' This petition under section 115, C.P.C. Arises out of a suit filed by the petitioners against the respondents praying for a declaration that they were the owners to the extent of one-half share along with respondents Nos.6 and 7 in the land measuring 223 Kanals and 10 Marlas situated in Chak No,195, Tehsil and District Faisalabad.
2. The dispute relates to the inheritance of one Fatta who died in 1912 without male heirs. On his death, the land was mutated in the name of is widow, Mst. Pulli, as a limited owner vide Mutation Exh. P2 sanctioned on 2-8-1912. In 1913, Mst. Pulli married Nizam Din, a brother of Fatta with the result that her life estate stood terminated and the land was mutated in the name of Mst. Ghulam Fatima, daughter of Fatta, who married Muhammad Iqbal in 1933-34. On 15-5-1973 she made a gift of the land in favour of her two daughters, Mst. Sharifan and Mst. Sakina, whereupon the petitioners filed a suit out of which this petition has arisen on 21-12-1973.
3. The suit was resisted by the respondents on various pleas inter alia that it was barred by time and that Mst. Ghulam Fatima was not a limited but a full owner of her right of disposition of property. On the pleadings of the parties, the learned trial Court framed as many as eleven issues on which the parties produced their evidence.
4. On 27-7-1981, the suit was decreed in favour of the petitioners. It was found by the trial Court that Mst. Ghulam Fatima had succeeded to the estate of her father, Fatta as a limited owner and on her marriage the life estate terminated and she could not gift away the property to her daughters. As regards limitation, it was observed that as the petitioners were in possession of the land, the question of limitation did not arise and in any case the suit having been filed within 6 years of the attestation of the mutation of gift, it was within time.
5. Aggrieved, the respondents took the matter to the District Court in appeal which was accepted by an Additional District Judge, Faisalabad on 7-6-1984 who was of the view that as the life estate in favour of Mst. Ghulam Fatima stood forfeited in 1933-34 on account of her marriage with Muhammad Iqbal, limitation started running on that date and the suit which was instituted in 1973 was barred by time. Hence this revision.
6. Ch. Khurshid Ahmad, learned counsel for the petitioners has argued with vehemence that the view taken by the learned Additional District Judge that the suit was barred by limitation is contrary to law. He submitted that as the petitioners were already in part possession of the land, Articles 140, 141 and 143 of the Limitation Act, 1908 had no applicability and the suit was governed by Article 120 of the Limitation Act. He emphasised that cause of action arose to the petitioners on the sanctioning of mutation of gift on 15-5-1973 from which date the suit was within time.
7. Mr. A.W. Butt, learned counsel for the respondents has defended the impugned judgment of the learned Additional District Judge by reiterating that as Mst. Ghulam Fatima had married in 1933-34, her life estate stood terminated, the petitioners were obliged to institute a suit within a period of 12 years from that time in view of Articles 140, 141 and 143 of the Limitation Act, 1908. It was also claimed by the learned counsel that the possession of the petitioners being as that of tenants, they were estopped from denying the title of the respondents under Article 115 of the Qanun-e- Shahadat, 1984.
8. As it would appear from the judgment of the Additional District Judge; he proceeded to accept the appeal of the respondents only on the ground that their suit was barred by limitation. The finding of the trial Court that Mst. Ghulam Fatima had succeeded to the land as a limited owner under the Customary Law was not interfered with nor has that finding been challenged before me.
While holding that the suit of the petitioners was barred by limitation, the Additional District Judge was of the view that the suit was governed by Articles 140, 141 and 143 of the Limitation Act, 1908.
However, none of these Articles has any applicability to the present case as those Articles are applicable only to suits for possession and not for declaration. Furthermore as admittedly the petitioners were already in possession of the land, they could not have sued for possession and their suit was governed by Article 120 and not by Articles 140, 141 and 143 of the Limitation Act, 1908.
9. Article 120 of the Limitation Act, 1908 prescribes a period of 6 years for filing a suit from the date when the right to sue accrues. In the submission of the learned counsel for the respondents and according to the view taken by the learned Additional District Judge the right to sue accrued to the petitioners on the termination of the life estate of Mst. Ghulam Fatima in the year 1933-34.
10. This argument, however, proceeds upon misconception without the true legal position. It is not disputed by the respondents' learned counsel that the petitioners are and were in possession of the suit land. On the termination of the limited estate the property devolved upon them as heirs of Fatta alongwith others and they as such continued to remain in possession of the land though their status underwent a change and they became co-sharers. Consequently, there was neither any occasion nor any necessity for the petitioners to have filed any suit. There is nothing on the record to show that till the time Mst. Ghulam Fatima gifted away the land in the year 1973 the title of the petitioners to the land was ever challenged or disputed. Be that as it may, in law, there is no obligation cast on the person in possession to file a suit on the first or every denial of his title. He may, so long as he does not feel actually threatened, ignore any challenge to his title and can maintain at his discretion a suit when he finds real threat to his possession or ownership. It was so held by this Court in Muhammad Bukhsh and others v. Umar and others PLD 1952 Lah. 307, Ch. Muhammad Khan and another v. Ghulam Hassan 1983 CLC 800, Mst. Fazal Begum and another v.
Municipal Corporation, Lahore and 5 others 1983 CLC 1643.
11. The learned Additional District Judge was also in error in holding that the petitioners having been inducted into the land as tenants under Mst. Ghulam Fatima could not deny her title. Under Article 115 of the Qanun-e-Shahadat, 1984 which corresponds to Article 116 of the Evidence Act, 1872, a tenant is estopped from denying that his landlord at the time of the inception of the tenancy had title to the property but he is not debarred from showing that after the creation of the tenancy due to change of circumstances, the landlord has ceased to hold the title or that on account of development of the property the tenant had himself become a co-sharer in the land. If any authority is needed, reference may be made to Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. AIR 1937 PC 251, Luckman Chaplani v. Pearey Lal AIR 1939 All. 670 and Mohendranath Haldar v. Mohendranath Sardar AIR 1944 Cal.
305.
12. It is also to be seen that the entries in the Revenue Record appear to have been misinterpreted by the Additional District Judge. Though in the column of ownership and possession the petitioners are recorded as tenants but in the same column it is recorded that they were in possession of the land without payment of any rent. Be that as it may, as admittedly the petitioners have remained in possession of the property, they were not obliged to file a suit at the time of termination of the estate and were justified in waiting till the threat to their possession and ownership became real in the form of attestation of mutation of gift on 15-5-1973 by Mst. Ghulam Fatima in favour of her daughters Mst. Sharifan and Mst. Sakina.
' In view of what has been stated above, this petition is allowed, the judgment and decree of the learned Additional District Judge is set aside with the result that the judgment and decree of the trial Court dated 27-7-1981 stands restored with no order as to costs.