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Civil Petition for Special Leave to Appeal No. 6‑P of 1970, decided on 28th March 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, dated the 20th November 1969, in Letters Patent Appeal No. 29 of
1969).
Art. 144‑Adverse possession Co‑sharer‑Sale of land by A and Kin favour of H‑Recital in sale deed that one M (not party to sale deed) had no share in land‑Such recital, held, not binding on M who claimed to be co‑sharer of A and K‑Nor can H claim that M having been not in possession of land for a long period her right and interest in property were barred by adverse possession‑Possession of one co -sharer possession of all unless ousted by some definite act.
Mohammad Khan, Advocate Supreme Court instructed by Abdul Samad Khan, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 28th March 1970.
.‑This is a petition for special leave to appeal from an order of a Division Bench of the High Court of West Pakistan; Peshawar Seat, summarily dismissing a Letters Patent Appeal from a judgment of a learned Single Judge of the same High Court, dismissing a second appeal.
The dispute to an area of 110 kanals and 11 marlas of land situated in Mahal Maira Prang, Charsadda Tehsil. These lands were sold on the 21st March 1926 to two brothers Abdullah Khan and Abdul Karim Khan by a registered sale deed, executed by Akbar Khan and Hastam Khan. The purchasers claim that they took possession of the land but in the revenue record effect was not given to the sale and the name of Akbar Khan and Hastam Khan continued to appear therein in the column of co- ownership, as also the name of one Mst. Mehr Tabana was shown as a co‑sharer owner of these lands.
On the 30th September 1963, therefore, the heirs of Abdullah Khan brought a suit for a declaration, that they were the owners of the land and were in its possession for the last 37 years and that the name of Mst. Mehr Tabana predecessor‑in‑interest of some of the respondents herein was wrongly mentioned in the revenue papers. According to the petitioner the share of Mst. Mehr Tabana had also been sold by Akbar Khan and Hastam Khan. In any event Mst. Mehr Tabana and her heirs were not entitled now to any interest in the land as she had never raised any objection to the possession of the purchasers. In the alternative, they claimed that they had acquired title to these lands by adverse possession.
The trial Court gave them a declaration that they were owners in possession by purchase of the shares of Akbar Khan and Hastam Khan, but not of the share of Mst. Mehr Tabana. The suit was dismissed as against her.
On appeal by the petitioners the Additional District Judge, Peshawar confirmed the decision of the trial Court and the High Court in second appeal confirmed the decision of the Courts below. The Letters Patent Appeal was dismissed in limine. The petitioners now seek special leave to appeal.
It is contended on their behalf that the sale deed in favour of the petitioners clearly recites that the lands belong to the vendors Akbar Khan and Hastam Khan alone and that Mst. Mehr Tabana had no share in it. This declaration will not bind Mst. Mehr Tabana who was not a party to the deed. It cannot, therefore, be claimed that she too had also sold her share.
Her right title and interest in the properties were also not barred as clearly the petitioners, by their purchase, became co- sharers with Mst. Mehr Tabana and possession of one co‑sharer is possession of all co‑sharers unless it is established that a particular co‑sharer has been ousted from possession or denied a share in the property concerned by some definite act of ouster. In the present case there was no such evidence. Therefore, no question) of adverse possession arose.
The Courts below have rightly dismissed the suit of the petitioners so far as Mst. Mehr Tabana is concerned and we see no reason to interfere.
This petition is, accordingly, dismissed.
Leave refused.
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