1. NASIR ASLAM ZAHID, J.--- The petitioners have sought leave to appeal against the judgment dated 13-6-1990 of a learned Single Judge of the Peshawar High Court dismissing their revision application. By the said revision, the petitioners had challenged the concurrent findings of the two Courts below. In their suit, the petitioners averred that the suit property was originally owned by the predecessors-in-interest of the petitioners and respondents Nos.1 to 115 but the property had been mortgaged and father of the petitioners got the property restituted in 1952 and as the petitioners remained in exclusive possession of the property for over 12 years, they perfected their title by adverse possession against the other owners and the ownership rights of respondents Nos. 1 to 115 in the suit property extinguished on perfection of the title by the petitioners. It is an admitted position that in the record-of-rights, the property has all along remained in the joint names of the petitioners and respondents Nos. 1 to 115. Then in 1980 portions of the property were sold through registered sale-deeds by respondents Nos. 15 and 22 in favour of respondent No. 116 Shera. The petitioners challenged the genuineness of the record-of-rights which has all along shown the petitioners and also respondents Nos. 1 to 115 as the joint owners of the property and sought a declaration that petitioners alone were owners in possession of the property and respondents Nos.
2. 1 to 115 did not have any rights in the property. An injunction was also sought by the petitioners that respondents Nos. 1 to 115 be restrained from interfering in the ownership of the petitioners and that sale of portions of the property by respondents Nos.15 and 22 in favour of respondent No.116 through registered sale-deeds executed in 1980 were illegal and liable to cancellation.
3. The suit was dismissed by the Senior Civil Judge and an appeal filed by the petitioners was also dismissed by the Additional District Judge, Mansehra. The concurrent findings of the two Courts below are that all the owners/mortgagors, i.e., predecessors-in-interest of the petitioners as well as respondents Nos. 1 to 115 were in possession of the suit property and not the mortgagees; that all the mortgagors redeemed the mortgage and not the predecessor of the petitioners alone and that all the owners, after redemption, were in possession of the redeemed land. It was also found that in respect of the some portions of the disputed property which were sold, petitioner No. 1 pre-empted the sales through his sister and he had also brought a pre-emption suit in respect of the sales effected through registered sale-deeds in 1980 by respondents Nos. 15 and 22. It was, therefore, held that the petitioners had not established their title through adverse possession.
4. Not satisfied with the judgments of the two Courts below, the petitioners filed a revision petition before the Peshawar High Court but a learned Single Judge of that Court dismissed the revision application. From the observations in the judgment dated 13-6-1990 of the Peshawar High Court, it follows that the entire record had been scrutinised by the learned Single Judge. According to the High Court, in various Jamabandis, all the owners/mortgagors of the land had been shown to be in possession of the suit property and in fact possession of the property had never been handed over to the mortgagees and it was because of this fact that Adam Khan, father of the petitioners, was given symbolic possession in execution of the restitution order. Record-of-rights also shows that even after the restitution order, respondents Nos. 1 to 115 have continuously remained as "hissadars". It was also found that Adam Khan, father of the petitioners, had not paid any mortgaged amount to the mortgagees and, as observed earlier, the land was restituted in the names of owners without redemption of the mortgaged amount under the provisions of N.-W.F.P.
5. Restitution of Mortgaged Lands Act, 1950.
6. In this petition, we have heard Qazi Abdur Rashid, learned counsel for the petitioners. He made an attempt to establish that in 1952 father of the petitioners was the only owner who had restituted the property and his possession remained adverse to the other owners and as such the title of the petitioners was perfected in 1964, after expiry of over 12 years. The concurrent findings of the two Courts below were confirmed in revision by the High Court after going through the record. Evidence on record does not show that possession of the petitioners and/or their predecessor-in-interest was at any time adverse to the other owners. In the record-of-rights, the property has remained the joint property of the owners. The pre-emption suits tiled by the petitioners or at their instance against sales of portions of the suit property also demolish the claim of the petitioners.
7. There is yet another very weighty factor which goes against the petitioners. It was case of the petitioners themselves that the suit property was in possession of a tenant by the name of Shera, respondent No. 116. According to the petitioners, after the restitution of the mortgage, respondent No. 116 had attorned to the father of the petitioners. However, in the suit, Shera did not support the case of the petitioners and supported respondents Nos. 1 to 115.
8. Reference may be made to a recent judgment of this Court dated 7-10-1990 in Civil Appeal No. 395/1987 Mirza Ghulam Hussain and another v. Ch. Iqbal Ahmad where the law relating to adverse possession has been enunciated as follows:- ................. When the possession was initially permissive, it can be converted into adverse possession only through an aggressive act by which there should be disclaimer of owner's title of such a character and so open that the real owner must be presumed to know that possession adverse to his title has been established. Nothing but a clear, unequivocal and notorious disavowal of the title of the owner will render the possession adverse -- a long continued, possession hostile to him. In other words there must be express and open denial of the title of true owner and animus of exclusive ownership ...................................................... ........................The principle underlying the rule that if origin of possession is based on legality, no adverse possession begins until denial to knowledge of owner, seems to be that unless the owner has the notice that a person in possession has developed a definite intention to challenge his ownership and set up an immoral illegal possession like that of trespasser, it would not be open and hostile possession. And the concept of might is right would not till then be relevant. It should be a real usurpation, ravishment, rapacity and destruction as against justice, equity, good conscience and fair play. Until this clear, open and hostile clash between good and bad emerges starting point of adverse possession is not established. This view is further strengthened by a plethora of authority on the basis of which another rule, namely, that a co-sharer cannot be held to be in adverse possession against another co-sharer, is based. Because where one of the several heirs takes possession, his possession is not adverse to his co-sharers as he traces back the same to a lawful title and thus he would not be treated as a trespasser. The further corollary, again developed through case-law on this principle regarding co-sharer is that if a co-sharer also becomes a usurper and openly as well as in a hostile manner revolts against a co-sharer; and either by deceit or by force or other similar elements of treachery, completely ousts a co-sharer; only then, on the basis of another principle of complete ouster, he a co-sharer also can be treated to have set up adverse possession."
9. Even if the case of the petitioners as put by them is accepted that their father had redeemed the property and had taken possession to the exclusion of the other co-sharers, it would not have amounted even then as possession adverse to the other co-sharers. Such possession would be deemed to be possession on behalf of all the or3ners. As the possession of a co-sharer is not adverse to his other co-sharers unless there is complete ouster of the other co-sharers in an open and hostile manner; the claim of the petitioners at its best did not make out any case of adverse possession.
10. We find no merit in this petition which is dismissed.