1. SALAHUDDIN AHMED, J.-This appeal, by special leave, is from the order of a learned Single Judge of the then High Court of West Pakistan, Peshawar Bench, allowing the plaintiffs-respondents' second appeal and granting them declaration teat they were owners of the shamilat appurtenant to the haqiat land, and were thus entitled to the proportionate share in the shamilat.
2. It appears that Mst. Qasim Jan, widow of Shah Nawaz and daughter of Hussain, had sold 32 kanals and 18 marlos of haqiat land in Garbi Momin, Tehsil Nowshera, District Peshawar, along with her proportionate share in the shamilat to one Umaraz, the admitted predecessor-in-interest of respondent Mst. Rabim Jan and six other respondents, for a consideration of Rs.90 by an unregistered sale-deed dated the 29th of April 1882. The sale deed described the property as "pidri".
3. In the year 1955 there were partition proceedings in regard to the shamilat attached to Garhi Momin, and at first the said respondents were given the proportionate share in the shamilat representing the share of the said Mst. Qasim Jan, but subsequently the learned Member of the Board of Revenue by his order dated the 1st of August 1963, directed the respondents to have their title in regard to the shamilat established in a civil Court. The respondents accordingly instituted Suit No. 281 against Abdul Manan and others (defendants-appellants Nos. 1 to 13 and respondents Nos. 8 to 12) on the 11th of December 1963, for a declaration, inter alia, that the former were owners in possession of 59 kanals and 12 marlas of land of the Khasra numbers described in the plaint, by the aforesaid purchase by Umaraz or in the alternative that they acquired right by adverse possession along with the proportionate share in the village shamilat for over 12 years, and for a permanent injunction restraining the defendants, inter alia, from interfering with the rights of the plaintiffs.
4. The trial Court decreed the suit on the 30th of October 1964, in respect of the haqiat land only and dismissed it in regard to the share in the shamilat. It was held that Mst. Qasim Jan was a full- fledged and not a limited owner and, therefore, the sale in favour of Umaraz was binding and effective. As regards the shares in the shamilat, it was held that the plaintiffs failed to prove that they were in possession of the shamitat as well, and that accord--ing to the jamabandi of 1958-59 (copy .Exh. P. W. 3/9) only those persons were the original owners in the village according to the pedigree table who were the owners in the shamilat.
5. Two appeals were preferred from this order of the trial Court, one by the plaintiffs for relief in regard to the share in the shamilat, and the other by the defendants challenging the validity of the decree in regard to the haqiat land. Both the appeals were dismissed by the learned District Judge, Peshawar, on the 15th of October 1955. As regards the haqiat land, the learned Additional District Judge observed that the question whether Mst. Qasim Jan was a limited or full owner was inconsequential. She had transferred the haqiat land as well as the proportionate share in the shamilat by the aforesaid sale-deed, and the vendee had entered into possession. The sale was not challenged by the reversioners of Shah Nawaz, who are the defendants-appellants. As regards the shamilat land, it was held that Mst. Qasim Jan had not passed the possession of the share in the shamilat to the vendee, Umaraz. It was further observed that in the year 1870 Customary Law was applicable and therefore it must be presumed that she had succeeded to the estate of her husband, Shah Nawaz, as a limited owner, and as she was not in possession of the shamilat, the sale was ineffective as regards the share in the shamilat.
6. The second appeal preferred by the plaintiffs-respondents was allowed by a learned Single Judge of the High Court and the suit was decreed in the manner already stated. The learned Single Judge, inter alia, observed that inasmuch as Mst. Qasim Jan had transferred her proportionate share of the shamilat along with the haqiat land, and the jamabandi of 1886 and the Settlement Record of 1895-96 had given effect to the sale, it must be presumed that the entries in the said records were made as a result of muta--petition, and the mutation must be presumed to embrace the share in the shamilat. It was observed that the aforesaid sale was also in respect of shamilat land, but as the aforesaid reversioners had never cared to challenge the sale of the haqait land, the title of the transferor both in regard to the haqiat land and the share of the shamilat became indefeasible.
7. It appears to us that the High Court as well as the Courts below proceeded on an erroneous premise that the property had belonged to Shah Nawaz, husband of Mst. Qasim Jan. In the aforesaid sale-deed subject matter of the sale has been described as "Arazi Pidri", and the vendor Mst. Qasim Jan has been described as the wife of Shah Nawaz and daughter of Hussain. The latter description of the vendor was not at all necessary if the property had belonged to the vendor's husband, Shah Nawaz. It is, therefore, evident that the description of the vendor as the daughter of Hussain is consistent with the statement in the sale-deed that the property is "Arazi Pidri". The defendants based their claim to the disputed property as reversioners of the said Shah Nawaz, and therefore the onus was on them to prove that the disputed property had belonged to Shah Nawaz before the date of the aforesaid sale. Mst. Qasim Jan had died about 70 years before the present suit was instituted, and the heirs of Shah Nawaz did not do any thing after her death to establish their right, title and interest in the property in dispute as reversioners of Shah Nawaz. Furthermore, although the sale deed was executed in the year 182, they neither claimed nor did any thing to establish their right in the property in dispute since the date of the sale The appeal may, therefore, be disposed of on this short ground that the appellants have failed to prove that the property belonged to Shah Nawaz before the date of the sale.
8. We may add that the jamahandi of 1886 shows Rehmat, Abdullah and Abdul Munaf, sons of Umaraz, as the recorded owners of the land, which had originally belonged to Mst. Qasim Jan, and also of some lands which had originally belonged to Muhammad, brother of the said three sons of Umaraz. Again, in the Record-of-Rights of 1896 (Exh. P. W. 3/3) Abdul Munaf, son of Umaraz, was shown as exclusively in possession of the land in dispute. In the jamabandi of 195455 the plaintiffs are shown as successors-in-interest of Abdul Munaf, son of Umaraz. All these lend support to the fact mentioned in the sale deed that the property) was "Arazi POW' and the vendor was the absolute owner of the property Besides, the sale-deed shows that both the haqiat land and the proportionate share in the shamilat were sold and, therefore, the possession of the vendee in regard to haqiat land as well as the proportionate share in the shamilat land was under the regular sale-deed, and not by way of adverse possession.
9. It is, thus, clear that although the Courts below have proceeded on certain erroneous considerations, the conclusion arrived by the learned Single Judge of the High Court is correct.
10. The appeal is accordingly dismissed without any order as to costs.