1. ' SALAHUDDIN AHMED, J.-This is an appeal by special leave of this Court. On the 15th of December 1959, respondent Bakht Zamir instituted a suit against appellant Kashmir and one Mamoot Tor possession of 82 k anal, and 5 mar las of land bearing khasra Nos. 2712, 2876/2707, 2703 and 2713/2 on the basis of his ownership as recorded in mutation No, 1806 dated the 28th of July 1959. The trial Court decreed the suit in favour of the plaintiff on the 7th of September 1960. Two appeals were filed against the judgment and decree passed by the trial Court, namely, one by appellant Kashmir and other by Mamoot. Kashmir's appeal was allowed in part and the suit of Bakht Zamir with respect to 1/2 share of khasra No, 2703 was dismissed by the learned Additional District Judge on the 28th of January 1961. f he rest of the decree in favour of Bakht Zamir against Kashmir was, however, maintained. Bakht Zamir preferred a second appeal being Regular Second Appeal No, 31 of 1961 from the judgment and order of the learned Additional District Judge and a Division Bench of the High Court by its order dated the 2nd of August 1971, accepted the appeal and restored the decree of the trial Court in its entirety. Appellant Kashmir son of Tawab, has been aggrieved by the order of the Division Bench of the Peshawar High Court dated the 2nd of August 1971.
2. ' Leave was granted to consider whether the learned Judges of the High Court rightly held Bakhat Zamir respondent to be the exclusive owner of khasra No, 2703 although it was an undisputed fact that ho was a co-owner to the extent of 1/2 share in the said khasra number.
3. ' It appears that upon the death of their father Khad Mir, who had owned a 1/2 share jointly with some others in the disputed land, Gul Zamir and Bakht Zamir inherited the property in equal shares.
4. Nevertheless in the year 1905 during the minority of Bakht Zamir, Gul Zamir sold the entire disputed land including the share of Bakht Zamir to one Chanda Mal and gave him possession. In the deed of sale it was stipulated that if Bakht Zamir would at any time object to the sale the vendor would reimburse the vendee from his share in khasra No, 1925. It is important to mention here that from this sale onwards Chanda MM and the transferees from him were recorded in the revenue record to be in possession of the entire land in the column of cultivation. Chanda Mal gifted 1/4th of the property to Lachhman Das in March 1907 and sold a half of the property to Bodh Raj and Gopi Chand under mutation dated the 19th of September 1920. In the jamabandi of the year 1920 the said one-half of the property sold to Bodh Raj and Gopi Chand stood in the name of Mukant Lal.
5. The' jamabandi of 1925-26 showed that the property was jointly owned to the extent of 1/2 share by Mukant Lal, 1/4th by Chanda Mal and 1/4th by Lachhman Das. Mukant Lal sold his half share in khasra No, 2703 and other khasra numbers to Dewan Singh and Sardar Singh by a mutation attested on the 28th of June 1935. Tawab, father of appellant Kashmir, pre-empted the sale under a compromise decree. In pursuance of this decree and with the consent of the judgment debtor, Tawab obtained possession of 16 kanals and 3 marlas out of khasra No, 2703 which measured 32 kanals and 6 marlas. In the jamabandi of 1938-39 backwards to 185758 possession of rawab and after his death possession of appellant Kashmir was recorded. The entries also showed that after the Independence the non-Muslim property was taken over by the Custodian and dealt with in accordance with the evacuee law. Bakht Zamir applied to the Custodian of Evacuee Property for partition of his share out of the khata jointly owned by him and his brother and the evacuee co- sharers Dewan Singh and Sardar Singh. By a partition mutation dated the 28th of July 1959, khasra No, 2712/1 measuring 82 kanals and 6 marlas was allotted to the evacuee and the rest of the khasra comprising 82 kanals and 5 marlas was allotted to Bakht Zamir. This partition mutation was, however, cancelled by the Custodian on the 31st of March 1962, and the land was taken back from Bakht Zamir. Bakht Zamir's revision before the Commissioner, Peshawar Division, failed. Thereafter, Bakht Zamir filed an application under section 22 of the Administration of Evacuee Property Act XII of 1957 for a declaration that the property in dispute was not an evacuee property. The application was rejected in December 1962, and an appeal from this order was dismissed in April 1963. A writ petition filed by Bakht Zamir was also dismissed in January 1969. Bakht Zarnir, however, preferred a letters patent appeal which was heard alongwith the aforesaid regular second appeal No, 31 of 1961, and both the appeals were allowed on the 2nd of August 1971. In the letters patent appeal the order of the Custodian was declared as without lawful authority and of no legal effect. The appellant was not a party in the writ petition or in the letters patent appeal.
6. It is, thus, evident from the facts and circumstances of the case that after the property in dispute had been sold in the year 1905 it kept on being transferred from person to person and possession given accordingly until just before the aforesaid partition mutation dated the 28th of July 1959. And all this was done without any objection by respondent Bakht Zamir. The respondent even after having attained majority took no steps to pursue the property, and set aside the aforesaid transactions, and it was only in July 19.59, that he somehow managed to obtain partition of the property. But this partition was short lived, and it was cancelled in March 1962. The record of rights showed the possession of different persons. The present suit was filed within 4/5 months of the aforesaid partition mutation dated the 28th of July 1959, but as has been seen already this partition mutation stood cancelled on the 31st of March 1962, when Bakht Zamir's appeal was pending in the High Court. In the facts and circumstances mentioned above the learned Judges of the High Court should not have over-looked the facts about the inaction of respondent Bakht Zamir ; and should not have so readily passed an order which had the effect of upsetting all the transactions since the year 1905 without any reasonable ground, and in disregard of the law of limitation and Act XII of 1957.
7. ' The appeal is accordingly allowed with costs throughout and the entire suit by respondent Bakht Zamir for possession of the land in dispute stands dismissed.