1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of a judgment of a learned Single Judge of the former High Court of West Pakistan, Peshawar Bench, affirming in second appeal the decision of the learned District Judge, Campbellpur, who had in the first appeal upheld the decision of the trial Court dismissing the appellant's suit filed to challenge the correctness of the mutation of inheritance in respect of his father's lands in favour of his sister and daughter, respondents 1 and 2 herein.
2. The appellant was the only son of one Froze, a resident of village Malah, Tehsil Attock, District Campbellpur. When the appellant was 14 years old, be went away to Hong Kong in the year 1915 to earn his livelihood, but returned to his village sometime in the year 1927 when he got married and had a female child out of this marriage, the respondent No. 2, Wala Jan, herein. When the latter was a few months old, the appellant again left for Saigon and thereafter went to China. During this period he remained in contact with his father through correspondence, but after the spread of the Second World War into this region, he could no longer keep up the correspondence.
3. On the 14th of October 1942, Feroze executed a will bequeathing his haveli, and all his lands except Khasra Nos. 92 and 93-in equal shares to his daughter Mst. Hubab Jan wife of Behram Khan and his grand-daughter Mst. Wala Jan, the daughter of the appellant herein. The land so be--queathed measured some 52 kanals and 6 marlas. This will, however, contained a note at the end to the following effect :- "Although my son Nur Ahmad is not of good behaviour, yet, if he comes back then all these lands and house (bequeathed by the will) will be his property, but if he does not come back, then they will belong to these two (the legatees under the will)."
4. After executing this will, Feroze died in the month of June 1946, and the mutation of inheritance was attested on the basis of this will on the 29th of September 1946, in favour of Mst. Hubab Jan and Wala Jan, presuming the appellant to be dead.
5. This mutation was challenged on the 20th of January 1947, by a suit by Said Jalal and Hawas Khan, who claimed to be collaterals of Feroze, on the ground that Feroze, being governed by agricultural custom, had no power to dispose of his ancestral properties by will if he was sonless. The suit was contested by Mst. Hubab Jan and Wala Jan who, in their written statements, took up the position that Nur Ahmad was still alive. The trial Court held that the properties of Feroze were ancestral properties and that Nur Ahmad must be presumed to be dead. Therefore, Feroze, being governed by agricultural custom, was not capable of bequeathing his ancestral properties by will. The suit was accordingly decreed to the extent of a half share in favour of the collaterals.
6. During the pendency of this suit, it is alleged that Behram Khan, the husband of Mst. Hubab Jan, again established contact with Nur Ahmad who had in the meantime returned to Hong Kong and requested him to send him a Power of Attorney to look after his properties and also to help him financially. This the appellant claims he did and actually sent him some money as also a, mukhtarnama.
7. Mst. Hubab Jan and Wala Jan went up in appeal from the decree in the suit of Said Jalal and Hawas Khan and succeeded in getting the suit dismissed. The Appellate Court held that the properties of Feroze were self-acquired properties and, therefore, he had power to dispose of the same. The decision to presume Nur Ahmad to be dead was not challenged in the appeal and was, therefore, left undisturbed. The collaterals did not challenge this decision any further and the lands continued to remain mutated in the names of Mst. Hubab Jan and Wala Jan.
8. The heirs so mutated, it is alleged, under the influence of Behram Khan, the husband of Mst. Hubab Jan, thereafter transferred several portions of the suit properties to respondents Nos.4 to 10.
9. Nur Ahmad ultimately managed to get Pakistan nationality at Hong Kong and returned to Pakistan, and not being able to get back his properties from Behram Khan, filed a suit on the 22nd of April 1965, against Mst. Hubab Jan, Mst. Wala Jan, Behram Khan, his brother-in-law, and all the intermediate transferees. The suit was contested by Mst. Hubab Jan, Behram Khan and all but one of the transferees. Mst. Wala Jan, the daughter of Nur Ahmad,,and respondent No. 10 admitted the claim of the appellant. Respondent No. 10 only wanted that the money he had paid for the portion sold to him and the money he had spent on its improvement thereafter should be made good to him.
10. The other transferees, namely, respondents 4 to 9, also set up the plea that they were, in any event, bona fide purchasers for value without notice and, therefore, they could not be deprived of the portions purchased by them. The suit was dismissed by the trial Court on the 30th of November 1966. It was held that the finding regarding the death of the appellant had become res judicata by reason of the decision in the earlier suit and that the suit was, in any event, barred by time as more than twelve years had elapsed since the impugned mutation was effected and the transfers made.
11. This decision was upheld in first appeal by the District Judge, Campbellpur and in second appeal by the Peshawar Bench of the West Pakistan High Court on the ground that the second appeal was concluded by concurrent findings, although the two issues agitated in the first .Appellate Court and in the High Court were both issues of law, namely :-
(1) Whether the suit is time-barred ? And
(2) Whether the plaintiff was legally presumed as dead person and the property in suit was properly inherited by defendants Nos. 1 and 2 in accordance with a will ?
12. Leave was accordingly granted to examine whether the High Court was right in taking the view that the findings on these issues had also become conclusive by reason of the concurrence of the Courts below and whether these issues had been correctly decided.
13. Learned counsel appearing in support of this appeal has drawn our attention to the finding of the District Judge, Campbellpur, that "verdict on the question of presumption of death of the plaintiff" must be treated as having become final by reason of the operation of the judgments of the trial Court and the Appellate Court, Exhs. D. 11 and D. 12, in the earlier suit of Said Jalal and Hawas Khan.
14. The High Court, it appears; also took the view that "findings of the two Courts below"-on issues Nos.
15. 2 and 7 are based on two previous judgments Exh. D. 11 and Exh. D. 12" and, therefore, operated as res iudicata. Learned counsel contends that the principle of res iudicata was wrongly imported in this case, because, the appellant Nur Ahmad was not a party in the previous suit and, therefore, the decision in that suit could not possibly operate as res judicata against him. In any event, the presumption of death, which can be drawn by reason of there being no information available about a person for a long period of time, is only a presumption of fact and, therefore, a rebuttable presumption. This presumption was clearly rebutted by the re-appearance of the appellant. In the circumstances, after his appearance, there could no longer be any presumption that he was dead, nor can anyone claim adverse possession against a person so mistakenly presumed to be dead.
16. AIR 1947 P C 19). In this case, Ramendra Narayan Roy, who was the second son (Kumar) of the proprietor of the revenue estate known as the Bhowal Raj, was taken to be dead on the 8th of May 1909. His body was taken. Out in funeral procession to the burning ghat and placed in position for cremation on the funeral pyre when a violent storm broke out and caused the funeral party to take shelter. When the rain had abated, the funeral party returned to find that the body had disappeared from the funeral pyre. Some sadhus who were passing that way took the body away with them finding that it was of a person who was still alive. The Kumar survived and lived with the sadhus in the Himalayan mountains for many years. He re-appeared soave eleven years later and was ultimately recognised by his sister in 1921. His wife, however, refused to recognize him. He accordingly filed a suit in 1930 seeking a declaration that he was the second son of the Rajah of Bhowal and that his possession in respect of one-third of the estate of the said Rajah should be confirmed. ' The issues, inter alia, in that suit also were as to whether the suit was barred by limitation and whether the "second Kumar was alive. There also, title by adverse possession was set up against the claimant, but the Privy Council observed that "possession must be adverse to a living person, and, as she (the widow) was possessing under B a mistake as to his (the second Kumar's) death, it is difficult to say how she can claim that by her possession she was asserting a right adverse to one whom she regarded as dead."
17. No objection was taken in that case on the basis of any presumption arising of the second son of the Rajah being dead.
18. Once this presumption is got rid of, the question of limitation also disappears, because, the possession of one co-heir is in law the possession of all the co-heirs. Mere non-participation in the profits of the property by one co-heir and exclusive possession by the others will not be sufficient to c constitute adverse possession. In order to justify an inference of adverse possession against a co-heir, some definite act of ouster from the disputed property has to be established. No such evidence was adduced in this case. All that the evidence establishes is that the properties were mutated in the name of the legatees under the will of Feroze on the presumption that the appellant Nur Ahmad was dead. The principle laid down by this Court in the case of Mst. Omai v. Hakeem Khan (1970 SCMR 499), therefore, applies and there is no adverse possession.
19. There is one other factor which has not been noticed by any Court that at least two Khasra numbers, namely, Khasras Nos. 92 and 93 belonging to Feroze, were not disposed of by the will, and in respect of these Khasra numbers, Nur Ahmad, by reason of the fact that he was alive, automatically became a co-heir.
20. As regards the will all that need be pointed out is that the bequest under the will was conditional. It was to lapse if Nur Ahmad came back. The will, therefore, could not stand in the way of Nur Ahmad's claim. The D trial Court also so held under issue No. 5. Its finding was as given below :- "The will was conditional that if the plaintiff was not found, only then the defendants Nos. 1 and 2 would inherit. Since the plaintiff is alive and has come back from abroad, I think, the plaintiff was entitled to get back the property under the will and inherit it as if no will was made."
21. This finding of the trial Court was not challenged in appeal either before the learned District Judge or before the High Court. This finding also is, in our opinion, correct.
22. Learned counsel appearing for the respondents Nos. 1, 3 and 5 to 9 does not dispute that the principles of res judicata cannot apply in this case and that no question of limitation or adverse possession arises, as no evidence of ouster of a co-sharer was led. He, however, contends that, so far as the respondents 5 to 9 are concerned, their acquisitions are entitled to be protected, as they were bona fide purchasers for value without notice. The trial Court also found them to be such bona-fide purchasers under issue No. 6. The conclusion of the trial Court on this point is to the following effect :- "I am, therefore, of the opinion that the alienations in question were made by ostensible owners in exercise of their full ownership to the defendants Nos. 5 to 9 who purchased it after due enquiry about the rights of ownership of the alienors as was clear from the statement of D. W. 2 Abdul Qayum and they were the bona fide purchasers for value without notice of the rights of plaintiff in the property in dispute."
23. This contention of the learned counsel appears to be of substance. After the decree of the appellate Court in the suit of Said Jalal and Hawas Khan and the mutation in favour of Mst. Hubab Jan and Wala Jan, they had no reason to doubt the title of their alienors or to think that Nur Ahmad had still any right, title or interest left in these properties. This fact is not also seriously challenged by the appellant.
24. It may also be mentioned here that during the pendency of the appeal in this Court, respondent No. 4 Abdul Qayyum also arrived at a settlement with the appellant and, therefore, we need say nothing further with regard to his claim. His rights, if any, will be governed by this agreement.
25. The total area acquired by the respondents 5 to 9 is said to be about 25 kanals and 9 marlas. Their title to this area will be protected under the principles of section 41 of the Transfer of Property Act.
26. The result, therefore, is that, for the reasons given above, this appeal will be allowed and the suit of the appellant will be decreed as against respondents Nos. 1 to 3 and 5 to 10 to the extent of a two- third share in the properties left by Feroze less any area in possession of respondents 5 to 9 which is in excess of the one-third share of Mst. Hubab Jan. The one-third share of Mst. Hubab Jan will be adjusted against the portions transferred by her to the respondents 5 to 9. The suit will be decreed against respondent No. 4 in terms of the agreement entered into between him and the appellant on the 21st October 1971.
27. Since success has been divided, the parties will be left to bear their own costs in this appeal.