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Regular Second Appeal No.872 of 1978, decided on 13th June, 1981 .

---S.100--Adverse possession--Objection with regard to area neither raised in first appeal nor raised in grounds of second appeal--Effect- Such plea subsequently raised by appellants, being obviously after thought, there was, held, nothing wrong with area given to respondent in decree concurrently-passed by Courts below in his favour.

---Art.114--Estoppel--Proof--Nothing in mutation of disputed land available to support the plea of appellants that as respondent himself was consenting party to mutation in dispute, therefore, he was estopped from bringing suit against such mutation--Reasoning of appellate Court below in holding that appellants had failed to establish estoppel. held, was quite cogent.

---Art.144--Adverse possession, plea of--Limitation Appellants claiming to be in adverse possession of land in dispute asserted that suit filed by respondent was time-barred as mutation in dispute was attested about 19 years prior to institution of suit--After attestation of mutation one of appellants sold his share and consolidation of holding had also taken place, but in spite of all those transactions respondent did not file suit earlier--Held, appellants having claimed adverse possession of disputed land, Art.144 of Limitation Act.1908 prescribing 12 years period for filing suit, held, would be applicable-Transactions of sale and consolidation of holdings having taken place within 12 years preceding institution of suit, even assuming that respondent was aware of all such transactions, suit filed by respondent was not time-barred.

---Art.144--Civil Procedure Code (V of 1908), S.100--Adverse possession-=Proof--Plea of adverse possession neither taken by appellant's in their written statement nor raised on any other occasion prior to 'hearing of second appeal--Such plea being an afterthought could not be accepted in absence of any evidence in proof thereof.

Ch. Aziz Ahmad for Appellants.

Sh. Abdul Majid and Ch. Muhammad Zakriya Khalil for Respondents.

Date of hearing: 13th June, 1987.

Facts giving rise to this regular second appeal are that one Sultan had four sons, namely, Thiraj, Raja, Lai and Machhia. On the death of Sultan, his land was inherited by his four sons. Thereafter, Lai and Machhia died during the life time of Thiraj. Muhammad was son of Lai and Waryam was son of Machhia. On the death of Thiraj, mutation of inheritance was attested awarding his land to his surviving brother, Raja, and the two nephews, namely, Muhammad and Waryam, in equal shares. Raja filed a suit claiming whole of the land left by Thiraj. His plea was that, under Muslim Law, in his presence, his nephews, namely, Muhammad and Waryam, could not take any share in the land left by Thiraj. Land of Thiraj inherited by Waryam was transferred by him (Waryam) in favour of appellants Nos.2 to 5, namely, Mahmand and others, who are sons of his (Waryam's) sister. This was done by means of consent decree passed in a suit brought by appellants Nos.2 to 5. In his suit, therefore, Raja impleaded appellants Nos.2 to 5 and the said Muhammad as defendants. Raja died during the pendency of the suit 'whereupon- Bahadur and others were impleaded as his legal representatives. The suit, which was resisted by the defendants was decreed by the Administrative Civil Judge, Jhang. They, therefor, went in appeal before District Judge, Jhang but without success. Hence this second appeal.

2. It was contended by learned counsel for the appellants that the mutation of inheritance of Thiraj related to land measuring 18 Kanals and 9 Marlas, only but the two Courts below had decreed the suit for 51 Kanals and 19 Marlas In reply, it was submitted by 'Legal representatives of Raja, hereinafter referred to as the respondents, that the area of 18 Kanals and 9 Marlas was not mentioned in the mutation According to him, mutation related to Thiraj's share i.e. 1/4th share in the land left by his father Sultan which is mentioned in the schedule appended to the plaint and since, through the above mutation; Raja had been given 1/3rd share in the land left by Thiraj, Raja had sued for remaining z/3rd of it which had been allocated to his nephews, Muhammad and Waryam. Total of the area of the land given in the said schedule is 311 Kanals and 11 Marlas. It was, therefore, argued by learned counsel for the respondents that by means of the mutation in dispute, Raja was deprived of land measuring 51 Kanals 19 Marlas and as such he, had filed suit relating to that much land, which had also been decreed.

3. Objection with regard to the area was not raised by the appellants before the first appellate Court nor in the grounds of second appeal filed before this Court. Their plea in this respect is, therefore, obviously, an afterthought. In the mutation of inheritance, copy Ex-P.3, the area is not given. The mutation is in regard to 1/4th share of Thiraj in the land jointly owned by him and his three brothers, namely, Raja, Lai and Machhia. As noted earlier, Raja, Thiraj, Lal and Machhia were sons of Sultan. In the schedule annexed to the plaint total area of the land jointly owned by Raja, Thiraj, Lai and Machhia was 311 Kanals and 11 Marlas. In the said land, 1/4^th share of Thiraj came to 77 Kanals and 18 Marlas (approximately). By award of 1/3rd share in the land of Thiraj, Raja got land measuring 25 Kanals and 19 Marlas (approximately) and the remaining 51 Kanals and 19 Marlas (Approximately) of land of Thiraj was given to his nephews. Raja was, therefore, well advised to file suit for 51 Kanals and 19 Marlas. As stated above, his plea in this regard was not objected to by the appellants at any earlier stage of the proceedings. A I, therefore, find nothing wrong with the area given in the decree passed by the learned lower Courts.

4. Next point canvassed by learned counsel for the appellants was that Raja was estopped from filing the suit inasmuch as he had himself agreed to the attestation of the mutation of inheritance of Thiraj, copy Ex.P.3, as aforesaid. There is nothing in the said mutation to support his plea. The appellants examined four witnesses namely, Shamir (DW 1), Bashir (DW 2), Atta Muhammad (DW 3) and Muhammad appellant (DW 4) to substantiate this plea. Presence of among of these witnesses is noted in the mutation. Their evidence was not relied upon by the learned District Judge for the following reasons:-

"Though the defendants produced oral evidence to show that the plaintiff was present at the time of mutation yet that evidence is not satisfactory. One Shamir Lambardar was present at the time of attestation of mutation. He was not produced by the defendants. On the other hand, they examined Shamir (DW 1), who was not a Lambardar and who was also not present at the time the mutation was sanctioned. Raja plaintiff never made any statement before the Revenue Officer. Therefore, the statement of Shamir DW was rightly rejected by the learned Civil Judge. Bashir (DW 2) also deposed that Raja plaintiff was present at the time of attestation of mutation. His statement cannot be safely relied upon since he is inimical to the plaintiff's legal representative, who had appeared as witnesses against him in a criminal case. Atta Muhammad (DW 3) is related to the defendants. His statement, therefore, also could not be safely relied upon. I am not prepared to believe in the statement of Muhammad defendant (DW 4) that there was an agreement between the parties according to which the mutation in question was sanctioned. If there was any such agreement the same would have been referred to by the Revenue Officer in the mutation proceedings. The defendants, therefore, failed to prove that the plaintiff was present at the time of attestation of mutation."

This reasoning of the learned District Judge is quite cogent. I, therefore, agree with him that the appellants had failed to establish that Raja was a consenting party to the mutation in dispute and, therefore, estopped from bringing the suit.

5. It was also vehemently argued by learned counsel for the appellants that the suit was time-barred. The mutation in dispute (copy Ex.P.3) was attested on 11th June, 1952 but the suit was brought by Raja on 27th July, 1971. It was pointed out by learned counsel for the appellants that after the attestation of mutation and before the institution of the suit Waryam had sold the land, inherited by him under the said mutation, in favour of appellants Nos.2 to 5 and consolidation of holdings had also taken place but despite all this Raja did not file the suit earlier. According to him, Article 123 of the First Schedule to the Limitation Act, 1908, would govern limitation for his suit and since it had not been filed within the period of 12 years prescribed by it, the suit was barred by time. It was also urged by learned counsel for the appellants that even if the nephews of Thiraj were not entitled to inherit the land left by him, they and their successors-in-interest had become owners thereof through adverse possession.

6. On the other hand, it was submitted by learned counsel for the respondents that their predecessor-in-interest, namely, Raja did not come to know of the award of the disputed land to his nephews till about two years before the institution of the suit as the land continued to be the joint property, the suit was not time-barred.

According to him, Raja was not aware of the transfer of his share by Waryam in favour of appellants Nos.2 to 5 by means of consent decree of the. Civil Court nor at the time of consolidation proceedings, he came to know that Waryam and Muhammad had also been given share in the land left by Thiraj. According to the learned counsel for the respondents, therefore, transfer of land in favour of the appellants Nos.2 to 5 and the consolidation proceedings did not create any difficulty for Raja so far as the question of limitation was concerned.

7. It is not disputed that the land in question continues to be the joint property. Presence of Raja at the time of attestation of the mutation of inheritance in dispute is not recorded in the mutation. There is nothing to show that he came to know of the consent decree by which Waryam transferred his share in favour of appellants Nos.2 to 5. It is not disputed that appellants Nos.2 to 5 are sons of the sister of Waryam. According to learned counsel for the respondents, it was a collusive decree which was obtained without the knowledge of Raja. As regards the consolidation proceedings, Ex. D.6 relates to the scheme of consolidation which does not bear the signatures or thumb impression of Raja. Similarly, there is nothing on the record to show that Khataunis Exs.D.8 and D.9 were delivered to him. Article 123 of the First Schedule to the Limitation Act relates to legacies, etc. Period of limitation prescribed by Article 144 of the said Schedule is 12 years. In this case, Article 144 would be applicable, because the appellants also claim to be in adverse possession of the land in question. The said consent decree as well as consolidation proceedings took place within 12 years preceding the institution of the suit. Therefore, even if it is assumed that on the passing of the consent decree and the taking out of the consolidation proceedings, Raja became aware of the award of land to Muhammad and Waryam out of the land left by Thiraj, it would not make his suit time-barred. In this view of the matter, I am unable to accept the plea of limitation raised by the appellants.

8. As regards the contention of learned counsel for the appellants that the appellants had acquired ownership of the land in question through adverse possession, it is an after-thought's. They did not plead adverse possession in their written statement or on any other occasion prior to the hearing of this second appeal by him. There is also no evidence regarding adverse possession. The appellants could not plead adverse possession without conceding that Raja was really the owner of the disputed land but they did not do so. It is, therefore, not possible to hold that they have become owners of the land in question through prescription.

9. There is no merit in this second appeal. It is, accordingly, dismissed with costs.

H.B.T./M-402/L Appeal dismissed.

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