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Civil Revision No. 249 of 1979, decided on 18th September, 1985.

‑‑ Arts. 140 & 141‑Trial Court granting decree without adverting to limitation‑Plea of limitation being legal right, held, could be raised in every civil matter even if such plea was not taken in plaint.

‑‑ Co‑sharers right in joint property, without having been partitioned ‑‑Plea of right to property after statutory period of twelve years, held, would be available to such co‑sharer if he had been in possession of property or same was not capable of possession having been lying idle and barren all along.

(c) North‑West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935)

‑‑ S. 3(2)‑Predecessor of parties dying when customary law was in force‑Succession of deceased, held, would be governed by N.‑W. F. P. Muslim Personal Law (Shariat) Application Act, 1935. Act same being retrospective in effect.

P L D 1961 Pesh. 9 ref.

‑‑ Arts. 140 & 141 ‑‑Common predecessor of parties dying decades back‑Plaintiff never remained in possession of property Suit brought after statutory period of 12 years, held, was barred by limitation in circumstances.

‑‑‑Art. 114‑Estoppel‑Plaintiff not objecting to possession of defendant within statutory period ‑Acquiscence in ownership of defendant would be presumed on part of plaintiff‑Such plaintiff who was estopped to claim share in property in circumstances. [Estoppel].

Z. Mahfooz Khan for Petitioners.

Abdur Rahman Khan for Respondents.

Date of hearing : 27th March, 1984.

Ajab Din petitioner hearin brought suit for possession of the suit house by partition. He alleged that the suit house was owned by Musnahidin who was the predecessor of the parties. After the death of Mushaaidin in 1922, the petitioner sold 4 marlas and the remaining 7 marlas in the suit house is still due to him as his share. The respondent contested the suit. The learned trial Judge framed issues and recorded evidence of the parties. On examination of the evidence, he found that the suit house belonged to the common ancestor of the parties and as it had not been partitioned, it is liable to be parti tioned between the parties. He further found that the petitioner's share in the suit house comes to 11 marlas but he sold 4 marlas out of his share, therefore, he is entitled to 7 marlas in the suit house. He did not agree that Shari law is applicable in this case. He, accordingly granted a preliminary decree in favour of the petitioner, vide his judg ment, dated 16‑1‑1978. The respondent was aggrieved by this judg ment, therefore, he filed appeal 'in the District Court and a learned Additional District Judge who heard the appeal accepted the same on ground that the suit of the petitioner is barred by limitation, vide his judgment dated 28‑5‑1979. Hence this revision application.

I have heard the learned counsel for the parties and perused the record. It is clear that the learned trial Judge had granted decree in favour of the petitioner without adverting to the legal position, a regards limitation, in a case of this nature. Mushahidin, the predecessor of the parties died in 1922 and according to the record, the petitioner never remained in possession of any part of the suit house. It is conceded that in every civil matter the question of limitation can be raised. The learned counsel for the petitioner has, however, contended that as the suit house belonged to the predecessor of the parties and as after his death it was not partitioned, the parties become cot sharers in the same and unless it is partitioned, every co‑sharer has the right to claim his share, This contention would have been available to the learned counsel for the petitioner if his client had teen in pos session of the suit house or the suit property was such not capable of possession and was lying idle and barren all along. This is not the position in the present case. The parties are governed by the Shariat, Act and even though Musbahidin, the common predecessor of the, parties, died before the enforcement of the said Act, yet the petitioner cannot claim application of customary law in this case, as N.‑W. F. P. Muslim Personal Law (Shariat) Application Act (VI of 1935) is retros pective in effect. A somewhat similar case also came up before this Court in a case reported in P L D 1961 Pesh. 9 and it was held as under :‑

"If the Law of Limitation prohibited the entertainment of claims after 12 years of the accrual of the right upon death the claims will cease to be entertainable. The Customary Law heirs who suc ceeded as heirs and remained in enjoyment of the estate for over 12 years will be held to have matured their irrevocable title to the deceased's estate by prescription."

The learned counsel for the respondent also pointed out that all the legal heirs of Mushahidin have dot been impleaded as parties in this case and his some legal heirs also sold their shares to strangers. His submission, therefore, is that on this score also, the suit of the petitioner is legally defective. I do not feel called upon to attend to this submis sion of the learned counsel for the respondent, as the suit of the peti tioner is barred by limitation. It is Ant disputed that the common pre decessor of the parties died in 1922 and as thereafter, according to the evidence on record, the petitioner never remained in possession of any part of the suit house, the present suit having been brought by him long after the period of 12 years, it is patently hit .by limitation. Even other wise, the petitioner had no case on merit. He was unable to show by any evidence worth‑the‑name that the respondent was in possession of the suit house with his (petitioner's) permission. There is therefore, no escape from this conclusion that the petitioner had acquiesced in the ownership of the respondent qua the suit house and as the respondent is in possession of the suit for decades and his possession was never questioned, the petitioner cannot now be allowed to claim any share in the suit house.

As a result, this revision application is dismissed with no order as to costs.

A. A. Revision dismissed.

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