' This second appeal against judgment and decree dated December 19, 1979, of learned Additional District Judge (II), Attock, is, by the defendants in the suit brought by Firdaus Khan and Farid Khan plaintiffs to recover possession of their 3/8th share in the property of Bazid Khan. Suit was decreed on 14-7-1979, by the trial Court. In appeal by the defendants, decree of the trial Court was partly modified and share of the plaintiffs from 3/8th was reduced to 5/24 shares. In regard to the rest, conclusions of the trial Curt were affirmed.
2. Relevant facts are:- 18 Kanals, 4 Marlas of land, at Mauza Said Khel, Tehsil Attock, belonged to Bazid Khan son of Fateh Ullah Khan. In matters of alienation and succession, Bazid Khan was governed by rule of custom. Upon his death, land owned by him was mutated in the name of Mst.
Khanum Ji and Mst. Sahib Noor, his two surviving widows, vide Mutation '133 sanctioned on 24-5- 1927. On the death of Mst. Khanum Ji, her share in the land was mutated in the name of Mst. Sahib Noor, the other widow, vide Mutation 1208 attested on 31-9-1939, Mst. Sahib Noor also died and by Mutation 2227 sanctioned on 6-2-1945, land held by her was ordered to be mutated in the name of Mst. Rahim Jan, unmarried daughter of Bazid Khan. By deed registered on 29-1-1977, Mst. Rahim.
Jan gifted the above 18 kanals, 4 marlas of land to her sister's sons namely Marsal Khan and Ajjun Khan. Mersa] Khan is son of Mst. Bibi Jan and Ajjun Khan is son of Mst. Sahib Nishan. Both Mst. Bibi Jan and Mst. Sahib Nishan were daughters of Bazid Khan and real sisters of Mst. Rahim Jan. On 9- 5-1977, Firdaus Khan son of Waris Khan and Farid Khan son of Yaqoob Khan, as the near residuaries of Bazid Khan, claimed 3/8th share in the property in dispute and brought a suit for possession against Mst. Rahim Jan and the two donees from her. Defendants submitted a joint defence wherein they denied the claim of the plaintiffs. It was pleaded that Mst. Rahim Jan was full owner of the property and the gift made by her was valid in law. It was also pleaded that the suit was barred by limitation and in the alternative, it was averred that in case Mst.' Rahim Jan was held to be a limited owner, she had acquired full ownership sights in the land by being in its adverse possession for a period exceeding 12 years. On 24-7-1977, the trial Court settled issues in vernacular which rendered in English read as follows:-
(1) Is the suit time-barred?
(2) Whether Mst. Rahim Jan was in possession of the suit land as a limited owner under custom and the alienation of the same by her was against the custom of the parties and as such illegal and void?
(3) Whether the plaintiffs are the heirs of the last male holder and as such entitled to his inheritance. If so, to what extent?
(4) Relief.
3. Upon consideration of evidence produced by the parties, the trial Court concluded that the suit was filed within limitation; that Mst. Rahim Jan held the property under custom as limited owner and had no right to alienate it by way of donation so as to adversely affect reversionary rights of the plaintiffs and to that extent alienation was void; that the plaintiffs as heirs of Bazid Khan were entitled to 3/8th share in his property. Consequent upon these conclusions, suit was decreed.
Except for modification in the shares as noticed above, these conclusions were affirmed, in appeal, by learned Additional District Judge.
4. At the hearing of the second appeal, it is not disputed that last male owner of the property was Bazid Khan; that Mst. Rahim Jan his unmarried daughter held the land as limited owner; that as limited owner, she could not donate the entire land to her nephews; that the shares of the parties in the property worked out by the learned Judge below are correct. Only finding on issue No,1 was questioned. Further it was argued that absence of a separate issue on the plea of adverse possession raised in the written statement caused serious prejudice to the defence inasmuch as required evidence to prove this plea could not be let in. As against this, learned counsel for the plaintiffs-respondents submitted that issue No,1, in regard' to bar of limitation, was correctly settled and it also covered the defendants' plea of adverse possession. Learned counsel further submitted that the defendants were fully cognizant of the case they had to prove and having failed, they cannot now be permitted to have another round of litigation to fill in the existing gaps in their evidence.
5. Having heard the learned counsel at length and on examination of the original records, second appeal appears to be properly concluded by concurrent findings of fact recorded by learned Courts below and there is no room for further interference. There is no dispute that Mst. Rahim Jan held' the land as limited owner. By Act V of 1962, her rights in the land were terminated with effect from 31-12-1962 and succession to the estate of Bazid Khan opened out to be distributed amongst his muslim law heirs in accordance with section 5 of the above Net.' There is also no dispute that Bazid Khan was survived by three daughters and two widows. Therefore, from 31-12-1962, his daughter Mst. Rahim Jan was invested with the legal status of a co-owner with the plaintiffs to the extent of their 5/24 shares in the disputed property. There is no evidence that after the enforcement of Act V of 1962, she held the land adversely to the knowledge of true owners. In default of clear evidence of ouster and holding of the land adversely to the knowledge of true owners, not existing in the case, ordinary presumption of law that possession of a co-heir or a co- owner is deemed to be held on behalf of other co-heirs or co-owners as the case may be applied to the facts of the present case. Even a cursory glance upon the records is sufficient to show that there is not an iota of evidence to support and establish adverse possession. Mere possession for any length of time or non-payment of rent in absence of other required ingredients are not sufficientto prove adverse possession. As for absence of an issue on plea of adverse possession and its causing any prejudice to the defendants' case, it is enough to state that no party was in doubt as to what it had to prove. Issue No,1, in regard to bar of limitation covered the main question and was sufficiently comprehensive and clear to attract the attention of the parties to what they had to prove. From 1977 to 1979, the period when the civil suit remained on the file of the trial Court, defendants did not find any fault with issues and never bothered to invite the attention of the Court to the incorrect frame of the issues or that issues already settled were not wide enough to cover the points in dispute between the parties. To the contrary, defendants led the defence on the issues settled by the trial Court without any demur. Having failed to bring the required material on record, despite adequate opportunity, they cannot be heard to complain for another round for adducing additional evidence. Mere fact that a specific issue was not framed by the lower Court in regard to a certain point involved in the case is no ground for remanding the case where both the parties are shown to have perfectly understood each other's cases. As noticed above, there was no ambiguity about the case, the defendants had to prove. Therefore, the 'contention that absence of an issue on the plea of adverse possession caused miscarriage of justice does not appear to be sound and has no real merits in it. In view of aforesaid, second appeal is found to be without substance and the points taken at the hearing are not sufficient to reopen the case for its trial de novo.
Consequently, second appeal is dismissed with no order as to its costs.