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Regular Second Appeal No. 527 of 1972, decided on 24th April, 1986.

---S. 42--Limitation Act (IX of 1908), Art. 142--Assertion of title and relief of possession claimed in suit--Limitation for such assertion of title and claim for relief of joint possession on basis thereof, held, could be claimed under Art.142 of Limitation Act, 1908--Suit for such claim would be deemed to be based upon title and technical discontinuation of possession--Limitation is to be applied on basis of averments in plaint.

Mst. Fattan Bi etc. v. Fateh Muhammad etc. P L D 1974 Lah. 458 ref.

---S. 42--Limitation Act (IX of 1908), Art.142--Suit for assertion o1 title and joint possession-- Co-sharer's right to sue--Mere fact that land was under tenancy, held, could not preclude owner from getting symbolic possession as co-sharer--Possession with one co-sharer would be deemed to be possession of all co-sharers, and denial thereof to any co-sharer would entitle him to regain same.

---S. 100--Second appeal--Concurrent findings of Courts below--In absence of misreading of evidence or perverseness on part of lower Courts, finding on question of fact, held, could not be upset in second appeal.

Ch. Adbul Rashid for Appellant.

Ch. Muhammad Abdullah for Respondent.

Date of hearing: 27th April, 1986.

This R.S.A. assails the judgment and decree, dated 26-5-1971 of the learned Additional District Judge, Gujrat, Camp Sialkot, by which the appellant's first appeal was dismissed.

2. Respondent Allah Bibi brought this suit for joint possession o1 the land in dispute on the ground that she had inherited it as daughter of the deceased Hassan Din while the appellant had fictitiously shown it in the Revenue Record to have been sold by her in his favour. She maintained that she never made any such sale, nor had received any consideration for it, nor had appeared before the Revenue Officer and that the entire proceedings in relation thereto were fake, forged, collusive, without consideration and not binding upon her.

3. The suit was resisted pleading limitation, estoppel and absence of cause of action. The sale was affirmed to have been made in favour of the appellant /defendant vide mutation, dated 27-11-1962 for a sum of Rs.6,000 which the petitioner alleged to have had paid to her. I1 was added that the suit was mala fide brought due to the appellant's refusal to give the hand of his daughter to the respondent-plaintiff's son and that even otherwise, she was precluded by her conduct in going back upon the transaction.

4. The following issues were framed by the trial Court:-

(1) Whether the suit is within time

(2) Is the plaintiff estopped from bringing this suit

(3) Has the plaintiff cause of action to bring this suit

(4) Is the plaintiff owner of the land in dispute and Mutation No. 2385 being collusive is ineffective against the rights

(5) Is the defendant owner through a valid purchase of the land in dispute

(6) Relief."

5. All the issues were found against the appellant and consequently, the respondent's suit was decreed. The learned Additional District Judge concurred with those findings and dismissed the appeal with costs.

6. Mr. Abdur Rashid, Advocate, for the appellant canvassed at length that the suit was barred by limitation inasmuch as it was essential for getting the mutation set aside and that the limitation, therefore, was only one year under Articles 14 of the Limitation Act. He cited Mst. Fattan Bibi etc. v. Fateh Muhammad etc. P L D 1974 Lah. 458 to canvass that true character of a suit could not have been concealed by putting a different label on it so as to avail larger limitation. The Courts below spurned this objection holding that that suit being for joint possession could have been brought within 12 years under Article 142 of the Limitation Act counting from the date of mutation taking the same at the worst to be the discontinuance of the respondents' possession. A perusal of the plaint would reveal that the respondent was asking for joint possession as an heir of her father on whose demise, she claimed to have inherited a share under Personal Law. She did not admit any sale in favour of the appellant. In fact she decried it in explicit terms pointing out that it was a sham transaction maneouvred by the appellant acting in collusion with Revenue Officials without paying her any consideration amount. It appears somewhat wrong to say that the suit was essentially one for seeking cancellation of an official act. On the other hand, it was based upon her title accruing on the demise of her father. The averment made in para. 1 of the plaint to that effect cannot be lost sight of. Any reference to the mutation may have been something incidental as she did not affirm it and was only trying to extricate herself from it on the ground of being neither a party nor privy to it. In law, she could outright assert her title and claim the relief of joint possession on the basis thereof. Limitation in such an event will be under Article 142 as the suit was based upon title and technical discontinuance of her possession. It could not be limited to one year merely because the appellant /defendant was setting up a sort of sale in defence. Not infrequently the limitation is to be applied on the basis of averments made in the plaint.

7. The further contention was that the respondent could not seek joint possession as it lay with the appellant. The proposition cannot be accepted. If an owner could not ask for possession, who else will No law or authority was cited in support of the contention that a co-sharer cannot ask for symbolic possession. The mere fact that the land is under tenancy cannot preclude an owner from getting symbolic possession as Hissadar. In law, possession with the appellant will be deemed to be the possession of all the co-sharers and if any of them feels himself to have been denied the same, it shall be open to him to regain it. There was no force in the contention.

8. Lastly, learned counsel urged that the evidence was not properly appreciated in regard to the payment of Rs.6,000 as consideration amount for sale. I have gone through the whole of it with his assistance. No instance was pointed out as could support the plea of misreading or preverseness on the part of the lower Courts. There were material discrepancies in the statements of D.Ws.6, 7, 8 and 13 relating to' passing off the consideration amount. Those were considered to be material in discrediting their version. It is not possible to upset the view adopted by the learned Additional District Judge merely because he could entertain an opposite view about those discrepancies. In R.S.A. reappraisement of evidence especially relating to a fact is not permitted. The Courts below concurrently found that there was no sale made by the respondent-lady. It being a question of fact, could not be reopened by this Court.

9. As a result, the R.S.A. is dismissed the costs throughout.

A . A . Appeal dismissed.

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