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Civil Petition for Special Leave to Appeal No. 33‑P of 1970, decided on 3rd April 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, dated the 11th November 1969, in Regular Second Appeal No. 277/187 of 1960).

Art. 144‑Adverse possession Co‑heirs‑Possession of one co‑heir, possession in law of all co‑heirs‑Mere non participation in profits of property by one co heir and exclusive possession by others‑Not sufficient to constitute adverse possession‑Persons failing to show ouster of co‑heir from disputed property or that they were in its hostile possession‑High Court, held, perfectly justified in holding that adverse possession not proved.

Peer Bakhsh Khan, Advocate Supreme Court instructed by Muhammad Tariq Khan, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 3rd April 1970.

The dispute between the parties is in respect of property left by one Amar Din. Amar Din died in the year 1912. He was survived by his four sons, namely, Hakeem Khan, Fazal Khan, Abbas Khan and Izzat Khan. Abbas Khan died issueless. Hakeem Khan had left in the life time of his father, Amar Din. On his return to his village, a year before the institution of the suit, he demanded his 1/3rd share out of the property left by his father. This claim was resisted. He, therefore, filed a suit for possession of his 1/3rd share in the said property. The learned Senior Sub‑Judge, Bannu, by judgment dated the 12th December 1959, held that the respon dent Hakeem Khan was the son of Amar Din. He further held that the petitioners were in adverse possession of the suit land for over 12 years and dismissed the suit. On appeal, the learned District Judge, Derajat, by judgment dated. the 13th June 1960, held that the petitioners have not shown that their possession was adverse to the knowledge of Hakeem Khan and, therefore, the suit of the plaintiffs ought to have been decreed. He, there fore, accepted the appeal. Petitioners challenged this judgment in Regular Second Appeal No. 277/187 of 1960, before the High Court of West Pakistan, Peshawar Bench. The High Court, by judgment dated the 11th November 1969, dismissed the appeal on the ground that the petitioners have failed to show that they were in adverse possession of the property in dispute. The petitioners seek special leave to file an appeal against the said judgment.

In support of the petition, Mr. Peer Bakhsh, learned counsel for the petitioners, has contended that no mutation was effected on the death of Amar Din in favour of respondent Hakeem Khan. That Hakeem Khan did not participate in the profit of the property for more than 12 years and the petitioners being in exclusive possession of the property in dispute for more than 12 years must be held to be in its adverse possession. The con tention of the learned counsel has not impressed us. Admittedly, Hakeem Khan is one of the co‑heirs of deceased Amar Din. It has been rightly pointed out by the High Court that it is well settled that possession of one co‑heir is in law the possession of all the co‑heirs. Mere non‑participation in the profit of the property by one co‑heir and exclusive possession by the others will not be sufficient to constitute adverse possession. The petitioner have failed to show that there was ouster of Hakeem Khan from the property in dispute and they were in hostile possession of the property in dispute. In these circumstances, the High Court was perfectly justified in holding that the petitioners have failed to prove their adverse possession in the property in dispute. There is no force in the petition which is dismissed.

Leave refused.

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