' On 8-1-1979 the petitioner filed a suit. In the plaint it was alleged that the suit land measuring 8 kanals, 8 marlas was owned by Nabi Bakhsh son of Jhandu. On his death it was mutated in favour of his widow Barkat Bibi. She died in the year 1966. But the land came to be mutated in favour of respondents vide Mutation No, 722 attested on 4-9-1968. The petitioner sought to challenge the said mutation on the ground that she is the successor-in-interest of Kharati Khan son of said Ghulam Ghaus Khan son of Imam Bakhsh. In their written statement the respondents did not at all challenge the said assertion of the petitioner on merits, rather pedigree table drawn in para. 1 of the plaint was admitted to the correct in reply thereto. However, they objected that the suit is barred by time. The learned trial Court proceeded to dismiss the suit holding it barred by time vide a judgment and decree, dated 23-6-1980. A learned Additional District Judge, Faisalabad dismissed the first appeal filed by the petitioner on 24-5-1984.
2. Learned counsel for the petitioner contends that the impugned judgments and decrees suffers from error of jurisdiction inasmuch as they are based on wrong assumption of law of limitation on the part of learned lower Courts. Learned counsel for the respondents on the other hand has tried to support the impugned judgments and decrees.
3. I have gone through the copies of the record appended with this civil revision. I find that the learned Trial Court proceeded to assume that the suit is governed by Article 141 of the Limitation Act, 1908 which provides for filing of suit for possession within 12 years of the death of the widow.
Learned Additional District Judge has very correctly observed that the said Article ceased to have effect after the promulgation of Muslim Personal Law (Application) Act, 1948. He, however, proceeded to hold that the suit is governed by Article 144 of Schedule to the Limitation Act, 1908.
However, he proceeded to observe "as the present suit has been filed after the expiry of 12 years so it is clearly barred by time." To my mind this statement has been made just in vacuum. The learned Additional District Judge has not bothered to state as to when the said period of 12 years would commence.
4. I find that both the learned lower Courts have very conveniently opted to overlook what is obvious on the face of pleading that the claim of the petitioner that she is a lawful heir and entitled to inherit the estate of Nabi Bakhsh son of Jhandu had not at all been denied by the respondents. In this state of pleadings the law laid down by the Supreme Court of Pakistan in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) came squarely applicable. The moment succession opened all of the eligible heirs including the petitioner became co-heirs and thus co-sharer A in the suit-land: There is no allegation of ouster. The mere fact that the petitioner was not being paid any share in the produce would not constitute ouster. In fact I find that the plea of adverse possession has not even been raised in the written statement. Needless to add that under said Article 144 limitation commence when the possession of the defendants becomes adverse. There is no plea, no evidence and of course no findings that the possession of the respondents was adverse. In this view of the matter the limitation never commenced against the petitioner. In view of the admitted fact that petitioner is heir as pleaded by her in the plaint, impugned mutation Exh. P-2 on the face of it was illegal and void and there is no question of any limitation for challenging such a mutation. Reference is made to the case of Moolchand and 9 others v. Muhammad Yousuf and 3 others (PLD 1994 SC 462). I, therefore, reverse findings of the learned Courts below on Issue No,4 and hold that the suit was within time.
5. I have already stated above, that only material averment in the plaint that the petitioner is an eligible heir to the estate of Nabi Bakhsh stands admitted. I am not, therefore, inclined to remand back this case.
' Particularly when said admission in the written statement further stands confirmed by Najeeb Ullah respondent No,4 as D.W.3 when he states that the said Abdullah Khan and Kharati Khan were alive when Nabi Bakhsh died.
' In view of the above discussion, I allow this civil revision. The judgment and decrees passed by both the learned lower Courts are set aside and it is hereby declared that the petitioner has 1/4 share in the estate of Nabi Bakhsh son of Jhandu i.e, suit land measuring 8 kanals, 8 marlas while the respondents are entitled to 3/4 share thereof and that the parties are in joint possession having said shares in the suit-land. No order as to costs.