' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with leave of the Court, is directed against the judgment and decree passed by the High Court on 28-10-1997, whereby the appeal filed by the appellants, herein, was dismissed.
2. The precise facts, leading up to the present controversy, are that land measuring 47 Kanals and 19-1/4 Marlas, comprising survey Nos.229, 223-Min, 223, 224-Min, 205-Min, 205-Min, 225-Min and 217-Min, situated in village Rakkar, Tehsil Hajira, was initially in the ownership of one Ditta on whose death it was inherited by her widow Mst. Rajan, as a limited owner under the custom. Mst. Rajan transferred the whole suit land to Bagga Khan and Feroz Khan, vendees, whose legal representatives are now Sakhi Muhammad and Mst. Khanman Begum, appellants Nos.2 and 3 herein. Mst. Hassan Bi, Mst. Akbar Jan, Atta Muhammad and Makhan Khan, the other heirs of the deceased, filed a suit against Mst. Rajan and the vendees of the suit property in the Court of Sub- Judge Rawalakot on 23-2-1955, for a declaration that the sale-deed of the said property was unlawful and void and consequently ineffective on their right of inheritance. Their version was that the widow of deceased Ditta had inherited the suit property as a limited owner till her re-marriage or death under custom and that on the happening of any of the above events, the same would be inherited by them as heirs of the deceased. The above suit was dismissed by the trial Court vide its judgment and decree dated 25-4-1959. The appeal filed before the District Judge also failed.
However, on second appeal the High Court vide its judgment and decree dated 2-7-1960 granted a declaration in favour of the above-named appellants (the heirs of deceased) that they shall be entitled to inheritance under the Muslim Law; when the succession opens on the termination of the limited interest of Mst. Rajan and to the extent of their share which they would inherit on the termination of the limited interest. The sale-deed executed by Mst. Rajan in favour of Bagga Khan and Feroz Khan shall be ineffective against their rights.
3. After passing of the above decree, on 11-4-1966, Mst. Hassan. Bi, Atta Muhammad, Mst. Akbar Jan and Makhan Khan filed a suit against Mst. Rajan, Bagga Khan and Feroz Khan in the Court of Sub- Judge Rawalakot, for the possession of the suit land and the house sold by Mst. Rajan to Bagga Khan and Feroz Khan on the ground that Mst. Rajan had re-married. In the above suit ultimately on 14-2-1977, a decree for possession of the suit property was granted in favour of Mst. Hassan Bi and others. Bagga Khan and some other persons then filed an application under section 152, C.P.C. For amendment of the decree of the High Court passed on 14-2-1977, on the ground that the decree was at variance with its judgment and that of its previous judgment dated 2-7-1960, as according to the above judgment a decree for joint possession of the suit property excluding 1/8th share of Mst. Rajan, which she inherited as a widow, was required to be passed in favour of Mst. Hassan Bi and other heirs of the deceased under Muslim Law, but the decree for possession in respect of the whole estate of the deceased was passed in favour Mst. Hassan Bi alone. The learned Judge, seized with the above application, amended the decree dated 14-2-1977, and the amended decree was passed vide the judgment and decree dated 23-10-1986, in the following terms:- {{URDU TEXT}}
4. Bagga Khan appellant filed a review petition against the judgment and decree passed on 23-10- 1986, on the ground that even this decree was not in terms of judgment dated 23-10-1986, inasmuch as by virtue of it the decree for Khas possession in respect of whole of the property, inherited by Mst. Rajan as limited owner under custom, has been passed whereas a decree for joint possession to the extent of the shares of Mst. Hassan Bi and other heirs of the deceased Ditta, excluding the 1/8th share of Mst. Rajan, inherited by her under Muslim Law as a widow of deceased, was to be passed in terms of the judgment dated 23-10-1986, as well as the judgment and decree dated 2-7-1960.
5. The review petition filed by Bagga Khan was accepted by the High Court on 26-6-1988 and a decree was passed in a following manner:- "Decree for joint possession of 7/8th share of the estate of Ditta Khan, deceased, situate in village Rakkar, Tehsil Rawalakot, District Poonch, is passed in favour of Mst. Hassan Bi, Atta Muhammad and Makhan Khan, who were plaintiffs in the suit, against Mst. Rajan, Bagga Khan and Feroz Khan, who were defendant in the suit. The suit of the above plaintiffs in respect of the remaining 1/8th share of the said property, which stands inherited by Mst. Rajan as a widow, is dismissed."
6. In the meantime the reversioners of deceased, according to the appellants, got the possession of the entire land in 1985, but as said earlier, the decree was amended in 1988. In the application for restitution of possession filed by the appellants the necessary details were given by the appellants.
However, the trial Court observed that in accordance with the amended decree the parties were to get their joint possession in accordance with their share determined in the amended decree which could be possible by getting the regular partition of the suit land. The trial Court vide its judgment dated 14-6-1994, accepted the application filed by the appellants under section 144, Cr.P.C. And issued a warrant for possession of joint decree with regard to the suit land including the house situate therein in accordance with the share of the appellants and directed Collector District Pooch to hand over the possession to the petitioners (appellants) in accordance with law. The judgment of trial Court dated 14-6-1994, was assailed in appeal by Mst. Khaki Begum before the Court of District Judge Rawalakot which was dismissed vide the judgment and decree dated 23-6-1997, on the ground that the trial Court never passed a decree of the whole land instead decree for joint possession of land to the extent of 7/8th share was passed in favour of Mst. Hassan Bi and others and to the extent of 1/8th share in favour of Bagga Khan who had purchased it from Mst. Khaki Begum. The aforesaid judgment and decree was assailed by Bagga Khan again in the High Court which was dismissed vide the order impugned dated 28-10-1997, by observing that appellants were entitled to the share of 1/8th of the widow whereas the riversioners were entitled to the share of 7/8th share of the property left by deceased Ditta.
7. Mr. Muhammad Sayab Khalid, the learned counsel for the appellants, submitted that during the proceedings of review petition filed by Bagga Khan in 1985, the reversioners of the deceased got the possession of the entire land and all this happened due to the act of the Court, therefore, the appellants, should not have been penalised. Therefore the possession of the entire suit land should be handed over to the appellants.
8. We are afraid that we cannot subscribe to the view putforth by the learned counsel for the appellants. As discussed earlier in the application filed for restitution of possession the learned Judge vide the judgment dated 14-6-1994, observed that the parties were to get their share in accordance with the amended decree of joint possession and in accordance with the prayer made by the revisioners of the deceased. The learned trial Judge issued the warrant for joint possession to the extent of shares of the reversioners including the house. For the aforestated reason the appeal filed by Mst. Khaki Begum was dismissed as being baseless that the trial Court had not passed the decree of Khas possession.
9. Even if we assume the contention of Mr. Muhammad Sayab Khalid to be correct that the reversioners of the deceased got possession of the entire land in 1985 and all this happened due to the act of the Court for which the appellants should not be penalised, therefore, the possession of the entire suit land should be handed over to the appellants; the acceptance of such a prayer would result in further complications. Moreover, the share of the appellants in the suit land is much less to the tune of 1/8th whereas the share of the respondents is 7/8th. In such a situation the fault, if at all of the Court, could not be cured by handing over the major portion of the and to the appellants. However, the appellants, if so advised, may pursue their remedy for recovering the produce of the land from the respondents for the period the land is claimed to have been remained in possession of respondents. Though we are of the firm view that possession of the suit land on the ground remained joint with the parties it was in fact due to a confusion by passing a decree of the whole land that it remained on papers for some time but the moment the decree was amended the previous possession stood restored.
10. Before departing we may observe that the parties are facing the agony of prolonged litigation since 1955 and the matter could not be finally resolved one way or the other; therefore, keeping in view the circumstances of the case, we, by exercising our inherent powers under Order XLIII, rules 3 and 4, pass a decree of joint possession of 1/8th share to which Mst. Rajan was entitled as widow of the deceased in favour of appellants, Bagga Khan and others, of the suit property situate in village Rakkar, Tehsil Rawalakot, District Poonch, and a decree for joint possession of 7/8th share of the estate left by deceased Ditta is passed in favour of Mst. Hassan Bi, Atta Muhammad and Makhan Khan, who were plaintiffs in the suit against Mst. Rajan, Bagga Khan and Feroz Khan, who were defendants in the suit. The suit filed by Bagga Khan and Feroz Khan, plaintiffs, in respect of remaining 1/8th share of the said property which stands inherited by Mst. Rajan as a widow is dismissed. The appellants shall forthwith be put in the joint possession of the suit property alongwith the respondents to the extent of 1/8th share. The appeal in the terms indicated above is accepted with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.