MIAN BURHANUDDIN KHAN, J.--This appeal by special leave granted per order of this Court, dated 28-10-1976 is directed against the judgment and decree of the learned single Judge of Lahore High Court passed in Regular Second Appeal No.750 of 1962, on 5-12-1974.
2. Facts giving rise to this appeal are that the parties are inter-related. Appellants Nos.1 Boota Khan and 2. Mst. Hassan Bi are brother and sister; while Nur Hussain and Muhammad Akram are the husband and son of appellant No.2. The respondents are paternal nephew and paternal aunt respectively.
One Fateh Din had three sons namely Sardar, Feroze and Nauroz, who were occupancy tenants of agricultural lands measuring 84 Kanals and 12 Marlas situate in village Missa Kiswal, Tehsil Gujar Khan, District Rawalpindi. All the three had equal shares i.e. 1/3rd each. They were governed by the Punjab Tenancy Act of 1887, hereinafter referred to as the Act.
Sardar died in 1934, leaving behind Sadiq a son and Mst. Hussaini Bi. On his death his 1/3rd share was inherited by his son Sadiq who died in May, 1939 leaving behind his his mother Mst. Hussaini Bi as his sole heir. In November, 1939 the Act came into force.
Feroze, the brother of Sardar died and left behind his son Saudagar as his sole heir, who died issueless. Mst. Hussaini inherited in all 1/3rd, 1/6 i.e. 1/2 share of land measuring 42 Kanals and 6 Marlas. Nauroz, another brother of Sardar also died and left Faiz A.I alias Faiz Alam son and Mst.
Hussaini Bi alias Bholi.
3. In the year 1952 the Punjab Tenancy (Amendment) Act VII came into force. By virtue of section 114 whereof, tenancy was extinguished and the right of ownership vested in Mst. Hussaini. On payment of compensation to the landlord under the rules framed under section 114 Mst. Hussaini became the proprietor of the suit land and became the exclusive owner of the property in the suit. After the death of Mst. Hussaini, the respondents under mutation No.21 dated 26-5-1959 became owners of the entire land measuring 84 Kanals and 12 Marlas as follows: Boots Khan2/3rd out of 1/4 share Mst. Hassan Bi1/3rd out of 1/4 share Faiz Aliout of 1/2 share Mst. Bholiout of 1/4 share Thereafter, in July 1959 appellants Nos.1 and 2 filed in the Court of Civil Judge, Second Class, Gujar Khan the Civil Suit No.397 of 1959 for declaration that the said mutation No.21 dated 26-5-1959 was void and not binding and for possession of 1/2 .Hare measuring 42 Kanals 6 Marlas out of the total 84 Kanals and 12 Marlas. The respondents filed a written statement contesting the suit, and on the pleadings, the learned trial Court framed the following issues:
(i) whether Hussaini Bi deceased was the full owner of the suit property
(ii) what is the share of the plaintiffs in the suit property, and
(iii) relief After recording the evidence, the learned trial Court passed a decree for declaration and possession in favour of the appellants with costs. The respondents filed an appeal before the District Judge, Rawalpindi. During the pendency of the appeal Mst. Hasan Bi died leaving behind Nur Hussaini son of Roshan Khan, her husband and Muhammad Akram her son, as her legal heirs.
They were impleaded in the appeal. The learned Additional District Judge, Rawalpindi, by his judgment dated 7-11-1962, accepted the appeal and modified the decree of the learned trial court and granted the appellant a decree for possession of 1/9th share only in the suit land which came to 9 Kanals and 8 Marlas, and dismissed the appellants' claim for the rest of the suit land.
The appellants then filed R. S. A. In the High Court of West Pakistan which was heard by a learned single Judge, who vide the impugned judgment, dismissed the appeal with costs and held that since no appeal had been filed by the other side against the order of the Additional District Judge granting 1/3rd of the property of the appellants, therefore, the decree of the High Court shall not affect that part of it and the appellants filed petition for leave to appeal which was granted by this Court per order dated 28-10-1976.
4. Learned counsel for the appellants contended that the learned single Judge erred in law in holding that Mst. Hussaini did not benefit by any of the amendments of the Punjab Tenancy (Amendment) Act, 1952 and 1959; that the learned Judge erred in law in holding that though Mst.
Hussaini was in possession of the suit land, still by lapse of time, she had not become an occupancy tenant; that respondent No.1 who was a joint tenant alongwith Mst. Hussaini and had jointly deposited the compensation money alongwith her for payment to the landlord, and was present at the time of attestation of the mutation of proprietorship, had acquiesced in the acquisition of proprietary rights, and was, therefore, estopped from questing it subsequently; that the proprietary rights had been acquired by mutation sanctioned on 29-12-1957 and since that order was not challenged within time, the respondents were not competent to challenge it subsequently; that the respondents were not the legal heirs of Mst. Hussaini or her son Sadiq deceased, and were not entitled to any share out of her estate; that the rule of succession in occupancy tenancy was governed by section 59 of the Punjab Tenancy- Act; that no such thing as a mother's estate was recognized in law, and, therefore, the doctrine of accretion does not apply; that the respondents and Mst. Hussaini were residents of the same village and Hare co-sharers in the same Khata, the possession of Met. Hussaini without any legal title was openly hostile to the respondents to their knowledge and the time which began to run against the-, from 1934 could not be stopped, and after 12 years, matured into absolute title as an occupancy tenant.
5. Before coming ;o the points raised by the learned counsel for the appellants we would like to refer to certain paragraphs of the plaint filed in the Court of Civil Judge by the appellants seeking declaration to the effect that the land in dispute (detailed in the plaint) was wrongly shown as the property of Sardar, husband of Mst. Hussaini and in this manner, got mutation No.21 dated 26-5- 1959 attest3d indicating the shares as under: Boota,appellant No.1 brother of Mst. Hussaini.2/3rd Mst. Hasan Bi appellant No.2 sister of Mst. Hussaini.l/3 Faiz A.I defendant No.1 brother's son of Sardar 1/2 Mat. Bholi defendant No.2 sister of Sardar 1/4 and that the property in dispute, was not the estate of Sardar, husband of Mat. Hussaini but it was her personal property which she inherited under Act VII of 1952, and, therefore, section 3 of the Shariat Act, 1948 was not attracted to this property, and the plaintiffs (now appellants) Boota and Mst. Hasan Bi were entitled to 2/3 and 1/3 shares respectively and the aforesaid mutation No.21 was ineffective on their rights, and is, therefore, void and illegal. In this plaint, no such assertion was made that Mst. Hussaini, after having paid the compensation to the extent of her share, had become a full owner and that there was waiver to the ouster of the other legal heirs or she held it in hostile manner, and, acquiescence on the part of the defendants (now respondents), and, therefore, the trial Court struck the issues, mentioned in para 3 above, and held under issue (i): "in the present case in 1939 she was not entitled to succeed to her son. Her succession was clearly wrong and contrary to the provisions contained in clause (a) of section 59 of the Tenancy Act. She should be deemed to be in adverse possession right from 1939. Again in 1952 she was made the full owner after paying the usual compensation as is evident from Exh.P.4"
As against this the learned Additional District Judge, in his judgment, dated 7-11-1962, observed as follows:-- "The controversy in this appeal ranges round the main and the only point whether Mst. Hussain Bi was the full owner of the land in dispute. In order to appreciate this precise question, it is necessary to state a few preliminary facts. I have already stated in the earlier part of my judgment that Sadiq deceased died issueless and his inheritance mutation in respect of his 1/3rd share was attested in favour of his mother Mst. Hussain Bi by virtue of Mutation No. 576 Exh.D.3 sanctioned on 8-9-1939. It follows that Sadiq admittedly died before the 9th November, 1939 when the Punjab Tenancy (Amendment) Act of 1939 came into force. Under the law as it stood before the amendment, Mst.
Hussaini Bi could not succeed to the right of occupancy left by her deceased son Sadiq. It appears that since customs was the first rule of decision in matters relating to inheritance, the revenue authorities by inadvertisement, sanctioned the mutation in respect of the occupancy rights to the extent of 1/3rd share in the suit land in favour of Mst. Hussain Bi after the death of her son Sadiq"
The learned Additional District Judge further observed, in this sequence, that there was nothing on the record or in the pleadings to show that she remained in such possession in her own rights in contravention of the rights of the reversioners of the last male holder or that she asserted a right adverse to them who were recorded by her as legal heirs to her son Sadiq deceased and that in order to establish the plea of adverse possession what is required is that possession should be overt and that concealment of the knowledge of the real claimant, actual or- presumed. The time against the real claimant shall run from the date when hostile assertion is made. As already explained Mst. Husain Bi never asserted hostile title in respect of the suit land to the knowledge of the defendants or their predecessors, and, therefore, in the absence of such assertion, the plaintiffs respondents cannot tack her possession to that of theirs in order to prescribe title by prescription.
On the other hand, it inferentially follows that Mst. Hussain Bi remained in occupation of the suit land as a life estate holder. In her capacity as a limited owner, she would be keeping the estate alive for the benefit of the reversioners of the last male holder, and if any accretion falls, that too would be for the benefit of the reversioners. Rights of occupancy have been extinguished by reason of section 114 of the Punjab Tenancy Act but the capacity of Mst. Hussain Bi to hold that land would not be liable to change. Consequently, Mst. Hussain Bi will be deemed to be in possesson of the rights of ownership instead of rights o occupancy as a limited owner.
As stated earlier these other pleas were not raised either in the pleadings or before the Courts below, and, therefore, we decline to allow any such new pleas to be raised now before us. As regards the question of adverse possession, it is understandable that Mst. Hussain Bi had entered upon the suit land as a limited owner under the custom. She never asserted her right as full owner nor there is any evidence, as observed by the learned Additional District Judge, to hold otherwise.
Thus we find no merit in this appeal which is dismissed with costs.