MALIK MUHAMMAD QAYYUM, J.-This regular second appeal is directed against the Judgment and decree of learned District Judge, Sargodha dated 27th of November, 1968, affirming the decree of the trial Court dated 22nd of June, 1968 whereby the suit of the appellant Mst. Sughran Bibi was dismissed.
2. The dispute relates to the inheritance of Mst. Zainab Bibi, mother of appellant/plaintiff, who died in the year 1923. The land mentioned above, was granted by the Provincial Government to Gulab Khan as a Horse Breeding grant, who died about 50 years before the filing of he present suit without leaving any male issue. Consequently, the land was mutated in the name of his widow Mst.
Imam Bibi as a limited owner. On her death in 1918, a mutation was sanctioned in favour of her three daughters namely,Mst. Zainab Bibi, Hurmst Bibi and Mst Maryam Bibi. Appellant is the daughter of Mst. Zainab Bibi who died in 1923. On her death, the Revenue Authorities on 9-3-1924 mutated her share in favour of her to sisters, Mst. Hurmat Bibi and Mst. Maryam Bibi totally excluding oher daughter Mst. Sughran Bibi, the appellant.
On 7.2.1966, a suit for declaration to the effect that she was owner to the extent of 1/3 share in the land in dispute measuring 444 Kanals approximately, situate in the revenue estate of Chak No. 132/ S.B., Tehsil and District, Sargodha was filed by the appellant. It was stated by her in the plaint that she being the only daughter of Mst.Zainab Bibi was entitled to her 1/3 share in the suit land, but ws deprived of the inncrilance by the respondents, who are aunts being minor at the the of death of her mother. She also alleged that she had been brought up by the respondents and has been receiving Batai of the suit land. She alleged that she was in joint possession of the land alongwith the respondent who had never deined her title. This suit was conceded by defendant No. 2, Mst.
Maryam Bibi who besides being her mother's sister, is also the mother of her husband. It was, however, contested by Mst. Hurmat Bibi respondent No. 1 by filing a written statement in which it was dened that the appellant was entitled to any share in the suit land. It was also pleaded that the suit was not within the and, in any case, the respondent had become owner by adverse possession.
The trial Court framed the following seven issues in the case:- "1. Whether the plaintiff is in possession of the suit land and the suit lies in the present form?
2. Whether the suit is within the?
3. Whether the suit has been valued correctly for the purposes of Court fees and jurisdetion?
4. Whether the plaintiff is the owner of 1/3 share of the suit land as the only heir of her mother Mst.
Zainab Bibi?
5. Whether the defendant paid the Zar-i-Malkana and acquired the proprietary rights, if so when did they do so and to what effect on the present suit?
6. Whether the defendants become the owners of the suit land through adverse possession for more than 12 years?
7. Relief."
After recording the evidence of the parties the suit was dismissed on 22.6.1968. While deciding issue No. 1 the trial Court discarded oral evidence produced by the parties as according to it, witnesses rarely tell the truth and support the party which had produced them. The learned Court while relying upon Ex.P-1, Jamabandi for the year 1965-66, held that the respondent and not the appellant was in possession of the land. He also took notice of the Fard Intikhab. DW.5/1, according to which the appellant/plaintiff had never been in possession of the land. The suit was, therefore, held to be barred by section 42 of he Specific Relief Act. Under issue No. 2, the trial Court came to the conclusion that the suit was barred, by the. It was also held that the respondent had become owners of the land through adverse possession. However, issue No. 4 was decided in favour of the appellant, on the finding that she being the daughter of Mst. Zainab Bibi, was entitled to succeed to the share of her mother and such became cosharer in the suit land.
3. The appeal filed by the appellant before the District Judge; Sargodha, was dismissed on 27th of November, 1968. It was observed that the disputed muation Ex.D-2, excluding the appellant from inheritance was sanctioned as far back as 9th of March, 1924 and she never figured as a cosharer in any revenue record. On these premises, it was held that the suit was not within the. The contention of the appellant that she should be deemed to be a co-sharer in the land in question, was repelled in view what was termed as "ouster" or the plaintiff. The learned District Judge also came to the conclusion that the respondent had become owners by adverse possession.
1. After hearing the learned counsel for the parites at length and perusing the record, I have reached the conclusion that the Judgments of the to Courts below are not sustainable. The appellant has been non-suited on the ground that mutation of inheritance of her mother was sanctioned as far back as 9th of March, 1924, the present suit was filed on 7.2.1966 and was barred by the; and, further that the respondent having remained in possession of the land during this the, had become owner by adverse possession. None of these findings are tenable in law and both the Courts below have erred in coming to these conclusions. Admittedly, the land in dispute, was jointly owned, after the death of their father, by the three sisters, namely, Mst. Zainab Bibi, Mst. Hurmat Bibi and Mst. Maryam Bibi who were cosharers in possession of the land. At the the of death of Mst.
Zainab Bibi, the appellant was a minor. It has been found by the Court below that she was entitled to succeed to the shere of her mother. She as such,became a co-sharer in the land along with the respondents, who are the real sister of her mother. It is well settled that the possession of one co- sharer does not become adverse to the others unless specific ouster is proved. The only evidence on which the reliance has been placed by the Courts below, is the muation, Ex.D-3,in which the name of the appellant does not appear as an heir of her mother. The other fact which has been taken notice of, is, that the share of produce was never paid to the appellant.
These to factors are hardly sufficient to prove 'ouster' of the appellant from the land. The omission of the name of a co-sharer/heir from the mutation, ot other revenue record or non-participation in profits, cannot furnish basis for holding that the possession of one co-sharer has become adveres to others. In Mst. Aftaba and another Vs. Raza Khan and others (1984 P.S.C. 1117) it was held that no question of adverse possession arises between the co-sharers and the omission from the mutation proceedings of the name of one co-sharer was of no consequence. In the precedent case, the suit was fled after T5 years of attestation of mutation. In Mst. Qmai and others Vs. Hakeem Khan & others (1970 SCMR 499), the administration suit was filed after about 50 years of the death of the predecessor of the parties which had taken place in 1912. It was held that non-participation in the profits and sole possession of a co-sharer could not be the basis for holding the suit to be barred by the nor was it sufficient to prover adverse possession. Similar view was taken in Noor Ahmad Vs.Mst. Hubab Jan and 9 others (PLD 1974 S.C. 78). In Muhammad Khan and 3 others Vs. Khan Bibi and 3 others (PLD 1985 Quetta 105), the suit filed after 50 years was held to be within the. Similarly, in Baidullah Khan and another Vs. Mahmood Jan Khan and 12 others (1985 C.L.C. 821) the omission from revenue record of the name of plaintiff auring mutation proceedings was held to be of no consequence and the suit was found to be within time.
6. As already mentioned, apart from the omission of the name of the appellant from the mutation, the exclusive possession of the other cosharer and the non-Participation in the profit, there is no other evidence to show that there was 'ouster' of the appellant from the land or that the possession of respondents had become adverse. It is well settled that a cosharer is deemed to be in possession of the land. Adverse possession has to be proved by producing cogent and convincing evidence which was lacking in the present case. The suit of the appellantcould not have been held to be barred by the nor could the respondents acquire ownership of the share of the appellant in the land through adverse possession.
For the same reasons, the finding of the Courts below that suit was barred by proviso to section 42 of the Specific Relief Act is also not sustainable. The appellant being a co^sharer is deemed to be in possession of the land alongwith respondent and suit for declaration was competent especilly when the land had not been partitioned. In view of this finding, the value for the purposes of court fee and jurisdiction was also correct.
As a consequence of the above, this appeal is accepted, the judgments and decrees of the to Courts below are set aside and the suit filed by the appellant is decreed leaving the parties to bear their own costs.