' This revision petition is directed against judgment and decree dated 30-6-1991 through which appeal filed by the petitioners against judgment and decree dated 10-10-1987 passed by the trial Court by which the suit filed by the petitioners for declaration had been dismissed, was rejected, has been challenged.
2. The dispute relates to inheritance of Khushhal deceased who was real brother of the petitioneRs, The respondents are step-brothers and sisters of Khushhal deceased. Machia father of Khushhal had two wives namely Mst. Noorai and Mst. Saban. The present petitioners were born from Mst.
Noorai whereas respondents were born from Saban, as such, so far as inheritance of Khushhal was concerned the same was to devolve on the petitioners alone being his direct heirs and in their presence the respondents could not inherit his property being step-sisters and brotheRs, Mutation No,369 was sanctioned on 14-6-1957 regarding land of Khushhal deceased situated in Chak No,214/JB, Tehsil and District Jhang in favour of the petitioners as well as respondents on the assumption as if all of them being heirs of Khushhal were to inherit it. In consolidation in lieu of the land owned by the respondents independently in their own rights as also the land inherited by them through the said mutation No,369 from Khushhal, they were given land in Squares Nos,24, 6 and 21. According to the finding of the learned trial Court land in Square No,24 is still joint ownership whereas the land in other two Squares has been shown to be in exclusive ownership of the respondents. The consolidation took place 25/26 years before the filing of the suit. The total land in Square No,24 given to the respondents in this Vanda was 37 Kanals 3 Marlas, in Squares Nos,6 and 21 it was 42 Kanals 7 Marlas. Out of this, land measuring 2 Kanals 12 Marlas in Square Nos,24 and 5 Kanals 4 Marlas in Squares No,6 and 21 was the land which was given to the respondents in lieu of land inherited by them from Khushhal through Mutation No,369.
3. The petitioners filed suit for declaration that Mutation No,369 sanctioned on 146-1957 regarding inheritance of Khushhal through which the respondents were also given shares as co-heirs was ineffective against their rights and they were the owners of the said land to the exclusion of respondents being real brothers and sisters of Khushhal. The suit was contested on the ground that the same was barred by time, not maintainable in the present form and that the respondents were also entitled to inherit the land from Khushhal.
4. Both the Courts below after considering evidence held that the petitioners being out of possession of land, therefore, the suit was not maintainable in the present form and their suit was also not within limitation. They were held to be estopped from filing the suit as they did not raise any objection for a long period even after consolidation of land by which the land was given to the respondents in lieu of not only the land which they owned but also in lieu of the share inherited by them from Khushhal through the said mutation. The suit was dismissed through judgment dated 10-10-1989 by the trial Court which was upheld in appeal by the lower appellate Court by judgment dated 30-6-1991 through which the appeal filed by the petitioners was dismissed. The lower appellate Court held that though the respondents were not to inherit any share from Khushhal but the suit was not maintainable as the petitioners were out of possession and did not claim decree for possession.
5. Learned counsel for the petitioners submitted that since the respondents claimed joint ownership in the land inherited from Khushhal with the petitioners, therefore, as per their own showing they were holding the land after the said mutation as joint owners, as such, they could not plead that the suit was not in proper form because of physical possession of the land not being with the petitioners as they shall be deemed as per entries in the mutation to be in possession as joint owners as possession of one joint owner is deemed to be constructive possession of the other joint owners and same would be the position regarding land given in Vanda to respondents in lieu of land inherited from Khushhal. Land in Square No,24 as per finding of the trial Court is still joint. He also argued that on the same reasoning the suit could not have been held to be barred by time or that principle of estoppel was available in this case to perpetuate the wrong done by the revenue officer while sanctioning the mutation in giving share in the inheritance to a stranger i,e, the respondents.
6. Learned counsel for the respondents when questioned frankly, conceded that under the Muhammadan law the respondents could not inherit the property of Khushhal in the presence of the petitioners being his direct heirs as real sisters and brotheRs, That being so, even if the mutation was sanctioned in favour of the respondents also showing them the heirs or Khushhal alongwith the petitioners making them joint owners, they would not become such owners having no right to inherit the estate of Khushhal. The property according to the respondents being in their possession as joint owners, therefore, the objection regarding possession relatable tc maintainability of suit was not available in this case. The respondents never claimed title through adverse possession rather their case was that they were also entitled to inherit property of Khushhal and were in possession of land as joint owners on the basis of the said mutation of inheritance. The petitioners were owners of land even after consolidation in Square No,24 to the extent of land measuring 2 Kanals 12 Marlas and in Squares Nos,6 and 21 to the extent of land measuring 5 Kanals 4 Marlas totalling measuring 7 Kanals 16 Marlas jointly with respondents in these Square numbers because that much land represented the land inherited by the petitioners from Khushhal. They should have been declared as joint owners of the said land in the said Square numbers alongwith the respondent, therefore, there was no defect in the form of the suit. No question of estoppel could arise as there was no overt act on the part C of the petitioners for acknowledging the respondents as heirs of Khushhal. The suit for the foregoing reasons could also not be held to be barred by time.
7. The two Courts below have committed material irregularity and illegality in exercise of jurisdiction vested in them under the law. The judgments and decrees passed by both the Courts below are not sustainable which are hereby set aside. The revision petition stands accepted. The suit of the petitioners is decreed and they are declared to be the joint owners of land to the extent of land measuring 2 Kanals 12 Marlas in Square No,24, 5 Kanals 4 Marlas in Square No,21 situated in Chak No,214/JB, Tehsil and District Jhang with the respondents and Mutation No,369 sanctioned on 14-6-1957 was illegal and void and did not adversely affect the said rights of the petitioners in the land as aforementioned. There will be no order as to costs.