1. JAVID IQBAL, J.--The dispute in this case relates to the occupancy tenancy of one Mali who died in 1930. He had two wives, namely, Mst. Begum Jan and Mst. Khanam Jan. From Mst. Begum, who pre- deceased him, he had a daughter namely Mst. Hajo who was married at the time of his death.
2. However Mst. Khanam Jan survived him from whom he had two daughters namely Mst. Umar Jan who had pre-deceased him and Mst. Shah Jehan who survived him. The present appellant namely Abdul Qayum is son of Mst. Umar Jan deceased. Since Mst. Khanam Jan and her daughter Mst.
3. Shah Jahan survived Mali deceased, on his death his property devolved under custom on Mst.
4. Khanam Jan and Mst. Shah Jahan as limited owners to the exclusion of Mst. Hajo who was a married women at the time of her father's death. Subsequently Mst. Shah Jahan also died unmarried and Mst. Khanam Jan became the sole limited estate holder. Then Mst. Khanam Jan also died and as a result the dispute with regard to the distribution of the property arose and litigation ensued between the present appellant and Mst. Hajo on one side and the respondents on the other who were claiming title to the entire occupancy tenancy left behind by Mali. The trial Court after recording the evidence adduced by the parties granted the decree in respect of the entire property in suit to the present appellant, but held that Mst. Hajo was not entitled to any share therein for the reason that previously a suit had been instituted by her for declaration of her title to the occupancy tenancy of Mali but it had been dismissed and consequently this matter had become res judicata as against her. Mst. Hajo did not prefer any appeal against the judgment of the trial Court as against her and, therefore, she dropped out of the picture. However considering that the present appellant being the nearest kin of Mali alive, he was regarded entitled to inherit the occupancy tenancy left behind by Mali which was later on converted into ownership by the operation of law in 1950. The case of the respondents before the trial Court was that the property in suit devolved upon them on the death of Mst. Khanam Jan who was their predecessor-in-interest and that furthermore as such they had been in possession of the said property since 1945. It was also contended on their behalf that since they had been in possession of the property in suit since 1945 they had become owners thereof even by prescription. Both these pleas raised by them were rejected by the trial Court, firstly for the reason that they could not show that they had any relationship with Mst. Khanam Jan and secondly the record indicated that they were in possession of the property in dispute under the bona fide belief that they would inherit the same. In such circumstances the question of adverse possession did not at all arise in their, favour. Thus the trial Court held that the present appellant was entitled to inherit the suit property as a distant kindred of Mst. Khanam Jan.
5. Consequently a decree for possession subject to the mortgage charge in respect of the suit land was passed in favour of the present appellant as against the respondents. The respondents challenged the judgment and decree of the trial Court in appeal before the District Judge Hazara which was dismissed on 9th November 1967. It was held by the District Judge in the light of the evidence on record that the respondents were not the collaterals of Mali, the last male holder - nor was there any evidence to show that they were the successors-in-interest of Mst. Khanam Jan the limited estate holder. In that view of the matter they were legally not entitled to inherit any share in the property in suit. The alternative argument on their behalf that since they were in possession of the disputed property as far back as 1945, it had matured into ownership by prescription, was rejected for the main reason that the necessary ingredients of adverse possession were that the party in possession must be conscious of the fact throughout that he was not entitled to possession and that his possession was unlawful, hostile as well as against the interest of the lawful owner to the knowledge of the latter. However in the present case it was observed by the District Judge that the respondents had all along remained in possession considering themselves to be the lawful owners of the suit property until it was subsequently declared by the Sub-Judge, Abbottabad and the District Judge Hazara in 1954 that they were not entitled to retain possession of the suit property. Hence their possession could be assumed as adverse only from 1954 and that the time would start running against the lawful owners from that year. But the present suit having been brought in the year 1962 was well within time as the respondents had not matured their title by adverse possession. Thus it was in this background that the District Judge upheld the judgment and decree passed by the trial Court in favour of the present appellant.
6. Aggrieved by the judgments of both the Courts below the respondents preferred a Regular Second Appeal before the Peshawar High Court Peshawar which was accepted vide judgment of a learned Single Judge, dated 10th May 1974, and as a result the judgment and decrees of the Courts below were set aside. The main ground on the basis of which learned Single Judge accepted the appeal of the respondents was that they were in possession of the disputed property since 1945 considering it to be their own and that as such it was held by them in denial of the title of any other person including the lawful owner i.e. The present appellant. Thus according to the learned Single Judge the property in dispute was susceptible to possession and the respondents had held it since 1945 in assertion of their own title and in denial of the title of any other person entitled thereto.
7. Therefore, the present suit brought by the appellant and Mst. Hajo in 1962 was barred by limitation, as long before 1962 the respondents had matured their title by prescription. The judgment of the learned Single Judge of the Peshawar High Court, Peshawar was challenged in appeal by the present appellant in this Court, and leave to appeal was granted to examine the question that the respondents who had claimed a right to hold the property in dispute as Muslim law heirs of Mali or of Mst. Khanam Jan could not have claimed adverse possession as against the appellant who was, as distant kindred, also an heir of Mali.
8. It was argued by the learned counsel for the appellant that admittedly if the respondents were in possession of the disputed land from 1945 onwards, it was for the reason that they genuinely believed that they were to inherit the said land as heirs, but certified copy of the judgment of the Sub-Judge, Abbottabad, dated 27th February, 1954 placed on the record of the trial Court revealed that this was not so and the learned Sub-Judge in that judgment had given finding to the effect that the respondents were not the collaterals of Mali, and as such were not entitled to any share in his estate. This judgment was subsequently affirmed by the District Judge as the appeal preferred by the respondents was dismissed, Thus there was a concurrent finding of fact by both the Courts below that if at all the respondents could claim adverse possession as against the lawful owner i.e. The present appellant, it was only from 1954 onwards. It was submitted that the present suit having been filed in the year 1962, was well within time of the period of limitation of 12 years and the respondents had not matured their title by adverse possession. It was also submitted that the concurrent finding of fact on this crucial point by both the Courts below should have not been disturbed or interfered with by the learned Single Judge of the Peshawar High Court, Peshawar in a regular second appeal. Learned counsel for the respondents on the other hand argued that the respondents were in possession of the disputed land since 1945 and in whatever capacity they held possession, it actually amounted to denial or defiance of the title of any other person including the lawful owner and that, therefore, if they were in possession of the said land since 1945, by 1962 when the suit had been brought, their title had matured by adverse possession.
9. We have heard learned counsel for the parties, but we do not agree with the reasoning of the learned counsel for the respondents. The concurrent finding of fact of both the Courts below based on the evidence on record was that the respondents retained possession of the disputed land from 1945 to 1954 because they genuinely believed that they were going to inherit the same as heirs of the last full owner. But in accordance with the decisions of the civil Courts which were not challenged by them further they were not held to be collaterals of the last full owner. Furthermore if at all their adverse possession commenced in regard to the land in question, it has to be considered from 1954 and not from 1945. But then the present suit was filed by the appellant in the year 1962 and it was well within time as the respondents had not matured their title by adverse possession. We agree with the learned counsel for the appellant that the concurrent finding of fact of the Courts below on this crucial point should have not been interfered with by the learned Single Judge in regular second appeal.