' The facts of the case giving rise to this appeal are that land in dispute belonged to Ahmad Ali son of Ghasita, who was collateral of Khuda Bux. Ahmad Ali and Khuda Bux has common ancestor.
Ahmad Ali died issueless before the formation of Pakistan and under the custom, the property in dispute devolved upon his widow Mst. Jan Bibi. Jan Bibi died in 1947, therefore, under the custom, the property devolved upon the heirs of Khuda Bux. Khuda Bux left three sons, Noora, Dadan, and Kada. Kada died issueless. The appellants are the descendants of Dadan, and the respondents are the descendants of Noora. Another Ahmad Ali grandson of Noora had previously brought a suit for declaration on the same ground claiming 1/16 share. According to him, half of the land on the death of Mst. Jan Bibi went to the descendants of Dadan. The respondents in that case were the defendants as they did not join Ahmad Ali in the suit. The appellants were also party to the suit as defendants.
2. The suit was decreed and the appellants failed up to the Letters Patent Appeal. Then the respondents brought a suit for declaration on the same ground alongwith Ahmad Ali claiming 1/2 share as descendants of Noora. The necessity of bringing the suit arose because the appellants urged before the Revenue authorities that Noora was not the son of Khuda Bux, but was his pichlag, therefore a mutation was sanctioned in favour of the appellants. The suit was resisted by the appellants who came forward with the same contention that Noora was not the son of Khuda Bux, but was his pichlag.
3. The suit was dismissed by the learned Civil Judge, Gujrat, vide his judgment and decree dated 16-10-61 on the ground that it was time-barred and was not maintainable in the present form. The name of Ahmad Ali was deleted from the 'plaintiffs' on the ground that he had already obtained a decree and taken malkana possession of his 1/16 share. Since the name of Ahmad Ali was deleted from the list of the plaintiffs and the respondents were not in possession, it was held that without seeking possession, the suit was time-barred under proviso to section 42 of the Specific Relief Act.
4. The learned Additional District Judge held that the suit was maintainable in the present form and set aside the judgment and decree of the learned trial Judge and remanded the case for re- decision on the point of limitation.
5. Since the learned Additional District Judge has not expressed any final opinion on the point of limitation, no finding can be made on this point. So the authorities cited by the learned counsel for the respondents on the point of limitation cannot be discussed. According to the previous judgment the descendants of Noora, who are the respondents, are co-sharers with the appellants. The possession of a co-sharer is always on behalf of all the co-sharers, unless some overt act is done setting up adverse possession or right of ownership is denied. In the present case since the right was denied, it cannot be said that the possession of the appellants will be on behalf of the respondents. Since the respondents were claiming share, they should have asked for joint possession. The decree for mere declaration that they have share would be ineffective because such a decree cannot be executed.
The respondent cannot on the strength of such a decree ask the Revenue authorities to show them as in joint possession unless a decree for joint possession is passed in their favour. No doubt a prayer is made that the entries of the revenue record are wrong, but it is not said that the entries to what extent are wrong. If the entries are wrong for the reason that respondents are shown as co- sharers, it would not mean that the entries in not showing them as in joint possession should also be wrong when this is not the contention. Moreover, there is no prayer that the Revenue Department be directed to correct the entries. Since there is no such direction, the Revenue Department is not bound to obey the simple declaratory decree which is not executable.
Admittedly the respondents are not in possession of any portion of the land. If they had been in possession of some portion, of course they would hay been considered as in joint possession of the whole property, the property being joint. No prayer was made before the learned Additional District Judge nor before this Court for the amendment of the plaint for seeking joint possession. The suit, therefore, obviously is hit by the proviso to section 42 of the Specific Relief Act.
6. Learned counsel has cited PLD 1961 Kar. 165, but they are all on the question of possession and not on the proviso to section 42 of the Specific Relief Act. In the previous suit, Ahmad Ali had asked for joint possession, therefore, the suit was maintainable. The respondents did not ask for such a relief. I, therefore, came to the conclusion that the learned trial Judge rightly held that the suit was not maintainable in the present form. The learned Additional District Judge has found that the suit is maintainable in the present form holding that the deletion of the name of the Ahmad Ali was incorrectly done. Of course if Ahmad Ali had been one of the plaintiffs, he being in joint possession of 1/16 share, the suit would have been maintainable in declaratory form. I cannot agree with the learned Additional District Judge that the name of Ahmad Ali was incorrectly deleted from the list.
Since he had already obtained a decree and under the decree had taken joint possession, he was not even a proper party and thus his name was rightly scored off by the learned trial Judge.
7. As a result of the observations made above, I accept the appeal and setting aside the order of remand, dismiss the suit on the ground that it is barred under proviso to section 42 of the Specific Relief Act. 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.