exclusive for more than 12 years, and she accordingly acquired title to the lands by such adverse possession.
7. Leave was granted to consider the contention raised on behalf of the appellants that when respondent Begum Nur entered into possession of the lands on the basis of custom and when her name was mutated as a limited owner in accordance with such custom, it could not be said that she possessed the land in denial of the plaintiffs' title or that her possession was hostile so as to constitute adverse possession.
8. On behalf of the respondents it has been contended that according to the provisions of section 59 of the aforesaid Act the occupancy tenancy of Nur Khan had extinguished, inasmuch as none of the daughters of Noor Khan was entitled to succeed to the occupancy right, and there was none else under the said Act to succeed to it. Therefore, on the death of Nur Khan on 18th January 1949, the occupancy right in question ceased to exist and there could be no question of any one of the daughters of Nur Khan claiming the property by way of adverse possession against the other daughters of Nur Khan. The question of adverse possession claimed by respondent No. 2 could only be against the owner to whom the property evidently went back on the death of Noor Khan and the consequent cessation of the occupancy right. The provisions of the said Act will prevail over any custom to the contrary even if such a custom be, established.
9. There is, therefore, no substance in the appeal and it is accordingly dismissed with costs.