' This revision petition is directed against concurrent judgment decrees of the learned two Courts whereby suit for possession filed by the petitioners has been dismissed. The dispute relates to the estate of one Abdur Rehman.
2. The case of the petitioners in the plaint was that Abdur Rehman was the owner of the disputed land who died on 2-4-1944 (date of his death according to the written statement is 26-4-1943). It was averred that on the death of Abdur Rehman Mutation No,183 was attested on 20-4-1944 (Exh.P.2) in favour of Mst. Ghulam Fatima respondent No,1 till her life or re-marriage. Three years thereafter she remarried Akbar Ali, the predecessor-in-interest of the petitioners and respondents Nos.2 and 3. It was further averred that Akbar Ali had filed a suit in his life time on 2-12-1963 but the said suit was withdrawn on 8-1-1968 with permission to file at fresh suit. It appears that in the previous suit Mst. Ghulam Fatima had denied her marriage with Akbar Ali. However, on the death of Akbar Ali on 11-1-1970 Mutation of Inheritance No,589. Was attested on 20-3-1970 according to which respondent No,1 got 1/16 share in the estate of Akbar Ali. It was averred that if she denied her marriage with Akbar Ali, she was not entitled to inherit the estate of Akbar Ali, and therefore, Mutation No,589 dated 20-3-1970 was not operative qua the right of the petitioners and was liable to be cancelled to that extent. It was further averred that respondent No,1 and the petitioners were in joint possession of the disputed land. However, four years prior to the institution of the suit she got her name recorded in the Khasra Girdawari in collusion with the Revenue officials. In fact the land was in possession of the tenants and the entries in the Revenue Record were against facts. It was further averred that at the time of death of Akbar Ali, plaintiffs Nos.2, 3 and 5 were minors and they continued to be minors (when the suit was filed) respondent No,2 Mst. Zubaida Begum and respondent No,3 Suleman, respectively the son of daughter of Akbar Ali, were also arrayed as pro forma defendants. No relief was, however, claimed against them.
3. The suit was contested by respondent No,1 alone. A number of preliminary objections were taken including that the suit was barred by time. It was asserted that cause of action statedly accrued in favour of the petitioners in 1947 :when petitioners Nos.2 to 5 the sons and daughters of Akbar Ali were not even born. Therefore, they had no right to file the suit. Mst. Sawaran, petitioner No,1, was not lawfully wedded wife of Akbar Ali because she was already married to one Muhammad Hanif and petitioners 2 to 5 were illegitimate children of Akbar Ali. It was further averred that Akbar Ali had filed a suit in his lifetime which was withdrawn, and therefore, the petitioners were estopped to bring the suit, they had no cause of action. It was further averred that respondent No,1 was not the widow of Akbar Ali and she had wrongly been shown as widow of Akbar Ali 'in Mutation No,589, the suit was bad for multifariousness of causes of action and proper Court-fee had not been paid. Also that respondent No,1 was in continuous and uninterrupted possession of the land in dispute since 1944, and therefore, even if the right of the petitioners to the land was established she had perfected her title by way of adverse possession. It was further asserted that on the death of Abdur Rehman Mutation No,183 was duly attested in favour of respondent No,1 and since then she is owner in possession of the disputed land. The averment that she entered the estate of Abdur Rehman deceased for life was not specifically controverted.
4. Necessary issues were framed and the suit was tried. Vide judgment and decree, dated 2-6-1988 the suit filed by the petitioners was dismissed. On Issue No,1 the learned trial Court found that Mutation No,183 attested on 20-4-1944 not having been challenged the suit was not maintainable.
Issues Nos.2 and 9 were dealt with together. The learned trial Court found that respondent No,1 has been in possession of the land in dispute since the death of Abdur Rehman and had not given any share of produce to anyone. Therefore, the suit was barred by time and respondent No,1 had perfected her titled by way of adverse possession. On Issue No,3 it was found that the petitioners were the legal heirs of Akbar Ali deceased. On issue No,4 it was held that Akbar Ali had filed a suit which he withdrew and thereafter did not bring any suit in his lifetime and thus the petitioners were estopped to file the suit. On issue No,10 it was held that respondent No,1 was the widow of Akbar Ali while Mst. Sawaran was also widow of Akbar Ali. While answering Issue No, 11, it was found that the Mutation No, 183 attested on 20-4-1944 did not show that respondent No,1 entered possession of the property as a limited estate holder and there was no evidence to show that Abdur Rehman was governed by custom.
5. The petitioners assailed the said judgment and decree in an appeal which was dismissed vide judgment and decree dated 20-6-1992. The learned First Appellate Court reversed the finding of the learned trial Court on Issue No,1 while maintained the findings on Issues Nos. 4, 2 and 9. On Issue No,11 it was found that Mst. Ghulam Fatima had entered the property as a widow of Abdur Rehman and was thus a limited estate holder.
6. Respondents Nos.1 and 2 are represented by a learned counsel. His name has correctly been printed in the cause list. He was awaited up to the close of the day but he did not appear.
7. The learned counsel for the petitioners was heard. He contends that with the findings of the learned first appellate Court that respondent No,1 was a life estate holder, the predecessors of the petitioners had become co-sharer with respondent No,1 and, therefore, neither the plea of adverse possession w4 sustainable nor the suit could be said to be barred by time. He placed reliance on Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). He contended that respondent No,1 was entitled to only 1/4th share in the estate of Abdur Rehman as his widow and remaining 3/4th devolved upon Akbar Ali, real brother of Abdur Rehman, who had died issueless. It was further contended that in fact Akbar Ali was co-sharer with Ghulam Fatima, she has not been in exclusive possession of the land in dispute and material evidence was misread by the learned two Courts.
8. I have considered the submissions made by the learned counsel for the petitioners and have perused the record. As a result of the judgments of the learned two Courts the petitioners have been non-suited on the grounds that the suit was barred by time. Respondent No,1 had perfected her title by adverse possession and that they were estopped to file the suit.
9. It has been found by the learned First Appellate Court that Mst. Ghulam Fatima was a limited estate holder. While respondent No,1 had not specifically controverted this assertion in written statement. P.W.1 to P.W.3 deposed that the estate of Abdur Rehman was mutated in favour of Mst.
Ghulam Fatima till life. No evidence was led by respondent No,1 to show that she inherited the estate of Abdur Rehman as a full owner. Prior to promulgation of Punjab Muslim Personal Law (Shariat Application) Act (No, IX of 1948) the rule of inheritance was either the Customs or the Personal Law. Undisputedly, at the time of death of Abdur Rehman, his real brother Akbar Ali was alive. Therefore, the entire estate of Abdur Rehman could not possibly be inherited by respondent No,1 under the personal law. The only other rule applicable was the general customs of Punjab under which a widow inherited only a life estate. I am, therefore, clearly of the view that the finding of the learned First Appellate Court that Mst. Ghulam Fatima entered the disputed property as a life estate holder is not open to any doubt.
10. It may be noted that when it is shown that the widow under personal law, would have succeeded to something much less in extent, the presumption is that the widow succeeded for her life.
' In this view, I am fortified by Dr. Mir Haider v. Muhammad (14 P.R. 1911).
11. Assuming that the limited estate of respondent No,1 terminated in 1947, the entire land reverted to the collaterals of Akbar Ali and respondent No,1 was not co-sharer with anybody else, even then the question is whether inaction of the reversions for more than 12 years of re-marriage of a widow makes her an absolute owner by prescription. The question came under consideration before the Allahabad High Court in Tarif and others v. Phool Singh and others (AIR 1927 Allahabad 274). It was observed that there, could not be an automatic enlargement of her estate but she must be presumed to have continued in possession of the same limited estate of which she was in possession since the death of her husband. The question then came under consideration of this Court in Desa and others v. Dani and others (AIR 1929 Lah. 327) wherein the rule laid down in the case of Tarif and others supra was followed. In the said case sons of the widow from second marriage had claimed title to the land of the first husband of the widow on the ground that she had remained in possession of her first husband's estate more than 12 years after her re-marriage.
The plea was repelled. The question was also considered in Harisingh Hiralal Dangi v. Ramchandra Takhat Singh Dangi and another (AIR 1957 Mahh-Pra 238) in which it was observed that when a Hindu widow enters the property of her former husband the presumption is that her possession even after re-marriage is only in that capacity, and therefore, she can only prescribe for a limited estate as an heir to her first husband and she does not become absolute owner of the property without an assertion of absolute title on her part. Reference may also be made to Darmu Btarati and others v. Buli Dei and others (AIR 1964 Orissa 25) in which it was observed that when a widow enters possession as limited owner the character of her subsequent possession after re-marriage would not be changed in the absence of a change of her animus and in such a case it is for the widow to show that she had asserted and declared her absolute rights and was possessing adversely as absolute owner.
12. The principle enunciated in the aforesaid judgment is that possession of a widow after re- marriage for more than 12 years does not ipso facto convert her possession into adverse unless it was established that she had openly denounced title of the rightful owner. Therefore, mere possession for any length of time will not mature into title. This is the principle which applies to all cases of adverse possession. No evidence is available on the record to satisfy the ingredients of adverse possession. Respondent No,1 who appeared as her own witness did not even assert any hostile or overt act to the knowledge of the rightful owners. The first suit was filed by Akbar Ali on 2- 12-1963 and written statement was filed in the said suit on 19-1-1964 wherein respondent No,1 claimed exclusive title to the land in dispute. This could be construed as disclaimer of the title of the rightful owner, even then the suit filed in 1975 was within a period of 12 years.
13. If her statement that she did not re-marry Akbar Ali was accepted, it would mean that her life estate did not terminate in 1947 and she continued to be in possession of the estate of Abdur Rehman. Her life, estate, however, terminated under section 3 of the Punjab Muslim Personal Law (Shariat Application) Act (West Pakistan Act No,V of 1962) and she was entitled to 1/4th share of the estate of Abdur Rehman and Akbar Ali become a co-sharer with her, possession of one-co-sharer enures to the benefit of all co-sharers and neither the question of limitation nor adverse possession could arise.
14. The finding of the learned two Courts that respondent No,1 was in exclusive and uninterrupted possession of the disputed land is not otherwise sustainable. The learned two Courts did not carefully examine the evidence produced in the case and relied on oral evidence. The documentary evidence, particularly Exh.P.2, Exhs.D.6 and D.7, which have material bearing, were not at all considered. According to Mutation No,183, attested on 20-4-1944 (Exh. P.2) Abdur Rehman owned 1/24th share in Khata No,108 and this mutation was for this share, she did not enter in possession of any specific area. The relevant Jamabandi for the said year was not produced. The land in dispute is comprised in five Khatas, the bulk being in Khata No,103. The total land in other Khata is 20 Kanals, 5 Marlas and 1/24th (for which the suit was filed) share of respondent No,1 will be less than one Kanal. According to the Jamabandi for the year 1960-1961, in respect of Khata No,103(Exh.D.6), Akbar- Ali is also shown as a co-owner with respondent No,
1. The Jamabandies regarding other Khatas were not produced. Thus, at least to the extent of Khata No,103, Akbar Ali was a co-owner with respondent No,l. Khasra Girdawari from Kharif 1954 to Rabi 1973 was produced as Exh.D7. The Khasra Numbers in this document partition to Khata Nos.103, 104 and 100. In the column of ownership the entry is "Ghulam Fatima etc.", and in the cultivation column either the owners are recorded as in possession or the land is tenanted Akbar Ali's position as a co-sharer and his possession even on the part of the disputed land (to the extent of Khata No,103) was sufficient to defeat the plea of adverse possession.
15. As far as the question of estoppel is concerned, the only circumstances taken into consideration by the learned two Courts was filing of the suit by Akbar Ali, the predecessor of the petitioners, and its withdrawal. Merely because Akbar Ali had not filed another suit in his lifetime, it could not be said that the petitioners, had waived their rights in the property. Waiver is a conscious and deliberate relinquishment of one's right. Akbar Ali died while possessed of 3/4th share of the estate of Abdur Rehman and it devolved upon the petitioner on his death.
16. The learned First Appellate Court while answering Issues 2 and 9 relied on F.A. Khan v. The Government of Pakistan (PLD 1964 SC 520). It was observed tin the said judgment that starting point under Article 120 of the Limitation Act, was when right to sue accrued. This was a case of a civil servant who had assailed the order of his dismissal. The suit was held to be within time from the date of dismissal of the appeal by the appellate authority. The other judgment relied upon by the learned First Appellate Court was Mst. Karim Jan and three others v. Anwar Khan and another (PLD 1984 Peshawar 111). In the said case, the mother and the sisters had relinquished their right in favour of their brother Anwar Khan, a mutation was duly attested on 9-8-1943 and in all subsequent Jamabandies Anwar Khan was recorded as the sole owner of the land. The suit filed on 7-6-1972 was held to be barred by time. The mutation in question was found to have been duly attested.
17. In view of the above, this revision petition is allowed. The impugned judgment and decree are set aside and a decree for joint possession to the extent of the disputed land measuring 34 Kanals, 19 Marais is passed in favour of the petitioners and the respondents in terms that while respondent No,1 is entitled to 1/4 of the disputed property, the petitioner and respondents Nos.2 and 3 are entitled to the remaining 3/4 of the disputed property. No order as to costs.