IRSHAD HASAN KHAN, J.---Leave to appeal is sought against the judgment dated 23-9-1997 passed by a learned Single Judge of the Lahore High Court, in Civil Revision No,2048 of 1991.
2. There is no need to make a detailed reference to the facts of the case. Suffice it to say that Allah Ditta and others brought a suit for possession against the Petitioners asserting that Hussain son of Laddha was owner of land measuring 46 Kanals, 1 Marla bearing Khewat No,202, Khatooni Nos.442/1, 442/2, 443 and 444, Khasra Nos.1022, 1032, 1035, 983, 1033 and 1034 in village Gillwala, Tehsil Wazirabad. He died issuless on 23-5-1950. At the time of his death only Nathu son of Malla was the sole legal heir who also died on 22-3-1968. The inheritance of Nathu devolved on his legal heirs i.e, plaintiffs and defendants Nos.33 to 37. The claim of the plaintiffs was that inheritance Mutation No,171 of Hussain was recorded and as Nathu had died and his legal heirs/plaintiff No,1 Allah Ditta, Piran Ditta (predecessor-in-interest of plaintiffs Nos.2 to 6) and defendants Nos.33 to 37 were alive and were entitled to get the inheritance of Nathu deceased. However, the concerned Revenue officer also declared the predcessor-in-interest of the defendants Nos.1 to 32 as legal heirs of the deceased with the result that the aforementioned Mutation No,171 was incorrectly sanctioned on 28-12-1993. Further, Mst Aisha, etc. Defendants Nos.33 to 37 were also deprived of their legal rights. The main assertion of the plaintiffs in the suit was that Mutation No,171 dated 28- 12-1973 was ineffective qua their rights. As defendants Nos. 33 to 37 had not joined the plaintiffs, they were impleaded as pro forma defendants. The prayer was that the defendants be directed to hand over the possession to plaintiffs and defendants Nos.33 to 37 and their such refusal provided the cause to make the suit, out of which these proceedings have arisen.
3. The parties went on trial on the following issues:--
(1) Whether the plaintiffs have no locus standi to bring this suit? OPD
(2) Whether the suit is within time? OPP.
(3) Whether the plaintiffs are estopped by their words and conduct to bring this suit? OPD 1 to 18.
(4) Whether Nathu son of Mallah was the sole legal heir of deceased Hussain and the Mutation No,171 sanctioned to the inheritance of Hussain deceased is illegal, void and ineffective upon the rights of the plaintiffs and defendants Nos.19 to 23? OPP
(5) Relief.
4. The suit was, initially, dismissed by the learned trial Court and on plaintiffs' appeal thereon, the same was remanded to the learned trial Court by the appellate forum under section 96, C.P.C., After remand it was again dismissed on 9-7-1987. The appeal was accepted by the learned Additional District Judge, Gujranwala on 4-12-1991. Operative portion of the said judgment reads thus:--
7. Admittedly plaintiffs/appellants got share in the impugned mutation. As such they were co- sharers. So, their suit is within time. There is nothing on the record to show that plaintiffs were estopped to file this suit. There is nothing in disputed mutation available to support plea of respondents/defendants that appellants were consenting party to the disputed mutation. Even otherwise there is no evidence to prove the plea of estoppel. So in my opinion, respondents have filed to establish estoppel. In these circumstances, I find that findings of the trial Court on issues Nos.2 and 3 are not sustainable in the eye of law. The findings of Court below on these issues are set aside and the same are accordingly decided in favour of plaintiffs/appellants. No other point was urged.
The result was that the suit of the plaintiffs was decreed in their favour.
5. The petitioners remained unsuccessful before the High Court vide impugned judgment dated 23-9-1997.
6. Hence this petition.
7. Learned counsel for the petitioners has criticised the impugned judgment on the grounds that the rights of the legal heirs of Jumma, Pira, Ashiash sons of Bacca and real brother of Malta, have been disregarded, the property of Hussain son of Ladha son of Pira had to go back to Bacca, father of Pira and was to be inherited by both the legal heirs of Bacca; the parties having occupied specific Khasra numbers i.e, 1022, 1032, 1033 and 1034 in the year 1950 and even prior thereto, the ouster of the petitioners from the joint Khata is not justified and that the admission by the respondents in the appeal filed by them before the Appellate forum under section 96 C.P.C. .To the effect that cause of action had arisen in their favour in the year 1973, their suit should have been dismissed being beyond time and that they were also estopped by their conduct having acquiesced and waived their rights.
8. We have heard the learned counsel for the petitioners at some length and have also been taken through the available material by him. The observations by the learned Judge in chambers that the petitioners had questioned the findings of the learned trial Court on the ground that the suit was hit under the Limitation Act as the plaintiffs had remained silent for about 30 years and were, therefore, estopped from challenging the mutation sanctioned in 1973, have not been shown to be incorrect. The plea before the High Court was that Nathu died in the year 1968 and did not claim his share from the land left by Hussain who died in 1950. His silence for about 18 years disentitled him to claim his share, if he had been alive. Since Nathu had died in 1968 and the suit was filed in the year 1983, therefore, it was obviously beyond time. The operative part of the impugned judgment reads thus:-- 11 Both the Courts below have held issues Nos.1 and 4 in favour of the plaintiffs holding that Nathu was the sole heir at the time of death of Hussain in 1950 and all other heirs had predeceased Hussain. Both the Courts below have concurred on this matter. This being a concurrent finding of fact by both the Courts, it does not call for any interference by this Court. Even otherwise, the learned Additional District Judge has rightly mentioned in his judgment that finding of the trial Court on issues No, 1 and 4 was challenged by defendants/respondents by way of cross-objection but the same was dismissed in limine by his learned predecessor on 19-7-1988 and this decision was not challenged in higher forum by way of appeal or revision. So, it is obvious that the finding of the trial Court on issues Nos.1 and 4 to that extent had attained finality.
12 As for the application of limitation there are host of authorities on the point that limitation does not run in such cases as held in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) wherein their Lordships of the Supreme Court were pleased to hold that wrong mutation conferred no right in the property as the Revenue Record is made only for the purpose of ensuring realization of land revenue. It would however be instructive to reproduce the decision of their Lordships as under:-- '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.
' It is, therefore, obvious that the revision petition is without any merit and the impugned judgment is perfectly lawful and valid. The petition is, therefore, dismissed leaving the parties to ' bear their own costs."
The plea being raised that the suit was hit by the law of limitation and that the other side was estopped by their conduct to lay claim to the disputed property. Was considered by the learned Judge in Chambers while making the impugned judgment dated 23-9-1997, and repelled on cogent reasons.
9. Learned counsel was of the view that as the judgment by the Appellate Forum had not concurred with the findings of the trial Court on issues Nos.1 and 4 therefore, the observation that the question regarding the said issues was to be regulated by "the concurrent findings of the Courts below", Cannot be accepted. The judgment of the trial Court did merge in that of the Appellate Court and the findings by the Appellate Court on the question of limitation and estoppel were that alleged wrong mutation did not confer any right as the entries in the Revenue Record were only for the purpose of ensuring realization of land revenue. Even otherwise, the rights of the owners to the inheritance of the deceased on the basis of the possession of co-sharers and co- owners cannot be made dependent upon their filing suit for possession. The reference made to the Pedigree Table (Exh. P.5) by the learned counsel, does not alter the shape of things when considered in the context of resolution of the question regarding the entitlement of Sharia heirs of a deceased to the landed estate within the four corners thereof. We are not inclined to the view that any case for interference in the impugned judgment dated 23-9-1997 has been made out. It was not the case of the petitioners that the High Court under section 115, C.P.C., did not exercise its jurisdiction within the contemplation of clauses (a)(b)(c) of section 115, C.P.C. Which, after all, revolves around question of jurisdiction alone. In this view of the matter, the impugned judgment cannot but be upheld. Moreso, when no ground for grant of leave in this case has even so much as been alleged by and on behalf of the petitioners.
10. Resultantly, the petition is dismissed and .