' Facts of the case out of which this civil revision has arisen are that Mst. Hussain Bibi daughter of Muhammad Din who is a respondent in this civil revision, filed a suit for possession of agricultural land to the extent of 1/8th share in the total land measuring 47 Kanals 4 Marlas situate in the revenue estate of Bhulowal Kalan, Kotli Loharan Western Tehsil and District Sialkot as being a daughter of Muhammad Din deceased. Case of the plaintiff is that on the death of Muhammad Din father of the respondent, his inheritance Mutation No, 329 sanctioned on 19-9-1952 has been got attested by the defendants who are petitioners in this civil revision in collusion with the revenue authorities fraudulently and have illegally got excluded the plaintiff from the inheritance of her father. This suit was contested by the defendants-petitioners on the ground that the suit is barred by time that the plaintiff has no cause of action and that she is not daughter of Muhammad Din deceased and therefore the suit is liable to be dismissed. After recording of evidence and hearing of arguments, learned trial Court dismissed the suit vide judgment and decree dated 23-6-1992.
Learned trial Court held that the suit is barred by time and further the plaintiff has no cause of action. The suit is not maintainable in the present form and the plaintiff is not entitled to inherit Muhammad Din deceased inasmuch as by adverse possession the defendants have become owners of the land in question. It was held, however, the plaintiff who is a respondent in this civil revision is the daughter of Muhammad Din deceased. Mutation of inheritance No,329 challenged in the suit was upheld on the ground that no fraud was committed inasmuch as the same was sanctioned in open assembly. Aggrieved of the said judgment and decree, the respondent filed a Regular First Appeal in the District Court of Sialkot, which has been accepted by the learned Additional District judge, Sialkot vide judgment and decree dated 19-7-1983. Learned Additional District Judge relied upon case of Sdr. Hassan Ara and 6 others v. Tajamal Hussain and 12 others (1982 CLC 653) for the proposition that since the plaintiff is a daugthter of the deceased and hence a co-sharer in the land in question, the defendants cannot claim adverse possession and as such the suit is neither barred by time nor the defendants have acquired the title in land in question by adverse possession. This judgment and decree has been challenged in this civil revision by the defendants.
2. Ch. Muhammad Rafiq Iqbal, Advocate who has appeared on behalf of the petitioners has argued that there is evidence of ouster inasmuch as the mutation of inheritance was sanctioned in open assembly and therefore the petitioners have proved adverse possession for a period of 12 years as such the learned first appellate Court has illegally set aside the judgment and decree passed by the learned trial Court. Learned counsel has further argued that the suit is barred by time inasmuch as the same has been filed after more than 12 years from the date of sanctioning of the mutation.
In support of his arguments, learned counsel has relied upon a judgment reported as PLD 1984 Pesh.
111. Learned counsel has further argued that even amongst co-sharers principle of ouster applies and in this case since the petitioners have proved complete ouster of the plaintiff-respondent, the suit is liable to be dismissed as the defendants have acquired right of ownership in the land in question by adverse possession for a period of more than 12 yeaRs, Learned counsel has further relied upon the judgment reported as Khushi Muhammad v. WAPDA etc. 1992 CLC 196 for the proposition that although in case of Maqbool Ahmad v. Govt. Of Pakistan 1991 SCM R 2063, section 28 of the Limitation Act has been declared to be against the Injunction of Islam and has ceased to be a law yet the petitioners had already completed title prior to the date on which the said law ceased to remain in force. Hence the suit is liable to be dismissed and the judgment of Supreme Court referred to supra shall not apply to the facts and circumstances of the case.
3. Ch. Muhammad Abdullah Advocate, learned counsel for the respondent has controverted the arguments addressed by the learned counsel for the petitioners and has emphasized that the respondent admittedly being a daughter of Muhammad Din deceased whose inheritance is in question is a co-sharer in the land in question and therefore no question of adverse possession or any title having been acquired by the petitioner will arise in this case. According to the learned counsel the suit is also within time.
4. I have considered the arguments addressed by both the learned counsel for the parties and have perused the record as well as the judgments cited by the learned counsel for the petitioneRs, Admittedly the plaintiff respondent is the daughter of Muhammad Din deceased whose inheritance is in question, therefore under the law on the death of Muhammad Din she will inherit automatically alongwith the petitioners and shall become a co-sharer. This proposition is now well settled and there is plethora of case-law on the subject. The basic judgment being case of Ghulam All v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Admitting the status of the respondent as a co- sharer, no question of claim of title by adverse possession arises. Even otherwise there is absolutely no evidence about the claim of adverse possession by the petitioners as being open, continuous and hostile to the knowledge of the respondent. In the case in hand, the respondents have claimed title in the land in question and have denied the status of the respondent as a daughter of the deceased therefore it cannot be said that they ever held possession of the land adverse to the respondent. In case of Ghulam Qadir v. Ahmad Yar (PLD 1990 SC 1050), it has been held as under:- "In our view when a party pleads that it had a valid title, as in the present case, through purchase and subsequent inheritance as stated by learned counsel it would become impossible for such a party to succeed in the alternative on the plea that the possession being open and hostile, title had matured otherwise on account of efflux of time through adverse possession."
' Dealing with the question of adverse possession amongst her co-sharers, their Lordships of the Supreme Court in case of Ghulam All and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 at page 23, have held as under:- "The pleas of estoppel, waiver and adverse possession can also be now easily repelled in the light of the foregoing discussion of the Islamic principles. The petitioners being the brothers of the respondent were required by the Islamic law to protect the property rights of their sister if ever they came into possession of the land in any capacity. Here admittedly they alleged voluntary relinquishment, therefore, even otherwise the well-known rules for establishing adverse possession, particularly the one relating to hostility, would not be established. But as stated earlier one who is enjoined with the protection of the other's property cannot lay claim adverse to the interests and rights of that other one who owns it. The Saying of the Holy Prophet (P.B.U.H.) has been quoted which enjoins upon the menfolk to protect property rights of their womenfolk. Under the Islamic dispensation, therefore, in the present case there could be no claim of adverse possession. Same would apply to the estoppel and waiver. Moreso on account of rule of public policy and the principle of devolution of the property in respondent's favour immediately on the death of her father (regardless of the fact whether she did any other act to exercise control over it) would negate the plea of estoppel or waiver. The plea of ouster, to say the least, is untenable; because, its essential component, the plea of adverse possession is obviously not available against a sister what to talk of her ouster."
' Respectfully following the dictum referred to above, I hold that the petitioners have miserably failed to prove that they have acquired a valid title in the land in question by adverse possession.
Bar of limitation also will not apply as held in the judgment referred to above as (PLD 1990 SC 1) wherein their Lordships have held as under:- "The main argument of the learned counsel in this behalf is that the mutation sanctioned in 1963 against the respondent and her failure to challenge it for a long period would constitute such a conduct which would render the petitioners' possession as adverse to her. In answer to the query that she having become a co-sharer immediately on the death of her father the plea of adverse possession against such a co-sharer would not be available to the petitioner, learned counsel further contended that the mutation which was sanctioned against her interest together with her conduct of not challenging the same for a very long term, would constitute her ouster and that being so the plea of co-sharership in this behalf would stand repelled. This controversy now stands finally settled by a recent judgment of this Court. It was held in Haji v. Khuda Yar (PLD 1987 SC 453) that a similar adverse entry and non-participation in the profits of the property would not amount to an ouster. While taking note of the earlier case of Anwar Muhammad and others v. Sharif Din and others (1983 SCM R 626) in extenso, it was observed that "wrong mutation conferred no right in property as Revenue Record is maintained only for purposes of ensuring realization of land revenue.
' The suit in the said case was treated as having been "based on title and not for correction of Revenue Record". Accordingly it was not held to be a case of adverse possession and the suit was found to be within limitation.
' In the case of Anwar Muhammad the defendants in an inheritance case of similar nature, having failed in the High Court their plea of adverse possession and limitation was repelled by this Court with the following statement of facts, observations and findings:- ' The inheritance of Lakhwera was in dispute between the parties who are decendants from the same common ancestor. The plaintiffs respondents claimed that as heirs they were entitled to a particular share in this estate of Lakhwera and the mutations attested in 1907 and 1908 with regard to the devolution of his estate were not in accordance with the law. The petitioners resisted the claim not on the ground that the plaintiffs were not heirs of Lakhwera according to Shariat or that their shares were different from those claimed by them but on the ground that a suit for declaration was not competent as they were in possession of the suit land, and that it was hopelessly barred by time. A number of issues were framed and the two Courts dismissed the claim of the plaintiffs respondents but in second appeal it was held that the plaintiffs respondents admittedly held the land jointly with the petitioners and that their possession over the land was through their co-sharers and the declaration of the property could be obtained by them and the Revenue Record had to be consequently corrected to reflect it. The learned counsel for the petitioners has reiterated the points taken up earlier. His insistence is that in the Bahawalpur State before the enforcement of the Land Revenue Act, as the Settlement record shows the settlement with regard to the payment of land revenue was made with those persons who were in cultivating possession over the land excluding altogether others who were out of such possession.contended that when Lakhwera died the petitioners were in possession of the land and were so recorded excluding,the plaintiffs-respondents, This the learned counsel for the petitioners wants to transform into principle of inheritance. Such a claim is based neither on custom nor on Shariat. What law revails in he matter of re aration of Revenu Record or what practice is followed by the officers cannot be determinative of the devolution of the estate of a deceased person. It appears that the plaintiffs-respondents were the heirs of Lakhwera and entitled to inherit in the same manner as the petitioneRs, The land being joint there was no question of their remaining out of possession or the suit being time-barred. The possession of the one co-sharer is for the benefit of all the other co- sharers and a co-sharer is deemed to be in possession throunh his other co-shareRs, Simply because the mutations were attested in 1907 or 1908 does not bless the transaction with sanctity.
These mutations conferred no right in the property and are at best arrangements made on the fiscal side for ensuring realization of land revenue and ensuring the correctness of the Revenue Record for that purposes." (Underlining is ours).
' To the similar effect is the decision in Najabat and others v. Saban Bibi and others (PLD 1982 Supreme Court 187). It was held in the circumstances of that case that the co-sharers/co-owners were not at all obliged to file a suit to seek a declaration to the effect that a mutation had wrongly been sanctioned. It was also held that a suit filed, due to denial of rights of the plaintiff/co-sharer, for declaration would be within time and the Revenue Authorities on success of such suit would be required by law to correct the wrong mutation entries. As against this learned counsel has relied upon an unreported judgment of this Court dated 22-11-1969 (Mst. Maqbool Jan alias Mst. Manzara v. Faqir Muhammad Civil Petition for Leave to Appeal No, 37-P of 1969) in which no doubt a somewhat different view was taken with regard to the value of mutation of inheritance based on custom was attested in the same year. The challenge to the same by a cosharer/successor failed amongst others on the limitation. There are distinguishable features--particularly one that the said inheritance was under customary law. It is also doubtful whether in the circumstances of that case the decision was intended to operate as a law declared; and in any case, the law declared in the subsequent decisions of this Court already noticed, will govern the present case. As the question involved in this case relates to the claim of adverse possession and ouster by brothers against a sister, some more features of the legal controversy are to be examined, vis-a-vis, Islamic Law. Holy Prophet (p.b.u.h.) in the Khitab at Hajjatul Wada clearly declared some important rights of female, vis-a-vis, male. It is against the spirit of those rights to hold that a brother can legally claim "adverse possession" against his sister and much less "ouster". Under the new dispensation in Pakistan such a claim may not be entertainable at all without encountering jurisprudential hurdles.
' It is not for the first time that it is being so held. Even earlier commentators on Islamic Law (its inheritance branch in particular) have indicated the same approach with reference to some decided cases. The heir in possession was considered to be in constructive possession of the property on behalf of all the heirs in spite of his exclusive possession, e.g., the possession of the brothers would be taken to be the possession of their sisters, unless there was an express repudiation of the claims of the sisters by the brotheRs, Hyder Khan v. Chanda Khan (501 IC 691 (All)....
' Therefore, the suit is not barred by time. Even otherwise, provisions of section 28 of Limitation Act having been declared to be against the Injunctions of Islam and having ceased to be enforced, no relief on the ground of adverse possession can be claimed by the petitioneRs, Reliance in this behalf is placed on case of Maqbool Ahmad v. Government of Pakistan (1991 SCM R 2063) referred to by the learned counsel for the petitioners himself. Other judgments cited by the learned counsel are distinguishable on facts. Even on merits, learned counsel for the petitioners has not been able to point out any misreading or non-reading of evidence or any other legal infirmity with the judgment rendered by the learned first appellate Court.
' In view of the above, I see no force in this civil revision, the same is therefore dismissed with costs throughout.