1. ' NASIR ASLAM ZAHID, J.---The disputed lands, subject-matter of the present appeal, admittedly belonged to Mitha son of Inayat, who died in 1936. According to the plaintiffs, who had filed a suit in 1978 in the Court of Civil Judge, Dera Ghazi Khan, deceased Mitha left behind, as his legal heirs, Mst.
2. Janat (widow), Mst. Fatima and Mst. Subhal (daughters) and one brother Bahadar. In the suit, which was filed by widow Mst. Janat and daughter Mst. Fatima of deceased Mitha, it was claimed that, after the death of Mitha, the plaintiffs being owners remained in possession and had been paying the land revenue and some times back to sell some part of the land an inspection was made of the revenue record and it was found that the land was mutated in the names of defendants Shahro, Musa and Wahid Bakhsh as the sons of Bahadar (brother of original owner Mitha). It was pleaded that Mutation No,492 dated 16-5-1937 was got fraudulently attested and sanctioned by the sons of Bahadar by showing that Mitha had died issueless although, when Mitha died, he was survived by the said two daughters and the widow. A declaration was sought that the disputed lands belonged to the plaintiffs and the said mutation, fraudulently attested, be declared as illegal and the contesting defendants (sons of deceased Bahadar) be restrained from dispossessing the plaintiffs from the lands in dispute. The suit was contested by the sons of Bahadar mainly on the ground that the widow and daughters of deceased Mitha could not inherit the said lands as deceased Mitha and his family were governed by the customs in the matter of inheritance and succession. It was also pleaded that the contesting defendants had even otherwise acquired the right of ownership in the disputed lands by adverse possession. According to the contesting defendants, the suit was also barred by time.
3. ' By judgment dated 13-10-1988, the trial Court dismissed the suit. The appellate Court, the Additional District Judge, partly accepted the appeal against the judgment of the trial Court holding that Mutation No,492 sanctioned on 16-5-1937 was illegal and as a result it was declared that Mst. Fatima and Mst. Sabhal (daughters of Mitha) were each entitled to 16/24th share and Mst.
4. Janat widow of Mitha was entitled to 3/24th share, whereas Wahid Bakhsh, Musa and Shahro sons of Bahadar, were entitled to 5/24th as residuaries. Sons of Bahadar approached the High Court by filing a revision petition challenging the judgment dated 6-12-1988 but the High Court dismissed the revision petition.
5. ' Appellants filed a Civil Petition for Leave before this Court and, by order dated 4-5-1994, leave was granted as follows:- "Shahro and others, petitioners herein, call in question the judgment dated 6-12-1992 passed by a learned Single Judge of the Lahore High Court, whereby Civil Revision No,44-D of 1988, filed by the petitioners againstthe judgment of the Additional District Judge, D.G. Khan, dated 9-1-1988, was dismissed.
6. ' The facts of the case, briefly stated, are that Mst. Fatima and others, respondents herein, filed a suit for declaration against Shahro and others defendants/petitioners to the effect that they are owners of the suit land and that the defendants/petitioners have no right or interest therein. It was averred in the plaint that Mitha father of the plaintiffs and Mst. Sabhal defendant No,4 was the brother of Bahadar predecessor-ininterest of Shahro Musa and Wahid Bakhsh defendants 1 to 3 and, thus, were joint owners; that their predecessor-in-interest died in 1936 and they continued in joint possession of the suit property and were paid their share of produce; that 10/15 days prior to the institution of the suit they felt the necessity of selling some area and on consulting the record came to know that the entire land left by him had been mutated exclusively in the name of Bahadar, predecessor-in-interest of defendants 1 to 3; that the inheritance Mutation No, 492 dated 16-5-1937 is wrong and ineffective on the rights of the plaintiffs and that they are entitled to the possession prayed for. The defendants/petitioners contested the suit and in their written statement raised the plea of limitation, adverse possession and denied the title of the plaintiffs/respondents.
7. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Court, vide its judgment and decree dated 13-10-1986, dismissed the suit of the plaintiffs/respondents. However, the learned Appellate Court, vide judgment and decree dated 9-1- 1988, set aside the judgment of the trial Court and declaring Mutation No,492 dated 16-5-1937 as illegal, decreed the suit of Mst. Fatima and Mst. Sabhal daughters of Mitha/respondents herein entitled to 16/24th share, widow of Mitha 3/24th share and Wahid Bakhsh, Musa and Shahro sons of Bahadar entitled to the residual of 5/24th share and accordingly decreed the suit of the plaintiffs/respondents. Shahro and others, petitioners herein, preferred Revision Petition No,44-D of 1988 against the judgment of the Appellate Court which was dismissed through the impugned judgment and hence the instant petition for leave to appeal.
8. We have heard Mr. Talib H.Rizvi, Advocate, for the petitioner; Mr.M. Anwar Sipra, Advocate/caveator for the respondents; and have perused the record of the case.
9. ' The suit land admittedly belonged to Mitha, predecessor-in-interest of the plaintiffs, who died somewhere in 1935-36. It is equally established that his inheritance mutation was attested vide No,492 attested on 16-5-1937 in the name of Bahadar his cousin to the exclusion of plaintiffs and defendant No,4 whose relationship with him is also not denied. The main question, however, for determination is that of limitation and adverse possession for more than 12 years.
10. ' Leave is granted to determine the legal questions involved."
2. We have heard the arguments of Mr. Talib H.Rizvi, learned Advocate Supreme Court for the petitioners and Mr.Gul Zarin Kiani, learned Advocate Supreme Court for respondents Nos.1 to 10. The other respondents are ex-parte. With the assistance of the learned counsel, we have gone through the record.
3. On the basis of the pleading of the parties, the trial Court framed the following issues:-- "(1 ) Whether the plaintiffs are owners in possession of land? OPD (1-A) Whether parties are governed by custom in matter of inheritance and female heirs were deprived from inheritance? OPP.
11. (1-B) Whether the suit of the plaintiff is time-barred? OPD.
12. (1-C) Whether defendants Nos.1 to 3 have acquired ownership through adverse possession? OPD.
13. (1-D) Whether suit has been wrongly valued for purpose of court-fee and jurisdiction. If so, what is its effect? OPD.
14. (1-E) Whether the suit is not maintainable in its present form? OPP.
15. (1-F) Relief."
16. ' The trial Court, by judgment dated 13-10-1986, dismissed the suit holding that the parties belonged to "Sikhani Tribe" which was governed by custom in relation to inheritance and womenfolk were not given shares in inheritance according to the custom. The question of possession was also decided against the plaintiffs. On the question of limitation and adverse possession, however, issues were decided against the appellants/contesting defendants. It was held by the trial Court that onus of proving issue regarding limitation was on the appellants/contesting defendants but they did not prove such issues. Finding of the trial Court was that the suit was in time.
17. ' On the question of adverse possession also, the trial Court decided against the appellants by holding that the onus of proving the issue was on them but they did not adduce any evidence either oral or documentary to show that they had acquired ownership through adverse possession.
18. ' The trial Court accordingly decided Issues Nos.1 and 1-A in favour of the appellants but decided Issues No,1-B, 1-C and 1-D in favour of the plaintiffs.
19. ' As noted, the suit was, therefore, dismissed and the plaintiffs filed an appeal which was allowed by judgment dated 9-1-1988 passed by the Additional District Judge, as the Appellate Court.
20. Admittedly no cross-objections were filed by the appellants in the, said appeal under Order XL1, Rule 22, C.P.C., which provision reads as follows:-- "Upon hearing, respondent may object to decree as if he had preferred separate appeal.--(1) Any respondent though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross- objection to the decree which, he could have taken by way of appeal, provided he has filed such objections in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow."
21. ' Sub-rule (2) of Rule 22 of Order XLI, C.P.C. Provides that such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
22. ' It has been observed that the issues relating to limitation and adverse possession were decided by the trial Court against the appellants and, in the appeal filed by the plaintiffs, the appellants could have supported the decree passed in their favour on other issues by filing cross-objections under Order XLI, Rule 22, C.P.C. Challenging the findings against them by the trial Court on the issues relating to limitation and adverse possession. However, this was not done and it is conceded by Mr. Talib H.Rizvi, learned counsel for the appellants, that no cross-objections were filed.
23. ' The Appellate Court allowed the appeal of the plaintiffs on the issues Nos.1 and 1-A after considering and discussing the entire evidence led by the parties on the question whether the parties (belonging to the Sikhani Tribe) were governed by custom which deprived the females from inheritance, and came to the conclusion that the parties were not governed by such custom and in relation to inheritance they were governed by Shariah. Though no cross-objections were filed by the appellants as regards the other issues, the Appellate Court, in any case decided that the suit of the plaintiffs was not time-barred and that the appellants had not acquired ownership through adverse possession.
24. ' As noted, appellants filed a civil revision petition before the Lahore High Court and a perusal of the memo. Of revision petition shows that even in such memo. The appellants did not challenge the findings of the trial Court (as confirmed by the Appellate Court) on the questions of limitation and adverse possession. In ground ' C' in their memo. Of revision petition, appellants averred that the trial Court decided Issues Nos.1 and I-A in their favour after discussing the entire oral and documentary evidence. As regards other issues, including the issues of limitation and adverse possession, it was stated as follows by the appellants in their memo. Of revision petition:-- "The rest of the issues were not so much material for decision of the case and on the strength of Issues Nos.1 and I-A, the trial Court rightly dismissed the suit."
4. Coming now to the impugned judgment of the Lahore High Court dismissing the revision petition filed by the appellants, the findings of the Appellate Court on the issues relating to the applicability of custom or Shariah to the parties in relation to inheritance were confirmed as follows:-- "Mirza Manzoor Ahmad learned counsel for the respondents has argued that the learned first Appellate Court has accorded the findings of fact on the question of applicability of custom in the case in hand after scanning the whole evidence and taking into consideration the overall facts and circumstances of the'case. According to the learned counsel neither material pieces of evidence has been omitted from consideration nor there is any misreading of evidence. Documentary evidence which consists of Rawaj-e-Aam as well as mutation of inheritance which relate to the tribe to which Mitha deceased belonged clearly prove that Shariat Law was applicable in this family for the purpose of inheritance of immovable property and admittedly the plaintiffs being daughters and a widow of the deceased had a right to succeed the deceased in accordance with Shariat Law and the petitioners illegally got them excluded from inheritance, hence, the learned first Appellate Court has rightly set aside the judgment and decree passed by the learned trial Court. Learned counsel has further argued that as the petitioners and the respondents are co-heirs in the land in question and the Khata is still joint neither the question of limitation nor adverse possession will arise in this case in view of the law laid down in cases of Ghulam Ali and 2 others v.
25. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Learned counsel has further argued that even otherwise by virtue of the provisions of Ordinance 13 of 1983, Shariat Law of Inheritance will apply retrospectively as Mitha was admittedly a Muslim and, therefore, it shall be deemed that he was full owner of the property in question and at the time of his death his estate had to be divided in accordance with Shariat Law according to which the plaintiffs are heirs of Mitha in the land in question and, hence, automatically they have succeeded the deceased as his Shari-heirs and they shall be deemed to be in joint possession of the land in question alongwith respondents Nos. I to 3.
26. Learned counsel has relied upon cases of Abdul Gliafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407) and Mst. Farida and 2 others v. Rehmat Ullah and another (PLD 1991 SC 213) and case of Mst. Fazal Nishan and others v. Ghulam Qadir (1992 SCMR 1773).
27. 8, I have considered the arguments addressed by the learned counsel for the parties and have perused the record. Admittedly the parties are Muslims and Mitha deceased was also a Muslim, Baloch by caste, who follows Shariat as per Rawaj-e-Aam which is reflected in copy Exh.P-15.
28. Although there are certain exceptions according to which Sikhani Baloch followed custom. In the family in question it has been proved by the documentary evidence that rule of inheritance was Shariat; merely because some witnesses have made a statement that custom was applicable in the tribe for the purpose of inheritance, will not make much difference when the documentary evidence proves otherwise. Learned counsel for the petitioners has not been able to point out any material pieces of evidence which have not been taken into consideration by the learned first Appellate Court or any evidence which has been misread. This is a civil revision and a finding of fact recorded by the learned Appellate Court cannot be interfered with in exercise of revisional jurisdiction of this Court unless it is a case of misreading or non-reading of evidence. Even if it is a case of wrong appreciation of evidence. No other legal infirmity has also been pointed out by the learned counsel for the petitioner in the judgment rendered by the learned first appellate Court, hence, I hold that the finding of the learned first Appellate Court to the effect that Mitha deceased followed Shariat in the matters of inheritance is unexceptionable and, hence, no fault can be found with the findings of the learned first Appellate Court which is to the effect that inheritance of Mitha deceased has to be decided in accordance with Shariat according to which law the plaintiffs will inherit as his daughters and his widow."
29. ' Although the questions of limitation and adverse possession had not been agitated by the appellants in their revision petition, the High Court, nevertheless, decided these issues against them as follows by confirming the findings of the trial Court as well as the Appellate Court:-- "Arguments of the learned counsel for the petitioners that the suit is time-barred and that the respondents have become owners by adverse possession is also misconceived. Once it is held that the plaintiffs inherited the deceased in accordance with Shariat Law, they automatically become co-heirs in the property in question and, therefore, no period of limitation will run against them. The respondents Nos.1 to 3 cannot claim adverse possession, inasmuch as in order to claim adverse possession, the possession of the claimant has to be illegal and hostile openly to the lawful owners.
30. In the case in hand respondents Nos.1 to 3 have never claimed that they were in adverse possession and held the land hostile to the plaintiffs. They have been claiming the possession of the land in their own right, therefore, the plea of adverse possession cannot be taken by the respondent as held in case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), "
5. From the leave granting order dated 4-5-1994 reproduced in the earlier part of this judgment, it follows that leave was only granted on the questions of limitation and adverse possession and, therefore, learned counsel for the appellants was asked to confine his submissions while arguing the present appeal to such legal questions, yet Mr. Talib H. Rizvi made an attempt to argue on merits also in regard to the issue whether parties were governed by custom which deprived females from inheritance and not according to Shariah. He referred to the evidence adduced by the parties. We are of the view that firstly, the issue regarding merits was not open as leave had been confined to the questions of adverse possession and limitation and, in any case, we find that the High Court has dealt with these questions in detail; the evidence adduced by the parties on these questions has been considered by the High Court. It was observed by the High Court that counsel appearing for the appellants before the High Court had not been able to point out any material based on evidence which had not been taken into consideration by the Appellate Court or that any evidence had been misread. The High Court rightly observed that no misreading or non- reading of evidence was pointed out nor any legal infirmity referred to call for exercise of revisional jurisdiction by the High Court.
31. ' In the circumstances, we are not inclined to interfere with the findings of the Appellate Court, as confirmed by the High Court, on Issues No:.1 anu 1-A.
6. On the issues relating to adverse possession and limitation, as observed in the earlier part of this Judgment, Mr.Gul Zarin Kiani, learned counsel for the' contesting respondents had pointed that no cross-objections had been filed in the appeal in respect of the findings of the trial Court in favour of the respondents on these issues. It had also been noticed that, even in the memo. Of revision before the High Court, appellants did not take up any ground challenging such findings.
32. ' In support of the proposition that, in the circumstances where no cross-objections had been filed under Order XLI, Rule 22, C.P.C., appellants could not challenge such findings in the appeal or later in revision before the High Court, Mr. Gul Zarin Kiani relied upon the following judgments:--
(i) PLD 1973 SC 295 (Khairati v. Aleem-ud-Din).
(ii) PLD 1983 SC 53 (Kanwal Nain v. Fateh Khan).
(iii) PLD 1992 Karachi 78 (Pakistan International Airlines Corporation v. Messrs Khalid Brothers).
(iv) AIR 1914 Calcutta 839 (Nagendra Nath Ghose v. Ram Bharosa Haluai).
(v) AIR 1983 Orissa 252 (Jatani Dei v. Udayanath Behera).
(vi) AIR 1985 Patna 287 (Naresh Ahir v. Mst. Barhiya).
33. ' In PLD 1973 SC 295 (Khairati v. Aleem-ud-Din) it was observed that a respondent can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross-objection. In that case, the trial Court had found as a fact that the suit for specific performance was not barred by time. It was further observed that, therefore, by contending that the suit was so barred, the respondent in that case was not seeking to support the decree as it was but rather to attack the findings in the decree and this he could not do without filing any cross-objection.
34. ' In PLD 1983 SC 53 '(Kanwal Nain v. Fatch Khan) an appeal was filed seeking to challenge the decree passed by the trial Court. No cross-objections were filed to challenge the findings on one of the issues involved in the case. It was held that finding on such issue attained finality and was not liable to be reopened at the appellate stage in the Supreme Court.
35. ' In PLD 1992 Karachi 78 (Pakistan International Airlines Corporation v. Messrs Khalid Brothers) it was held that in the event respondent to an appeal desires to attack the decree, wholly or in part, he could only do so by taking necessary cross-objections to the decree, such as he could have raised if he preferred an appeal.
36. ' In AIR 1914 Calcutta 839 (Nagendra Nath Ghose v. Ram Bharosa Haluai) it was held that where the matter is not agitated by any of the parties, it is not the duty of that Court in fact to reopen a finding which both parties accept and do not move against.
37. ' In AIR 1983 Orissa 252 (Jatani Dei v. Udayanath Behera) it was held that Order XLI, Rule 22, C.P.0 permits the respondent who may not have appealed from any part of the decree to support the decree and state that the finding against him of the Court below ought to have been in his favour but when the respondent supports the decree, he need not file any cross-objection because when the decree is in his favour, cross-objection is not maintainable. It was observed that cross- objection in such situation is inconceivable as the cross-objection is filed against a part of the decree. It had been submitted by Mr. Gul Zarin Kiani that, according to this judgment, at least the respondents had to agitate before the Appellate Court that the issue decided against him should have been decided in his favour.
38. ' AIR 1985 Patna 287 (Naresh Ahir v. Mst. Barhiya) is also to the same effect as AIR 1983 Orissa 252 and here also the submission of Mr. Gul Zarin Kiani was that, if no cross-objections had been filed, at least the respondent should have agitated that the issue decided by the trial Court should have been decided in his favour. According to learned counsel, in the present case, admittedly no cross- objections had been filed and it appears that the appellants did not even agitate before the Appellate Court that the issues regarding adverse possession and limitation had been decided wrongly by the Trial Court and, in the circumstances, such findings attained finality.
39. In our view the objection of Mr. Gul Zarin Kiani on the basis of Order XLI, Rule 22, C.P.C., is not well- taken. Wordings of Rule 22 are themselves clear. It provides that though a respondent may not have filed any appeal from any part of the decree, he can, nonetheless, support the decree even on any one of the grounds decided against him by the Court below. In case, however, he wants to attack any part of the decree against which he could have filed an appeal, the respondent could then only do so through tiling of cross-objections within the prescribed time.
40. ' There is also Rule 33 of Order XLI, C.P.C. Which is as under:--- "33. Power of Court of appeal.--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: ' Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
41. Even in the absence of cross-objections, where it was necessary to file such objections under Order XLI, Rule 22, C.P.C., the Appellate Court, therefore, is always vested with powers to pass any decree and make any order which ought to have been passed etc. In this context, we may refer with approval the following dicta in judgment of the Sindh High Court in P.I.A.C. v. Khalid Brothers (PLD 1992 Karachi 78) by Wajihuddin, .1. (as he then was):-- "An examination of Order 41, Rule 22 of the Code would reveal that a respondent, though he may not have appealed from any part of the decree, yet, without any conditions or restrictions may support the decree, not only on grounds decided in his favour but also on all or any of the grounds decided against him in the Court below. However, in the event a respondent to an appeal desires to attack the decree, wholly or in part, he may only do so by taking necessary cross-objections to the decree, such as he could have raised, had he preferred an appeal. Thus, if respondent to an appeal is only supporting the decree he would be free to do so by urging any lawful grounds, since the endeavour cannot conceivably, affect the outcome or the result flowing from the decree.
42. Grounds for support in the Rule under discussion may often by synonymous with issues in the suit.
43. Thus, stated, a respondent supporting the decree in appeal may do so not only vis-a-vis any adjudication of issues in his favour but equally effectively by attacking the findings on the issues which have gone against the respondent. As regards an appeal or cross-objections against the decree, either of them, inherently are directed towards assailing rather than supporting the decree.
44. Decree itself in a suit, as defined in section 2(2) of the Code is not more than a formal expression of an adjudication which, 'so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit...'. Thus. Irrespective of the decision on any issue in a suit, the decree in such suit is essentially concerned with the rights of the parties, as reflected in the operative part in the judgment. The conclusion is strengthened upon the practice, generally prevalent, whereby in framing decrees prayers in the suit are re-cast and decision of the Court thereon is concisely recorded. It is also of no little significance that if the judgment and the decree based thereon is in favour of a party such party cannot appeal against it. It can only support the decree. Such support, in terms of the opening part of Rule 22, Order 41 of the Code can be on grounds, as inclusive of issues, which have gone in favour of as well as against the successful party. Prohibition is applied only where the respondent, otherwise entitled to appeal, without having appealed or, alternatively, without having raised cross-objections, attempts to question the decree. This, of course, can be done only through an appeal properly filed or cross- objections, duly preferred.
45. ' This is so far as Rule 22 of Order 41, C.P.C., goes. Even the rigours in Rule 22 of Order 41 as regards the necessity of filing an appeal or cross-objections, have been greatly softened upon the occurrence of a later provision in the same Order namely Rule 33 which, expanding upon the powers and jurisdiction of the Appellate Court, as distinguished from the rights of parties, postulates that such Court may pass any decree and make any order, which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised notwithstanding that the appeal is as to part of the decree only and may also be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or cross-objections. To put the matter more lucidly, whereas upon the strict terms in Order 41, Rule 22, C.P.C., a challenge or other partisan objection to a decree or order arises only on an appropriate filing of an appeal or lodging of cross-objections, such technicalities are confined to parties alone and the Appellate Court, by virtue of Rule 33 in the same Order, has been rendered free to fashion relief according to the requirements of a case, irrespective of absence of requisite appeal or cross-objections contemplated in Rule 22 of Order 41. The object or arming the Appellate Court with such an extensive and wide ranging power seems to be none other than to ensure prompt and ready relief in cases of hardship as also, generally, to redress wrongs and to do complete justice in the case."
46. In the present case, therefore, findings on limitation as well as adverse possession could be challenged before the Appellate Court by defendants Shahro and others, who were respondents there, while supporting the decree passed in their favour by the Trial Court. Submission of Mr. Kiani that the appellants did not even agitate these issues before the Appellate Court as well as the High Court is not supported by the Appellate and Revisional Judgments as their perusal shows that these issues were agitated and the two Courts gave their views/findings thereon.
7. On adverse possession and limitation, the following judgments were cited by the learned counsel for the contesting respondents:--- .
(1) 1983 SCMR 626 (Aswa r Muhammad v. Sharif Din).
(2) PLD 1968 Peshawar 148 (Gul Khan v. Said Hassan Shah).
(3) PLD 1990 SC 1 (Ghulam Ali v. Mst. Ghulam Sarwar Naqvi).
(4) 1991 SCMR 1369 (Alla Wasaya v. Rahim Bakhsh).
(5) 1991 SCMR 515 (Muhammad Qasim Khan v. Mst. Mehbooba).
(6) PLD 1991 SC 290 (Mirza Ghulam Hussain v. Ch. Iqbal Ahmed).
(7) PLD 1985 SC 407 (Abdul Ghafoor v. Muhammad Shafi).
47. ' In 1983 SCMR 626 (Aswa r Muhammad v. Sharif Din), the revenue record showed that the land was in cultivative possession of some of the co-sharers. This Court held that possession of one co- sharer is for benefit of all other co-sharers and one co-sharer will be deemed to be in possession of joint land through the other co-sharers and the mere fact that mutations had been attested in favour of some of the other co-sharers did not bless sanctity to transaction and such mutations confer no right in the property as the same are meant for ensuring realization of land revenue and correctness of Revenue Record for that purpose.
48. ' In PLD 1968 Peshawar 148 (Gul Khan v. Said Hassan Shah), decided by Anwarul Haq, J. (as he then was), it was held that revenue record-of-rights does not create or extinguish title but is merely evidence thereof and that possession of one co-owner was the possession on behalf of all notwithstanding erroneous entries in revenue record and that plaintiffs in a suit for declaratory decree need not sue for possession in respect of any part of such property.
49. ' PLD 1990 SC 1 is the well-known case of Ghulam All v. Mst. Ghulam Sarwar Naqvi where it was held that adverse entries in the revenue records and non-participation in the profits in the property would not amount to ouster of the co-sharers as wrong mutations confer no right in property, the revenue record being maintained only for purpose of ensuring realization of land revenue. It was further held that a brother cannot legally claim adverse possession against his sister and muchless ouster. It was further held that an heir in possession has to be considered to be in constructive possession of the property on behalf of the heirs in spite of his exclusive possession and the possession of the brothers would be taken to be the possession of their sisters, unless there is an express repudiation of the claims of the sisters by the brothers.
50. ' In 1991 SCMR 1369 (Allah Wasaya v. Rahim Bakhsh) it was held that an heir in possession will be considered in constructive possession. It was further observed that title and remedy of an heir is not lost by influx of time and if on merit the heirs in possession have no case to claim ownership of the entire property, the other co-sharerscould not be held to have lost their title or remedy on account of influx of time.
51. ' In 1991 SCMR 515 (Muhammad Qasim Khan v. Mst. Mehbooba) a challenge was made to the right of inheritance of co-owners on the ground of limitation but this Court rejected the plea reiterating the principles laid down in Ghulam Ali's case (supra) where it was held that adverse entries and non-participation in the profits of the property would not amount to an ouster of co-sharers and there was no force in the contention in so far as the question of limitation was concerned.
52. ' In PLD 1991 SC 290 (Mirza Ghulam Hussain v. Ch. Lqbal Ahmad) it was held that a co-sharer cannot be held to be in adverse possession against another co-sharer and that where one of the several heirs takes possession, his possession is not adverse to his co-sharers as he traces back the same to a lawful title and thus, he would not be treated as a trespasser. It was further held that if a co- sharer also becomes a usurper and openly as well as in a hostile manner revolts against a co- sharer and either by deceit or by force or other similar elements of treachery, completely ousts a co-sharer, only then on the basis of another principle of complete ouster he can be treated to have set up adverse possession against the other co-sharers. It was also observed that after a fair fight on the basis of lawful title if that claim is given up as having been finally failed, from that point of time onward the adverse possession, if other conditions are satisfied, could start.
53. ' On the other hand, Mr. Talib H. Rizvi, learned counsel for the appellants, on the questions of limitation and adverse possession, sought support from the following case-law:---
(i) PLD 1991 SC 290 Ghulam Hussain v. Lqbal Ahmad.
(ii) 1991 SCMR 832 Adam Khan v. Mumtaz Khan.
(iii) PLD 1989 SC 485 Khanpur v. Muhammad Zarin.
(iv) 1980 CLC 169 Balqees Begum v. Karam Shah.
54. ' In PLD 1991 SC 290, it was observed that when the possession was initially permissive, it can be converted into adverse possession only through an aggressive act by which there should be disclaimer of owner's title of such a character and so open that the real owner must be presumed to know that possession adverse to his title has been established.
55. ' 1991 SCMR 832 lays down the same principles as in PLD 1991 SC 290.
56. ' In PLD 1989 SC 485, it was held that permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more.
57. ' 1980 CLC 169 is a decision by the Supreme Court of Azad Jammu and Kashmir. It was held that the proper test to be applied in a case of adverse possession is whether a person for a period of 12 years or more exercised such dominion over property as to justify the inference that he was holding it in disclaimer of title of the owner. It was observed that prescriptive possession must be adequate in continuity, in publicity and in extent to show that possession is adverse to the true owner. In this case an argument had been raised that assertion of hostile title must be brought to the knowledge of the person against whom title is asserted and if this ingredient is lacking possession however long it may be, it cannot be construed and termed to be hostile against the owner. This plea was rejected inter alia for the following reason:--- "Our considered view is that assertion of hostile title, except in cases of co-sharers which is not the case before us, need not be in the way the learned counsel wants us to hold, brought to the knowledge of the person against whom title is asserted. If it can be shown that the true owner had such knowledge, as Jewan Khan had in this case, he cannot later turn around and say that no overt act showing assertion of adverse possession was brought to his knowledge."
58. (Underlining is ours).
8. On the issues of limitation and adverse possession also we find no merit in the case of the appellants. It has already been observed that on these two issues there are three concurrent findings against the appellants. Issue No,1-B related to limitation and Issue No, 1-C was in regard to adverse possession. The trial Court, though dismissed the suit of the plaintiffs on other issues, had decided these two issues in favour of the plaintiffs. On Issue No,1-B (limitation), the finding of the trial Court was as follows:--- "Plaintiffs have averred in the plaint that 10/15 days ago, when they checked the Revenue Record, they came to know that disputed property has been wrongly entered in favour of the defendants Nos.1 to 9. P.W.4 i,e,, Muhammad Hussain son of plaintiff No,1 has deposed on 25-6-1983 that his mother i,e,, plaintiff No,1 checked the Revenue Record and came to know that her property has been wrongly entered in favour of the defendants. There is no cross-examination on the statement of P.W.4 about the knowledge of entries in the inheritance mutations. D.W.3 i,e,, Wahid Bakhsh, one of the defendants has deposed that plaintiffs were fully aware about the impugned mutation and they moved a review petition to the Collector in this behalf, but the same was dismissed.
59. ' The onus probandi of this issue was on the defendants, but defendants have not proved this issue.
60. They have not produced any review petition which was moved by the plaintiffs to the Collector about the impugned mutation. So, the suit is well in time and this issue is decided against the defendants and in favour of the plaintiffs."
61. The finding on this issue was confirmed by the Appellate Court (Additional District Judge) by holding that the impugned mutations were agitated by the parties within time. Then the High Court in revision held the argument of the appellants that the suit was time-barred as misconceived. It was observed that once it was held that the plaintiffs inherited the disputed lands from the deceased in accordance with Shariah, they automatically became co-sharers in the property in question and, therefore, no period of limitation would run against them.
62. ' Apart from the aforesaid concurrent findings of the 3 Courts on the question of limitation, it has also been observed that in the memo. Of revision no ground had been taken challenging the concurrent findings of the Trial Court and the Appellate Court against the appellants on the issue of limitation.
63. ' No case is made out for interference with the finding that the suit had been filed within time.
9. As regards the issue of adverse possession (Issue No,1-C), the trial Court decided this issue also against the appellants as follows:--- "The onus probandi of this issue was on the defendants, but defendants have not adduced any oral as well as documentary evidence which goes to show that defendants Nos.1 to 3 have acquired ownership through adverse possession, and this issue is decided against the defendants."
64. ' The Appellate Court did not disturb the aforesaid finding on the question of adverse possession and the High Court, in revision filed by the appellants, held that the appellants could not claim adverse possession inasmuch as in order to claim an adverse possession, the possession of the claimant has to be illegal and hostile openly to the lawful owners but in this case they had never claimed that they were in adverse possession and held the land hostile to the plaintiffs. According to the High Court, the appellants had been claiming possession of the land in their own right and, therefore, the plea of adverse possession could not be taken up by the appellants and for this reliance was placed on the case of Ghulam Ali (PLD 1990 SC 1).
65. ' Mr. Talib H. Rizvi, learned counsel for the appellants had relied upon PLD 1991 SC 290, 1991 SCMR 832, PLD 1989 SC 485 and 1980 CLC 169 in support of the claim of the appellants that they had become owners by way of adverse possession. It has been argued that mutation had been attested as far back as 1937 and the appellants had all along remained in possession and in the facts and circumstances it had been established that the possession of the appellants was hostile to the plaintiffs. It was also argued that, since 1937 when property had been mutated in the names of the appellants, it was established on record that the appellants had been asserting an adverse title to the property to the knowledge of the plaintiffs since 1937. Relying upon the decision of the Supreme Court of Azad Jammu and Kashmir in 1980 CLC 169, it was argued that it was not necessary that the claimant should bring it to the knowledge of the owner that the claimant was asserting his title if it could be shown that the true owner had such knowledge. However, it has been noticed that in the said judgment of the Supreme Court of Azad Jammu and Kashmir, there was an exception in the cases of co-sharers and appellants are co-owners/co-sharers. It has been held in several decisions by this Court and is now well-settled that possession of one co-sharer or co-owner is for benefit of all other co-sharers and the mere fact that mutations had been attested in favour of some of the co-sharers would not extinguish the title of the other co-sharers. It has also been held, time and again, that entries in the revenue record of rights do not create or extinguish title but are a mere evidence thereof. In Ghulam Ali's case (supra) it had been held that adverse entries in the revenue record and non-participation in the profits in the property would not amount to ouster of the co-sharers as wrong mutations confer no right in property, the revenue record being maintained only have the purpose of ensuring realization of land revenue.
66. ' In the present case, the male heirs of Mitha tried to deprive the female heirs of their right to inherit the lands left by deceased Mitha. The female heirs of Mitha were his widow and daughters. In Ghulam Ali's case (supra) it had been held that a brother could not legally claim adverse possession against his sister and muchless ouster. It was further held that an heir in possession has to be considered to be in constructive possession of the property on behalf of the heirs in spite of his exclusive possession and the possession of the brothers would be taken to be the possession of their sisters, unless there is an express repudiation of the claims of the sisters by the brothers.
67. In the present case, apart from the fact that mutation had been got attested in their exclusive names by the male heirs, there is no evidence that the male heirs had expressly repudiated the claim of the female heirs. In fact, the male heirs got their exclusive names mutated as owners on the basis of a wrong statement that they were the only legal heirs of deceased Mitha. It has already been held that the suit filed by the plaintiffs was not time-barred. The plaintiffs were female heirs of deceased Mitha. The male heirs by illegal mutation in the revenue record could not deprive the plaintiffs of their rights in the property left by deceased Mitha. As observed, there is no evidence to establish that the appellants had set up any hostile title or claim that their possession was adverse to the rights of the plaintiffs. The principle laid down in Mirza Ghulam Hussain v. Ch. Iqbal Ahmad (PLD 1991 SC 290) is reiterated and that is that if a co-sharer also becomes a usurper and openly as well as in a hostile manner revolts against the co-sharer and either by deceit or by force or other similar elements of treachery, completely ousts a co-sharer, only then on the basis of another principle of complete ouster, he can be treated to have set up adverse possession against the other co-sharers. The other principle laid down in Mirza Ghulam Hussain's case is also reiterated and it is that after a fair fight on the basis of lawful title if that claim is given up as having been finally failed, from that point of time onward the adverse possession, if other conditions are satisfied, could start. Appellants' case of adverse possession is not covered by either of the aforesaid principles.
68. No case is made out by the appellants for claiming ownership of the property to the extent it devolved by inheritance upon the female heirs according to Shariah.
10. As a result, we find no merit in this appeal. Civil Appeal No,560 of 1994 is dismissed with costs.