SAYED NAJAM-UL-HASSAN KAZMI, J--Muhammad Nawaz appeallant fileds a suit titled "Muhammad Nawaz v. Mst. Ghulam Fatima and others" while respondents (Ameen Ullah others ) filed suit for possession, titled, "Aman Ullah and 2 others v. Muhammad Nawaz".
2. Case of the appellant (Muhammad Nawaz) was that he purchsed land from from Mst. Bano, limited estate holder, through sale-deed, dated 27.9.1952 the sale was subsequently challenged by the reversioners of last-male-owner, namely, Langar Khan, which suit was decreed on 24.6.1954.
The limeted estate terminated by Act V od 1962 with the result that the land was to be distributed among the legal heirs. As a result thereof , 1/4th of the estate was to be inherited by Mst. Bano as widow of Langar Khan , while the rest was to go to the respondents. It was alleged that the land was mutated in toto on favour of the reversioners. Appellant, therefore filed the suit to maintain his title on the strength of purchase made by him from Mst. Bano In the alternative, it was pleaded that decree for declaration of ownership on the basis of adverse be passed. In the other suit, the reversioners claimed possession on the basis of decree dated 24.6.1954 as the sale made by the limited estate holder was declared to be ineffective on 26.6.1954. It was alleged that the widow died on 11.3.1975, whereupon the land devolved upon the last- male-owner and that the respondents were the heirs and entitled to get the land in proportionate shares. The to suits were consolidated.
3. After issues and evidence, learned Civil Judge found all the issues in favour of Muhammad Nawaz appellant and held that he had acquired title by adverse possession. As a result thereof the suit filed by the reversioners was dismissed. In appeal, the learned District Judge Sargodha, held that the reversioners were entitled to 3/4th share of the suit land and that 1/4th share of the land, held by widow would go to the appellant Muhammad Nawaz.
4. In this second appeal, filed by Muhammad Nawaz appellant, purchaser from widow, the main grievance is that the learned District Judge, wrongly held that the appellant would get 1/4th share of 39 kanals. The case of appellant is that he would get 1/4th of the total estate being the widow's shares as the widow sold the entire property to the appellant.
5. Learned counsel for the respondent submitted that after minute study of the file, he had reached the conclusion that the appellant would get 1/4th share of the estate being the share of the widow Mst. Bano. It was added that since Mst. Bano had made certain transactions during her life-time, prior to the sale in favour of the appellant the same will have to be excluded from her share and whatever area would be left from her share, would go to the appellant. In this regard, learned counsel relies on the additional documents which are being sought to be produced through application under Order XLI, Rule 27 of CPC. Learned counsel for the appellant submitted that though in principle, he does not oppose the proposition that the appellant would get 1/4th share of the estate of Langar Khan, being to heir of widow but the respondent should not be allowed to lead additional evidence. He further submitted that the appellant had raised the plea of adverse possession which was accepted by the learned trial Court but was not attended to by the learned District Judge.
6. After hearing learned counsel for the parties, it is observed that both the learned counsel, in principle agree, that Mst. Bano deceased, could not sell the entire estate of Langar Khan and that the sale made by her, to the extent of her own share would be valid. It is also not disputed that the widow would be entitled to 1/4th share from the estate of Langar Khan. The dispute is only with regard to the exact area owned by Langar Khan and the exact area of land which would fall to the lot of Mst. Bano as her 1/4th share in the estate of Langar Khan. In this regard, both the parties, have their different view point as to the exact area owned by late Langar Khan. Another dispute is about the sale, if any, made by Mst. Bano prior to the sale made in favour of the appellant. It is also observed that the question of adverse possession though attended by the learned trial Court, was not considered by the Appellate Court.
7. In this view of the matter, it is held that the appellant will be entitled to the extent of 1/4th in the estate of Langar Khan, being the share of Mst. Bano deceased and sale in his favour, to this extent can successfully be enforced. The learned District Judge, fell in error, in holding that the appellant would be getting 1/4th share of land measuring 39 kanals. As a matter of fact record indicates, that the land owned by Langar Khan was about 234 A kanals. If it is so, then 1/4th share of Mst. Bano would be approximately 39 kanals and to this extent, the appellant can successfully retain title, provided Mst. Bano had not made any other sale from her share, prior to the sale in favour of the appellant. Another question for consideration would be as to whether Mst. Bano had previously sold any part of land from her share. If the answer is in affirmative, the same will have to be adjusted from the share of the appellant. Since this question will require further inquiry, and the parties are at issue on this point, therefore, the case will have to be remanded to the learned District Judge, for further inquiry. Both the parties shall be at liberty to lead evidence, for and in support of the respective contentions. After additional evidence, the learned District Judge will determine, if any part of the land was sold by Mst. Bano to any other person, from her on share, prior to the sale made in favour of the appellant and if such sale is proved, the same will be adjusted from the share of Mst. Bano and the .Residue would fall to the lot of the appellant. It is also noted that the issue of adverse possession was not properly attended to by the learned District Judge which will now be decided afresh, by the learned appellate Court on its on merit and in accordance with law.
8. For the reasons above, this appeal as well as C.M. No. 128-C of 1998 are allowed and the case is remanded to the learned District Judge for decision of the appeal afresh, in the light of the observations herein above.