' SAAD SAOOD JAN, J.---This appeal by special leave is from the judgment, dated 6-6-1981 of the Peshawar High Court which affirmed the judgment and decree of the Senior Civil Judge, Malakand, dismissing the suit of the appellant.
2. The property in dispute is 144 Kanals of land and 11 residential houses situate in Village Thana of Malakand Agency. It belonged to one Mansab Ali who died issue-less in 1907. He was survived by his widow, Mst. Bacha Bibi. She died a year later. The local Jirga which comprised the Khans of the area took away half of the property and allowed the other half to remain with Mansab Ali's mother, Mst. Bibi, by way of maintenance. One said Faqir Bacha initiated proceedings claiming the property of Mansab All as his heir but without any success. Mst. Bibi died in 1938. Upon her death the property which was allowed to remain with her was also taken over by the Jirga and distributed amongst its members according to the local Riwaj. In 1939 Said Faqir Bacha and the appellant's father Said Umar filed a joint suit for possession of the property left by Mst. Bibi. It was dismissed on 17-10-1941 by the Political Agent, Malakand. In 1944 the appellant, whose father had in the meanwhile died attempted to revive the claim but his application in this regard was dismissed by the Political Agent on 10-7-1944.
3. On 12-2-1977 the appellant brought a suit for possession of the property in dispute in the Court of the Senior Civil Judge, Malakand. In the amended plaint filed by him he alleged that his father Said Umar and Mansab Ali were real brothers and his father owned one half share' in the property in dispute: that he was the only heir of his father, uncle and Mst. Bibi and as such after their death he had become the sole owner of the property in dispute; and that the respondents who were members of the Jirga had forcibly occupied it without even a semblance of a right.
4. The suit was resisted by the respondents. They alleged that the property in dispute belonged to Mansab Ali and that the appellant was not his heir. They also took the plea that the suit was barred by time and that they had perfected their title to the property in dispute by prescription. They further pleaded that in view of the earlier decisions of the Political Agent whereby the claim made by the appellant and his father was rejected the suit was hit by the rule of res judicata.
5. On the pleadings of the parities, the trial Court framed as many as 14 issues. After recording the evidence of the parties it held that the appellant was the sole heir of his father and uncle Mansab Ali; that in view of the earlier litigation between the parties before the Political Agent the present suit was barred by the rule of res judicata; that the suit was out of time; and, that the respondents had become owners of the property in dispute by adverse possession. On the basis of these findings, it dismissed the suit.
6. From the judgment of the trial Court the appellant took an appeal before the High Court. After re- appraising the evidence a learned Single Judge affirmed the findings of the trial Court on the issues of limitation and adverse possession. However, on the issue of the res judicata he reversed the finding of the learned trial Judge with the observation that there was no material available on the record showing that the matters now in issue between the parties had ever been finally decided between them or their predecessors-in-interest by any competent authority. As a result of these findings, he dismissed the appeal.
7. In support of his assertion that his father Said Umar and Mansab Ali were real brothers and that his father owned one half share in the property in dispute, the appellant relied upon his own statement and the testimony of two witnesses, namely, Amin Khan (PW.2) and Wafadar (PW.3). As regards his assertion that his father and Mansab Ali were real brothers, it stands belied by the two pedigree tables, Exh.PW.1/1 and Exh.P.II produced by himself. According to the pedigree table (Exh.PW.1/1) his father and Mansab Ali were collaterals in the fourth degree and if Exh.P.11 is to be believed their relationship was even further remote. However, that may be, there is also no reliable evidence that his father was joint owner with Mansab Ali in the property in dispute. As already mentioned, to prove his case the appellant has relied only on oral evidence. But then this oral evidence is inconsistent with the conduct of his father Said Umar. As noticed above, on the death of Mansab Ali and his wife half of the property was taken over by the local Jirga while the remaining half was allowed to remain with Mst. Bibi. Now, till the death of Mst. Bibi in 1938 Said Umar took no action whatsoever to recover the property appropriated by the Jirga even though, as alleged by the appellant, one-half share therein belonged to him. On the other hand, it was Said Faqir Bacha, a remoter relative of Mansab Ali, who initiated proceedings to challenge the action of the Jirga. If Said Umar had really a share in the said property, his failure to assert his claim for over three decades is inexplicable. It is therefore, difficult to accept the contention of the appellant based as it is on oral evidence only that his father owned one half share in the property in dispute.
8. There is also sufficient evidence on the record indicating that immediately after the death of Mst.
Bibi, members of the Jirga took possession of the property earlier left with her and divided it among themselves. Reference in this context may be made to the suit which the appellant's father and Said Faqir Bacha had instituted in 1939. A copy of the order made by the Political Agent is Exh.P.W.1/2 on the record. It is to be noticed that the suit brought by them was one for possession of the property left by Mst. Bibi. If the appellant's father had been in possession of the property in dispute, the relief for possession would not have been claimed. Apart from that, the order of the Political Agent made on 17-10-1941 clearly indicates that the possession of the property left by Mst.
Bibi had already been taken over by the Jirga. The relevant passage from his order reads as follows:-- "For the above reasons, and also becuase the Jirga defendants have already taken the law into their own hands and distributed the property in dispute, I cannot proceed further in this case, and direct that it shall be filed."
' Even prior to the order of the Political Agent, the Indian Assistant too in his note of 9-8-39 (Exh.P.W.1/3) had made observation to that effect. The relevant extract from his note reads as follows:--- "The Jirga of Thana state that Said Faqir Bacha filed his suit in 1907 against them and consequently it was decided that two Khans of the Jirga Thana duly selected by the plaintiff should take oath that Said Faqir was not the real heir. The Khans were ready to take the oath but Said Faqir refused to take oath from them. The property of the widow of Mansab Ali was therefore distributed by the Jirga. As Mst. Bibi who was in possession of 1/2 of the property left by Mansab Ali deceased, died in 1938, the Jirga therefore, distributed her property as was formerly done by the Jirga. The claim of Said Faqir Bacha is time barred and wrong.
' One Said U mar of Bakhta also claims to be the real heir of the deceased and applies for possession of the property which the Jirga of Thana consider wrong and state that this is the Ist chance that he has dared to claim the property after 50 yeaRs,"
' It will thus appear that the Jirga had taken over the possession of self of the property in dispute soon after the death of Mansab Ali and of the remaining half after the death of Mst. Bibi in 1938.
That being so, the suit of the appellant brought in 1977 was clearly barred by time. The learned trial Court and the High Court therefore were right in holding that the appellant's suit was hit by the bar of limitation.
9. Learned counsel for the appellant contended, that as the appellant was a co-sharer in the property in dispute the plea of limitation could not be taken against him, particularly when he was admittedly in possession of two houses which formed part of the property in dispute. In support of this contention he referred to the Riwajnama of the Agency and three cases reported as Usman Kasim Sait v. Secretary of State AIR 1923 Mad. 624, Orendra Chandra Singh v. Bulaqi Ram AIR 1942 All. 1 and Nagar Palika, Bina v. Shrinandlal AIR 1961 Madh. Pra.
212. The relevant extract from the Riwajnama reads as follows:- {{URDU TEXT}} ' It is not disputed by the respondents that the appellant was in possession of two houses forming part of the property in dispute. But then their case is that he was occupying the same as a tenant and not as an owner. However that may be, the appellant's possession over two houses would hardly advance his case in respect of the rest of the property in dispute.
10. The entries in the Riwajnama are of no assistance to the appellant in getting over the bar of limitation. A perusal of the Riwajnama would show that even in the Agency an owner would lose his rights in the immovable property if he was out of possession for more than 10 yeaRs, This rule was subject to the rider that adverse possession could not be claimed by the one co-sharer against another. But in the case before us the members of the Jirga had not taken over the property of Mansab Ali immediately after his death or the death of Mst. Bibi as co-sharers but in exercise of a right which they claimed to enjoy under the Riwaj in respect of the property of a person who had died without leaving any heir. The three judgments referred to by the learned counsel are easily distinguishable. In those cases, the question for consideration was whether the public in general or any indefinite or fluctuating body of person could claim adverse possession. Here the members of the Jirga had not only taken over the property in dispute but also divided it among themselves.
They were thus clearly in adverse possession with reference to those who were entitled to succeed to the estate of Mansab Ali. The appellant's father was fully aware of this position when he brought a suit in 1939 before the Political Agent. The appellant cannot therefore contend that as he was a co-sharer, the pica of adverse possession cannot be canvassed against him.
11. For the reasons stated above, we find no merit in this appeal which is hereby dismissed with costs.