USMAN ALI SHAH, C. J. The facts relevant for the disposal of this revision application are that Noor Khan owned agricultural as well as residential property. He had two sons, namely, Qutab Khan and Abdur Rehman. Qatab Khan predeceased his father. He was issueless and was survived only by his wife Mst. Sherina. Abdur Rehman was, however, alive when his father died. Abdur Rehman was, also issueless and during his lifetime, he executed a will to the effect that after his death his property will be transferred to his wife Mst. Wahab Jan and his brother's widow Mst. Sherina and after their deaths, his sisters Mst.Wazira, Mst. Amira and Mst. Amro will become owners of his property in equal share. It appears, however, that after the death of Abdur Rehman the suit land (which is agricultural property) came into possession of Mst. Amro. As custom was then the rule of law, Taus Khan, a reversioner, brought a suit against Mst. Amro challenging the above will executed by Abdur R.Ehman for declaration that the same was void and not binding upon his reversionary rights. It may be pointed out that in that suit Taus Khan did not question the residential property of Abdur Rehman: The learned Civil Judge who tried the suit granted decree in favour of Taus Khan, vide order dated 30-3-1918 but in appeal of Mst. Arnro the said decree was reversed by the learned Divisional Judge. On' further appeal of Taus Khan, however, the order of the learned Divisional Judge was set -aside and the decree of the Civil Judge was upheld by the former Court of Judicial Commissioner, N.W. F. P. Vide Judgment dated 3-8-1920. Consequently, Taus Khan took possession of the suit land. In the events that happened, Mst. Amro brought the present suit against the heirs of raus Khan for joint possession of the suit land claiming that she is owner to the extent of 2/9 shares in the same. Only defendant No. 1, the wife of the son of Taus Khan, contested the suit. Upon the pleadings of the parties, the learned trial Judge framed the following issues: --
(1) Whether the plaintiff has a cause of action?
(2) Whether the suit is within time? O.P.P.
(3) Whether Civil Court has the jurisdiction to entertain the present suit? O.P.P.
(4) Whether the suit is properly valued for the purposes of court-fee and urisdiction?OP.D.
(5) Whether the suit is bad for non-joinder of necessary parties? O.P. D.
(6) Whether the suit does not include the entire property left by Noor Khan deceased and as such, is not maintainable? O.P.D.
(7) Whether the pedigreetable is incomplete and incorrect, if so, what is the correct pedigreetable of the parties? O.P.P.
(8) Whether the suit has been brought with good intention? O.P.D.
(9) Whether the suit is bad in its present form? O.P.D.
(10) Whether Qutab Khan and Abdur Rehman were the last full owners of the property reverted to Taus Khan, or for that matter to his predecessors as reversioners? O.P.D.
(11) What is the effect of previously instituted suit referred to in paragraph No. 5 of the plaint? O.P.P.
(12) When did the plaintiff and her sister married and what was the effect of their marriage on their rights of inheritance? O.P.P.S.
(13) Whether the defendant No. 1 has matured her title by adverse possession in respect of the land measuring 8 Kanals? O.P.D.
(14) Relief.
Upon these issues, the learned trial Judge recorded evidence of the parties and on examination of the same he found that the suit of the plaintiff is barred by limitation. He, therefore, dismissed the suit; vide his judgment, dated 1,6-2-1973. By this judgment the plaintiff was aggrieved, therefore, she went in appeal to the District Court. A learned Additional District Judge who heard the appeal agreed with the finding of the learned trial Judge and dismissed the appeal, vide his judgment dated 6-3-1979. Hence this revision application.
2. I have heard the learned counsel for the parties who confined their arguments to issue No. 13 relating to limitation. In support of their impugned finding the two Courts below referred to the previous suit between the parties in which finally the former Court of Judicial Commis--sioner in appeal held that the will executed by Noor Khan in favour of his sisters was against the law of custom. The judgment in that case is dated 3-8-1920. The two Courts below further found that thereafter Taus Khan (the predecessor of the respondents herein) came into posses--sion of the suit land and according to the revenue record; he was all along in possesbton of the same. The Courts below observed that meanwhile although N.-W. F. P. Shariat Act came into force in 1935 which is retrospective in effect but as the petitioner failed to bring suit within 12.Years of the passing of the said Act, her suit is, therefore, hit by limitation and she cannot be allowed to claim any share in the suit property which according to the revenue record, had all along been in possession of the respondents. I have already pointed out that Noor Khan also owned residential property and it is not denied that the petitioner is in possession. Of the same. It was contended before the two Courts below that as the petitioner was in possession of the residential property of Noor Khan, she was, therefore, co-sharer in the entire estate of Noor Khan and on that score the two Courts below were wrong in holding that the suit of the petitioner was barred by limitation. This contention did not weigh with the two Courts below. In this respect, para. 8 from the judgment of the learned lower appellate Court may be reproduced :- "(8) The counsel for the appellant has contended that the plaintiff is in possession of the house which was also the property of her father, but in my opinion the possession, in the house cannot be stretched, to be her being in possession of agricultural land as well. . I am also conscious of the fact that plaintiff is a woman anal even if it is admitted that she is a Pardanashin lady, then as well this will not give her any benefit in view of the previous litigations between the parties, whereby her rights ceased into the property. Therefore, she is deemed to be in the knowledge of the fact that she is declared to be not the owner of the share of the property of her father or her brother who executed will in her favour. As such I am of the opinion that the issues mentioned above, have been correctly decided by the learned lower Court."
3. It will thus be seen that according to the two Courts below, if a deceased person leaves behind agricultural as well as residential property and one set of his heirs occupies agricultural property and the other set occupies residential property, legally no one of-the sets can come forward to claim any share in the property in possession of the other set, if they bring civil action in this behalf beyond the period of 12 years after the passing of the N.W. F. P. Shariat Act, 1935. In support of his view that the suit of the petitioner was barred by limitation, the learned Additional District Judge relied upon an. Authority reported in the case of Mukammil Shah v. Mst. Apogai (1) decided by a learned Single Judge of this Court. I would like to give in brief the facts of the cited case in order to show that a, legal question involved in the case was not posed before the learned Single Judge for examination. Mukammil Shah and Mst: Apogai were brother and sister inter se. Their father owned agricultural as well as resi--dential property. Mst. Apogai was married during the lifetime of her father. After the death of her father her husband also died. She then occupied the house of her father. The agricultural land was in possession of her brother Mukammil Shah. Mukammil Shah brought suit against Mst. Apogai for possession of the house. The suit ended in compromise between the parties in the following terms:- "In this suit we have compromised in the following terms. A." room and western verandah 4/5 Marlas has been given out by Mukammil Shah to Apogai for residence till her marriage or death. No one else will have anything to do with it. Besides 4 maunds of maize, in summer four maunds of wheat will be given to her till her remarriage or death annually. The other room and verandah measuring 5 Marlas shall be given to Mukammil Shah."
In the events that happened, Mst. Apogai brought suit against her brother Mukammil Shah under .The N.-W. F. P. Muslim Personal Law (Shariat) Application Act, 1935 (hereinafter called N.-W. F. P.
Shariat Act, 1935) for her due Shari share in the agricultural land of her father. The Civil Judge dismissed the suit. He found that the plaintiff filed suit beyond the period of limitation after the passing of the N.W. F. P. Shariat Act, 1935. Mst. Apogai filed appeal in the Court- of District Judge who accepted the appeal and decreed the suit in her favour. Against the judgment of the learned District Judge, Mukammil Shah filed a revision petition before this Court. A learned Single Judge, who heard the revision,, accepted the same and setting aside the judgment of the learned District Judge restored that of the Civil Judge.
It would appear from the judgment in the cited case that no argument was addressed before the learned Single Judge on the question that as the plaintiff was still in possession of the house of her father, she is, therefore, a co-sharer in the entire estate of her father and for that matter she is in joint possession of the suit land along with her brother. The learned Single Judge only dealt with the agricultural land in possession of the defendant arid did not take note of the house in possession of the plaintiff. He held that the compromise reached between the parties in the previous suit was never acted upon, as no corn was even given by the defendant to his sister Mst. Apogai and as otherwise according to the revenue record, the defendant was in possession of the suit land (agricultural land) for over 12 years after the passing of N.W. F. P. Shariat Act, 1935, he matured his title to the suit land.
Now a learned Single Judge of this Court while admitting this revision application to regular hearing by order dated 26-5-1979, formulated the following question for examination: - "The question which requires consideration in this case is whether the possession of a co-sharer over a part of the joint property; whether residential or agricultural will be deemed to be possession over another part of the joint property which is not in physical possession of that co-sharer."
No specific law or proposition of law was cited before me on the above question, therefore, in order to do justice between the parties in this case, the Court will have to examine the case according to the dictates of its own judicial conscience with reference to the evidence on record.
4. Now in the present case, the deceased own agricultural as well as residential property I consider that in legal parlance, both properties are one estate of the deceased. After the death of the deceased, his Shari heirs, therefore, became co-sharers to the extent of their shares in his estate.
The petitioner is in possession of the residential property while the respondents are in possession of the agricultural property. No partition of the estate of the deceased has ever taken place between his heirs. As in my view, the agricultural property and the residential property are one A estate left by the deceased, the respondents had the right to claim their share in the residential property in possession of the petitioner and the petitioner had the right to claim her share in the agricultural property in, possession of the respondents. There can be no question that as the agricultural land was in possession of the respondents for over 12 years, they became its owners by the efflux of time. No such question must arise in such case. The residential property in possession of the petitioner is as much a part of the estate of the deceased as the agricultural property is a part of his estate.
5. Should what the two Courts below have held in a case of this nature prevail as a principle of law, it would violate the sanctity of the B estate of the deceased some of whose heirs would be deprived of their due Shari shares in a particular kind or type of property in the estate on the ground that they were in possession of some other kind or type of property and were not in possession of that particular kind or type of property which was` in possession of their co-heirs for over 12 years. It may be observed that the word "estate" conveys wider connotation and is comprehensive to include every type of property. So is the word "property" which can be used as synonymous of the word "estate". If dispute between the heirs of the deceased with respect to his estate comes for decision before the Court and the estate consists of different kinds or C types of properties viz., agricultural, residential and commercial properties, equity demands that the Court should treat all properties as one entity or whole. In other words, if it is found that some of the heirs of the deceased are in possession of one kind or type of property and the other heirs are in possession of the other kind or type of -property, all the heirs will be deemed to hold the entire estate of their predecessor jointly till such time partition of the estate is effected between them and there can be no question of limitation to run against any one of the heirs, if he brings civil action to claim his due Shari share in the estate of his predecessor. The elementary principle of law that a co-sharer of the property, so long as the property is not partitioned, is owner in every inch of the estate, can, with equal force, be applied in such cases.
6. Now, as I have reached the conclusion that the agricultural as well as residential property is one estate left by the predecessor of the parties on his death and as the petitioner is in possession of the residential property, she is, therefore, co-sharer in the entire estate of her predecessor or for that matter the entire estate is in joint possession of the heirs of the deceased. I, therefore, hold that the petitioner is entitled to the extent of her share in the suit property. .
7. The learned counsel for the respondents, however, contended that as according to the revenue record, his clients are in possession of the suit land for the period beyond the period of limitation after the passing of the N.W. F. P. Shariat Act, 1935 they have matured title to the suit land and the doctrine of ouster, according to the learned counsel, would constitute a legal bar against the petitioner to claim any share in the suit land. I have not been able to subscribe to this contention.This aspect of the case was also considered by the learned Single Judge in the cited case. The report would show that the learned Judge did not dismiss the suit of the plaintiff merely because the defendant was, according to the revenue record, owner in possession of the suit land for over the period of limitation after the passing of the N.W. F. P. Shariat Act, 1935, but because the compromise reached between the parties in the previous suit was never acted upon according to which the defendant was to give annually the stipulated corn for maintenance to his sister. In other words, if the learned Single Judge upon the evidence on record was satisfied that the compromise between the parties in the previous suit wag acted upon and the plaintiff was to receive annually the corn according to the terms of compromise, the decision would, in disregard of the revenue record, have been otherwise in favour of the plaintiff and she would have been held co-sharer in the suit land.
8. The above contention of the learned counsel for the respondents would have been' available to him if the respondents were all along in possession of the entire estate of the deceased beyond the period of limitation to the exclusion of any co-heir of the deceased, but as the petitioner in the present case is in possession of the house which is a part of the estate of her father she can, therefore, be deemed to be in joint possession of the entire estate along with the respondents and for that matter she is in joint possession of the suit land. In the circumstances, the question of ouster cannot, therefore, be agitated against' her. Correct that in the revenue record, the respondents are shown in possession of the suit land for over the period of -limitation after the passing of the N.W. F. P. Shariat Act, 1935, but entries to that effect, in. My view, should not react against the petitioner. In joint possession of an estate no, co-sharer, who is in possession of any part of the estate even though that part may be of any kind or type and lies anywhere, is entitled to alienate that particular part in his name in the revenue record if it is agricultural property or by other means, if it is other kind of property. If what the learned counsel has contended is held as a matter of law it will undo a settled law that until partition every co-sharer, who is in possession of any part of the estate of his predecessor, is to be deemed owner in every inch of the estate.
8. No other point was urged before me and it is conceded that if it is found that the petitioner and the respondents are in joint possession of the suit property, the petitioner would be entitled to the extent of her 2/9 Shari share in the suit land.
9. As a result of this whole discussion, I set aside the judgments of the two Courts below and while allowing this revision application, I decree the suit of the petitioner as prayed. As complicated question of law was involved in the case, I leave the parties to bear their own costs.