' KHAWAJA MUHAMMAD SAEED, J.---This appeal, with leave of the Court, is directed against the judgment of the High Court passed on 5-11-2001, whereby while allowing the appeal filed by plaintiff-respondents, the judgment and decree ; passed by District Judge Bhimber on 31-8-2000, was set aside.
2. The dispute between the parties is in respect of land measuring 18 kanals 8, marlas comprising khewat No,64 Khatoonies No,1761/2063 to 1764/2046, situate in village Daura Tehsil Bhimber. The contesting respondents brought a suit for declaration and joint possession against the defendant- appellants in the Court of Senior Civil Judge Bhimber on 19-2-1990 on the ground that their common ancestor Hasat Khan was tenant of this land, who had two sons namely, Chiragh Din and Muhammad Ramzan. Muhammad Ramzan' was predecessor-in-interest of the plaintiff- respondents. Out of defendant-appellants, , appellants No,6 to 8 are the sons of ..Chiragh Din whereas remaining appellants 1 to 5 are the legal heirs of his deceased son Faiz Alam. According to the plaintiff-respondents at the time of death of Hasat Khan both his sons Chiragh Din and Muhammad Ramzan were alive. Hasat Khan had ancestral property in Pakistan which after his death was mutated in the name of his two sons, namely Chiragh Din and Muhammad Ramzan. On the death of Hasat Khan the defendant appellants got the mutaiton of the suit-land attested exclusively in the name of Chiragh Din to exclusion of his brother Muhammad Ramzan vide Mutation No,901 on 15-6-1958. On the same date Mutaiton No,902 was attested in the names of the present appellants. After the enforcement of Azad Jammu and Kashmir Land Reforms Act 1960, (thereinafter to be referred as the Act.1960) the appellants got the ownership rights of this land vide Mutation No,1334 attested in their favour on 25-2-1967. According to the plaintiff-respondents these mutations were attested at their back. The defendant-appellants contested the suit by filing their written statements in the trial Court. In the light of the pleadings of the parties the trial Court framed necessary issues and thereafter recorded the evidence of the parties and ultimately vide judgment and decree dated 4-1-2000 allowed the requisite declaratory decree along with joint possession in favour of the plaintiff-respondents. The defendant-appellants availed the right of appeal before the District Judge Bhimber on 12-2-2000. Their appeal was allowed by the said Court and the judgment and decree recorded in favour of the plaintiff-respondents by the trial Court was.Set aside vide judgment and decree dated 31-8-2000. An appeal was taken against the aforesaid judgment and decree of the District Judge, Bhimber before the High Court by the plaintiff-respondents on 21-11-2000. The learned Judge in the High Court vide judgment under challenge dated 5-11-2001 allowed their appeal and by setting aside the judgment and decree recorded by the District Judge Bhimber, restored the decree allowed in favour of the plaintiff- respondents by the trial Court.
3. Mr. Zafar Hussain Mirza, the learned counsel for the appellants, argued that the High Court has failed to appreciate that the plaintiff-respondents had abandoned their interest in the suit-land, therefore, their suit was not maintainable. Alternatively he argued that the suit of the plaintiff- respondents was barred by limitation, as such, was liable to be dismissed summarily on his ground. He in support of his contention placed reliance upon a case titled Nazar Gul v. Islam and 3 others (1998 SCMR 1223), wherein the leave was refused to the petitioner in the background of the following facts. Petitioner had filed a suit for the declaration that he was the owner of 1/4th share in some land whose description was not given by him in his plaint. According to him his predecessor- in-interest had abandoned his ancestral abode and had left for Afghanistan where he died about 40 years back. He claimed that he was the sole heir of his father as such is entitled to such property. The defendants had contested the suit on the ground that property in their possession had been purchased by them from one Mengal who had purchased it from one Zatoo Khan on 2- 12-1952. The suit was decreed by the trial Court on 28-11-1992. On appeal the judgment was set aside and the case was remanded to the trial Court for fresh decision in accordance with law. The remand order was assailed through separate revision petitions by the parties before the High Court. The High Court opined that in the light of the averments made in para 3 of the plaint the plaintiffs suit was barred by limitation and dismissed it on this ground. Petition for leave to appeal filed in the Supreme Court was also dismissed on the ground that in the light of the admitted facts pleaded by the petitioner himself, the judgment of the High Court was unexceptionable. This authority has nothing common with the facts of the present case.
4. The learned counsel for the appellants, further argued that in view of the bar contained in section 32 of the Act 1960, the suit of the plaintiff-respondents in the civil Courts was not maintainable.
5. On the other hand Ch. Muhammad Afzal, the learned counsel for the respondents, argued that the defendant-appellants have brought an inconsistent case than the one which was pleaded by them in their written statement. According to the learned counsel a case set up in appeal beyond the scope of the original pleadings cannot be allowed and considered. He in support of his contention relied upon cases titled Beero v. Mst. Said Bi (1992 SCR 286) and Municipal Corporation Mirpur v. Qazi Muhammad Farooq and 2 others (2000 SCR 388), wherein it is laid down that parties cannot be allowed to depart from their original 'pleadings and set up a new case in appeal before appellate Court. According to him both the trial Court as well as the High Court after discussing the evidence in its minute details concurrently resolved that adverse possession claimed by the defendant-appellants was not proved by them. He further argued that the Supreme Court does not normally interfere with the concurrent findings of facts without proving misreading or non- reading of evidence on the part of the Courts below. The learned counsel further argued that parties were admittedly co-sharers as was pleaded by his clients, therefore, one co-sharer without proving ouster of the other co-sharer cannot plead estoppel or limitation against him ' because the possession of one co-sharer is presumed to be the possession of all the co-sharers having interest in the suit-land. He in support of his contention relied upon cases titled Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and Mst. Salbo Bibi and 3 others v. Gul Rehman and 13 others (PLD 1996 Pesh 1). In these authorities it is laid down that possession of one co-sharer is ordinarily presumed to be the possession of all the co-sharers,. The learned counsel further argued that bar contained in S.32 of the Act 1960, is not applicable in this case as the contesting parties had raised question of their title over the suit-land. The question of title was not one of those matters over which the authorities under the Act 1960, had been vested with any jurisdiction,
6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The dispute between the parties is ;.-1 respect of land measuring 18 kanals 8 marlas which remained in possession of common ancestor of the parties namely Hasat Khan. It is also admitted by the parties that Hasat Khan was survived by his two sons, namely Chiragh Din and Muhammad Ramzan, who were the predecessor-in-interest of the present parties.
Hasat Khan was "tenant of the suit-land and had his ancestral property in Pakistan. There is no evidence that he ever distributed his lands amongst his two sons. The land situated in Pakistan was mutated after the death of Hasat Khan in the name of his two sons, namely, Chiragh Din and Muhammad Ramzan. However after the death of Chiragh Din, his legal descendents, who are presently appellants before this Court got the suit-land mutated in their favour on 15-6-1958 to exclusion of Muhammad Ramzan or his legal descendants who are contesting respondents. They firstly obtained Mutation No,901 on 15-6-1958 in the name of Chiragh Din without disclosing that Hasat Khan had another son namely Muhammad Ramzan. On the same date Mutation No,902 was attested in the name of the appellants by showing Chiragh Din dead. Both these mutations were attested on the same date and at the same time. In these mutations Muhammad Ramzan.s presence was altogether omitted. Subsequently on the basis of Mutation No,902 attested in favour of the appellants they also got a mutation of ownership attested in their favour under the provisions contained in the Act of 1960. When contesting respondents got knowledge of this fact they brought a suit seeking declaration that the above referred mutations be held contrary to law without lawful authority and also sought a decree for joint possession. The trial Court after taking necessary proceedings, as required under law, decreed the suit of the contesting respondents by holding that mutaiton of inheritance of Hasat Khan was illegally attested in the name of Chiragh Din to the exclusion of his brother Muhammad Ramzan. The trial Court also opined that subsequent mutation on the basis of the aforesaid illegal and void mutation was liable to be set aside. The contention of defendant-appellants was not accepted as correct that suit filed by plaintiff- respondents was liable to be dismissed as their possession over the suit, land had ripened into OW worship on account of their adverse possession. However on appeal filed by the appellants, the learned District Judge reversed the findings recorded by the trial Court on the ground that the suit filed by plaintiff-respondents was barred by limitation and that they were not entitled to the estate left by their grandfather. In the light of these admitted facts now we would like to attend the points which have been raised by the learned counsel for the appellants.
7. Much stress was laid by the learned counsel for the appellants to a legal ground that under section 32 of the Act 1960, there was total bar of jurisdiction, therefore, the civil Courts were not justified in law to entertain the suit of the contesting respondents and grant in their favour the requisite relief. As the question of jurisdiction goes to the very root of the case, therefore, this point is resolved at the first instance. We have gone through section. 32 of the Act 1960. Under this provision in subsection (1) a bar has been laid down under which any provision of this Act or any rules or orders made thereunder shall not be called in question in any Court including the High Court or before any authority other than the authority appointed under this Act and a further bar has been created that no Court or authority shall exercise its jurisdiction in respect of any matter which the Commission or an officer acting under the, authority of the Commission is empowered to determine. In subsection (2) of this section a bar has been imposed in respect of grant of injunction or any other order in relation to any proceedings before the Commission or before any officer exercising any function under this Act in relation to anything done or intended to be done by or at the instance of the Commission or such officer. We have discussed in detail the circumstances of the case. In this case on the basis of Mutations Nos.901 and 902 attested on 15-6- 1958 the appellants got attested the mutation of ownership under the provisions of the Act 1960 in their name, in total exclusion of Muhammad Ramzan the second son of Hasat Khan. The appellants on the basis of these mutations have totally denied the title of respondents in unequivocal terms.
These mutations under law have not by themselves vested any title in them. No doubt these were the evidence of title if proved in accordance with law. It is an admitted fact that order recorded by an authority having exclusive jurisdiction in a particular matter would not be, exempted from challenge before a competent civil Court in case the order under challenge is proved to have not been proceeded within the four corners of the statute, as has. Been held in a case titled Dalil Khan and another v. Sardar Khan and 2 others (1979 CLC 104). Under section 9 of Civil Procedure Code, ordinarily the civil Courts have got the cognizance to resolve all disputes of civil nature but if a provision of law is proved to have taken away the jurisdiction of the civil Courts in respect of any matter then such provision is required to be construed strictly. Judging the dispute from this angle it can be said that jurisdiction of civil Court has barred to the extent of such matters which were within the competence of the authorities under the Act 1960. From the provisions of the Act 1960, it becomes clear that disputed question of title between the parties was not one of those matters over which authorities under the Act 1960, have been vested with any jurisdiction, therefore, the question relating to the ouster of jurisdiction of civil Court raised by the learned counsel for the appellants, having no force is hereby repelled.
8. From the material available on record the possession of the appellants over the suit-land is not proved hostile to the plaintiff-respondents. Rather from the record it is proved that for the first time the appellants set up an adverse possession against the respondents when they filed their written statement in, the trial Court. The parties are undisputedly co-sharers in the suit-land. The mutations under which the title is being claimed by the appellants were recorded by concealing the true facts. First mutation was attested after the death of Hasat Khan in the name of Chiragh Din to the exclusion of Muhammad Ramzan son of Hasat Khan and the brother of Chiragh Din. The subsequent mutation was also got attested on the basis of first Mutation No,901 on the same date as has been discussed by us in detail in the preceding paragraphs of this judgment. Admittedly it is an established principle of law that possession of one co-sharer is presumed to be the possession of all other co-sharers until and unless through some cogent evidence the ouster of other co- sharers, not in possession of the immovable property, is proved by one who is in possession of the same. We have discussed that the common ancestor of the parties namely, Hasat Khan had the property in Pakistan as well as in Azad Jammu and Kashmir. The property which he left in Pakistan is under the possession of legal heirs of his son Muhammad Ramzan. He had old tenancy rights in the land in dispute which is under the possession of the legal heirs of his other son namely Chiragh Din. So under these admitted facts keeping in view the principle of law that a co-sharer having possession even on the fractional share of the joint immovable property has got title and interest in every inch of such joint property till the time such property is partitioned amongst the co-sharers by metes and bounds either strictly in accordance with the provisions of law or through' mutual settled terms in private partition, which subsequently is got approved in accordance with the provisions of law. The entries recorded on the basis of the aforesaid two mutations are violative of law. This proposition finds support from the authority titled Bostan v. Sattar Bibi (PLD 1993 SC AJ&K 24) referred by the learned counsel for the appellants wherein it is laid down as under:- "Plaintiff being a co-sharer with male heirs (defendants), though not so recorded in the Revenue Record, she would be deemed to be in continuous possession of her share and any adverse entry in the Revenue Record would not oblige her to challenge the same within a period of six years of the entry, for cause of action in such cases would accrue only when real threat was posed to her title, i,e, when defendants denied her title in unequivocal terms.
' There is 'set another aspect of the matter. It he observed that if the title of the plaintiff-respondent in the suit-land cannot be said to have extinguished, it cannot be argued that as the declaration regarding the entries is time-barred, the decree for joint possession cannot be passed in favour of the plaintiff-respondent despite the fact that she has a subsisting right to the suit-land. It would be paradoxical to say that although her title as co-sharer in the suit-land exists. Yet she is not entitled to a decree for joint possession because in the Revenue Record she has not been recorded as such, despite the fact that it is proved on the record that the said entries are violative of law and are void. Thus, even if it is said that the relief so far as it relates to the declaration that entries in the Revenue Record are void is time-barred, the relief regarding the decree for joint possession prayed for by the plaintiff-respondent cannot be denied."
9. The Supreme Court of Pakistan prior to this authority in a case titled Ghulam Ali and 2 others v.
Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), has laid . Down as follows:-- The main points of the controversy in this behalf get resolved on the touchstone of Islamic Law of Inheritance. As soon as an owner dies, succession to his property opens. There is no state intervention or clergy's intervention needed for the passing of title immediately, to the heirs. Thus, it is obvious that a Muslim'^ estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of Inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the Heirs automatically and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs), like it, want it, abhor it, or shun it. It is the public policy of Islamic Law."
10. In the light of the admitted facts on the death of Hasat Khan his estate had devolved automatically upon his legal heirs in accordance with their shares. In this case the presence of Muhammad Ramzan was concealed when appellants got attested Mutation No,901 on 15-6-1958 in favour of Chiragh Din who was not alive on that date. On the same date they obtained the attestation of Mutation No,902 in their favour by disclosing Chiragh Din as 'dead. The presence of contesting respondents or their father Muhammad Ramzan was concealed. On the basis of these mutations which were not based on true facts the ownership rights were obtained by the present appellants and proforma respondents No,9 to 12, under the provisions of the Act 1960.
In view of above, the learned Judge in the High Court was justified in law in setting aside the judgment and decree allowed by District Judge Bhimber in favour of the respondents, therefore, while dismissing this appeal with costs, the judgment under appeal is maintained.