1. ' The facts relevant for the disposal of this revision are that one Ismail Khan owned landed property measuring 237 Kanals 16 Marlas situate in Mauza Kotha, Tehsil Swabi, He died issueless in 1905 when custom was the rule of law, therefore, his said estate was devolved on his widow Mst. Habib Noor alias Bano as limited owner. She mortgaged the land in question to Sahibzada Fazal Rehman Khan father of Sahibzada Alamzeb Khan, through registered mortgage-deed, dated 8-6-1915 for a period of 40 years. Jamal Khan, father of petitioner, Hashim Khan father of respondent No, 1 and Ashraf Khan, father of Rasool Khan challenged this mortgage through a Civil Suit No, 66/1 of 1915 on the ground that they are collaterals of Ismail Khan and reversioners of Mst. Bano and the mortgage on her behalf is illegal and without legal necessity and thus not binding on their reversionary rights.
2. This suit was compromised between the parties. Jamal Khan etc. Plaintiffs received Rs, 500 from the mortgagee and in lieu thereof they relinquished their reversionary rights in his favour and withdrew and thus the suit was dismissed as withdrawn, vide order of the Civil Judge, dated 23-10- 1915. Mst. Bano died in 1933. Her inheritance mutation was first attested in the name of Said Jabbar son of H shim Khan, but thereafter a correction mutation in the name of Yaqoob Khan respondent No, 1 was added and on the death of his brother, he was entered as sole owner in the revenue record. Yaqoob Khan on the basis of the entries in the revenue record applied to the Collector, Mardan for the restitution of the mortgage under section 4 of the N.-W. F. P. Restitution of Mortgage Land Act 32 of 1950. This application was resisted by Sahibzada Alam Zeb, son of the original mortgagee on the ground that Hashim Khan, the father of Yaqoob Khan, has already relinquished his reversionary rights in favour of his father through a compromise, dated 23-10-1915, and thus he is full owner of the land in question. This plea of Sahibzada Alamzeb Khan was accepted by the Collector, Mardan, who, vide his order, dated 25-4-1952 dismissed the application of respondent Yagoob Khan. Against this order, the respondent went in appeal before the Revenue Divisional Commissioner who, vide his order, dated 16-9-1953 accepted his appeal with direction that before this case could be decided under N.-W. F. P. Act 32 of 1950, the question of title under the compromise of 1915 be adjudicated upon in a civil Court. In view of this, Yaqoob Khan respondent instituted Civil Suit No, 596 of 1957 in the Court of Civil Judge, Swabi, for declaration that he is the sole owner of the equity of redemption of the suit land and Sahibzada Alamzeb Khan is holding it as mortgagee. The suit was decreed in his favour by Civil Judge, Swabi on 2-1-1960. The appeal and further appeal of Sahibzada Alamzeb Khan were proved unsuccessful and dismissed, respectively on 5-5-1960 and 14-11-1966. Thereafter, Yaqoob Khan respondent again applied for the restitution of mortgage under section 4 of the N.-W. F. P. Restitution of Mortgage Land Act 32 of 1950.
3. ' It may be mentioned that in 1964 Qaim Khan, son of Jamal Khan and Rasool Khan son of Ashraf Khan, whose father were co-plaintiffs with the father of Yaqoob Khan in Civil Suit No, 66/1 of 1915 had instituted the present suit for declaration that they are owners of 2/3rd shares in the suit property while Yaqoob Khan respondent is owner 1/3rd share only. Their suit was dismissed by the Civil Judge, Swabi on the ground that it was incompetent in its present form, as the plaintiffs were not in possession of the suit land and thus they cannot sue for mere declaration, vide his order, dated 1-12-1965 which order was challenged by Rasool Khan and Qaim Khan in appeal before the learned Additional District Judge, Mardan, who accepted their appeal, set aside the judgment and decree of the Civil Judge, Swabi and remanded the case for decision on merit, vide his order, dated 8-7-1966. Against this order, Yaqoob Khan respondent filed in this Court second appeal which was dismissed by a learned Single Judge of this Court, vide order dated 11-5-1967. Aggrieved by this order, Yaqoob Khan preferred in this Court Letters Patent Appeal and a learned Division Bench of this Court by order, dated 25-5-1970 accepted the same observing that :- "The suit was bad in form for not seeking a further relief of equity redemption available to the plaintiff-respondents, but the suit should not have been dismissed for that reason. Moreover, the suit land having been restituted in favour of Yaqoob appellant, and he having taken physical possession of the same, as admitted by the parties the plaintiff-respondents are allowed to seek further relief of possession and amend the plaint accordingly."
4. ' The case was thus remanded to the learned trial Judge, who proceeded to try the case on the following issues framed by him upon the pleadings of the parties :- "(1) Is the suit within time?
(2) Have plaintiffs cause of action to institute the present suit?
(3) Is the suit incompetent in its present form?
(4) Are plaintiffs estopped from bringing the present suit?
(5) Are plaintiffs owners by inheritance from Ismail as his reversioners?
(6) Is defendant No, 1 sole heir of Ismail and also title to the suit land has reverted to defendant No, 1 and his brother and as such could validly alienate property in favour of defendants Nos. 3 to 8?
(7) Is defendant No, 2 owner of the suit property?
(8) Whether the decree in civil suit in favour of defendant No, 1 has been obtained by fraud, if so, to what effect?
(9) Relief. Additional Issues :
(1) Whether the plaintiffs are entitled to the grant of a possessory decree for the suit land in the alternative?
(2) Whether the amended plaint filed by the plaintiffs after the remand is according to the permission granted by the High Court?
(3) Whether the suit is bad for misjoinder of parties?
(4) Whether the suit is bad for the purpose of court fee and jurisdiction?
(5) Whether the rights of defendant No, 14 has made any improvements in the suit land, if so, how much and with what effect?
(6) Whether defendant No, 1 has matured titles through adverse possession?
5. ' Upon these issues, the parties produced their evidence and on examination of the same, the learned trial Judge dismissed the suit of the petitioners on the grounds of limitation, cause of action, estoppel, adverse possession and protection under section 41 of the Transfer of Property Act was also extended to the transferee Yaqoob Khan respondent, vide his judgment, dated 3-7-1971, against which the plaintiffs went in appeal to the District Court and a learned Additional District Judge, Mardan who heard the appeal accepted the same and while setting aside the judgment of the learned trial Judge granted a decree of 2/3rd shares of suit land in favour of the plaintiffs vide his judgment, dated 25-4-1973. This judgment was challenged in second appeal before this Court by Yaqoob Khan respondent and a learned Single Judge, who heard the appeal, by his order, dated 21-3-1977, remanded the case to the learned lower appellate Court observing that :- "I am of the view that interest of justice would be better served, if, on acceptance of this regular second appeal, the case is remanded to the lower appellate Court with the direction that he should first consider and dispose of the objection of the present appellant, regarding the incompetency of the appeal on the ground of deficiency, in court-fee affixed on the memorandum of appeal and then also to determine the question of limitation of the appeal preferred before him in the light of any such delay in paying the proper court-fee in time and its impact on the competency of the appeal and then to consider and decide the appeal on merits."
6. ' After remand, the appellants applied for permission to pay proper court-fee and for condonation of delay. Their prayer was granted by the learned Additional District Judge, vide order, dated 7-11- 1978. The revision application of Yaqoob Khan against this order was dismissed by a learned Single Judge of this Court, vide order, dated 11-5-1980. Consequently the court fee was paid and the appeal was laid before the learned Additional District Judge for hearing on merit. He heard the appeal on two occasions. On the first occasion, it was pointed out to him that as regards the claim of Rasool Khan, he has in the previous proceedings before this Court by way of appeal relinquished his rights in favour of Yagoob Khan and the suit was dismissed as withdrawn as regards the share of Rasool Khan by a learned Single Judge vide his order, dated 25-9-1974. In this Cate of judicial record, the learned Additional District Judge, therefore, dismissed the appeal of Rasool Khan by order, dated 5-10-1980. On the second occasion, he heard the appeal as regards the share of Qaim Khan on merit and in the result agreeing with the finding of the learned trial Judge dismissed his suit. He further took the view that after the enforcement .Of Shariat Laws no suit on the ground of reversionary right lies and as the petitioner has filed the suit in his capacity as customary reversioner, his suit also fails on that score. In support of his view, he relied on the authorities of the Judicial Commissioner's Court N.-W. F. P. Reported in AIR 1941 Pesh. 15 and AIR 1941 Pesh.
35. Thus, he dismissed the suit of Qaim Khan by a separate order, dated 29-3-1981. Hence this revision application alone by Qaim Khan since dead and is now represented by his L. Rs,).
7. ' I have beard the learned counsel for the parties and gone through the evidence on record. The crucial and important question in this case is whether after the promulgation of Shariat Laws, a reversioner can competently file a suit for the enforcement of his reversionary rights. In this respect, we have to examine the N.-W. F. P. Muslim Personal Law Shariat Application Act VI of 1935. This Act was enforced on 6-12-1935 and thereafter two amendments were made therein in 1950 and 1953 in which it was laid down that the Shari Law enacted in the aforesaid Act will have retrospective effect. Section 3(2) of the said Act is relevant, which may be reproduced as under :- "Whenever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall be according to Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death. "
8. A reading of this provision is clear and plain beyond confusion, as it says that upon the death of a Muslim owner, the Court will have to decide the dispute between the heirs of the deceased as regards their share in the property of the deceased according to the Muslim Personal Law. As the petitioner herein has filed the present in his capacity as customary reversioner, his suit is thus incompetent according to the above provision. A similar question also arose before the Supreme Court in a case reported in PLD 1984 SC 394 and it was held that "there is now no doubt left that the N.-W. F. P. Act of 1935 is to be given retrospective effect and that whenever a dispute comes before a Court of law with respect to succession to the estate of a deceased Muslim the deceased will be deemed to have died under the domain of Muslim Law, even if the death had take place before the coming into force of the N.-W. F. P. Muslim Personal Law (Shariat) Application Act of 1935." The learned Additional District Judge was, therefore, right to hold that according to the Shari law, the suit in the present form is not maintainable and I see no reason to interfere with his view in this behalf.
9. ' Even otherwise, if the case is examined with reference to the customary law, the question of limitation stands in the way of the petitioner. On the question of limitation, the two Courts below were right to hold that the suit was hit by limitation with reference to Articles 140 and 141 of the Limitation Act, which may be reproduced as under :- "140-By a remainderman, a Twelve years. When his estate falls reversioner (other than a into possession. Landlord) or a devisee, for possession of immovable property."
10. "141-Like suit by a Hindu or Twelve years. When the female Muhammadan entitled to dies. The possession of immov- able property on the death of a Hindu or Muhamma- dan female."
11. These provisions will. Show that upon the death of a person who is holding the estate as limited owner, his/her reversioners will bring suit for possession within twelve years of his/her death. The learned > counsel for the petitioner submitted that the two Courts below were wrong to hold that C the suit of his client was barred by limitation. He contended that the suit property was mortgaged with Sahibzada Alam Zeb Khan and until the expiry of the mortgage' period, legally there could be no occasion for the petitioner to sue for possession. I have not been impressed by this contention of the learned counsel for the petitioner in the facts and circumstances of the case. I have to observe that the expression "possession" employed in the above two provisions of the Limitation Act are not qualified to mean any particular type of possession but bears wider connotation to cover any type of possession in the light of the facts of a given case. Now on the death of Mst. Bano in 1933, the petitioner had a right to claim constructive possession as regards his share in the suit land and in that behalf he should have moved the revenue authorities for recording him as owner in constructive possession of his share but until 1964 when he filed the instant suit he did not claim any share in the suit land. While respondent Yaqoob Khan had all along been claiming ownership of the suit land by filing proceedings in revenue Courts as well as in civil Courts and for that matter seeking redemption of the suit land from the mortgagee. In the circumstances, it cannot be said that the petitioner had no knowledge of the aforesaid proceedings between Yaqoob Khan and the mortgagee. It is, therefore, obvious that he was watching the proceedings about the suit land as mute spectator, which shows that he had lost his interest in the suit land and had allowed respondent Yaqoob Khan to own the suit land for himself. I am, therefore, of the view that in the facts and circumstances of the case, the petitioner has by his conduct, disentitled himself to claim any relief and as he instituted the present suit long after 12 years of the, death of Mst. Bano, the two Courts below rightly hell that his suit was barred by limitation. This revision petition is, therefore, dismissed with no order as to costs.