1. This is defendants' second appeal and arises out of a suit brought by the plaintiffs for recovery of half share in the land measuring 14 Kanals and 11 Marias comprised of Khasra No. 17 in Tehsil Anantnag left by Mt. Aahmi who died in Section 1982 without any issue. The property in dispute belonged to one Mirza, the common anoestor of the parties. Mirza had five sons out of whom two, Rehman and Basal, died without leaving any heirs. We are no longer concerned with them. The remaining three, Rahim, Akli and Wahab succeeded to the property left by Mirza. Mt. Aahmi represented Akli's line and the property left by her is in dispute. The contest is between the representatives of the line of Rahim and Wahib in regard to the property left by Mt. Ashmi. Mt. Khurshi, Mt. Mukhti and Mohammad are theplaintiffs and they claim half of the share of the property left by Mt. Ashmi and they have brought the suit against Rajab and Wall defendants who represent Wahab's line.
2. The plaintiffs' case is that Mt. Ashmi died issueless and they being the agnates of her father are entitled to succeed to the property left by Mt. Ashmi to the extent of one half. The defendants resisted the suit on the ground that they have been in possession of the property after the death of Mt. Ashmi and the plaintiffs' suit is barred by time. It was further pleaded that the plaintiffs are not the agnates and, therefore, have no locus standi to bring the suit.
3. The trial Court dismissed the plaintiffs' suit on the ground of limitation. On appeal the learned District Judge by his order dated 14th Bhadoon, 2004, allowed the appeal of the plaintiffs, set aside the decree passed by the trial Court and remanded the case to it with the direction that the question of limitation be gone into again keeping in view the observations made in the order of remand and the case be decided afresh according to law. The trial Court again held the suit to be barred by time and the plaintiffs' suit was accordingly dismissed. The plaintiffs came up in appeal and the learned District Judge accepted the appeal of Mt. Khurshi and passed a decree for joint possession in her favour to the extent of one-half of the property left by Mt. Ashmi. The defendants have come up in farther appeal to this Court.
4. It has been argued on behalf of the appellants that the suit was clearly barred by time and the District Judge has erred in holding the suit to be within time. The counsel for the appellants has argued that Article 141, Limitation Act, was applicable and not Article 144 which has been applied by the District Judge. Article 141 provides a period of 12 years for bringing a suit by a Hindu or a Mohammadan who is entitled to possession of an immovable property on the death of a Hindu or Mohammadan female. This Article, in our opinion, would not be applicable in this case as it contemplates that the person against whom the suit is brought is a total stranger who got into possession of the property after the death of the female, and the person entitled to recover possession has to file the suit within 12 years after the death of the female. In the present case, the dispute is between the co-owners. After the death of Mt. Ashmi, some of the co-owners have got into possession and their possession is presumed to be the possession of other co-owners. In their case the general Articles would be applicable and not Article 141. Limitation Act, and the defendants who are in possession of the property have to show that they have acquired title by adverse possession. In support of this view, there is a Full Bench authority of the Allahabad High Court, reported as Rustam Khan v. Mt. Janki, A. I. R. (15) 1928 ALL. 467. in which it was held that when a Mohammadan owner dies leaving several heirs they all become co-owners and tenants-in-common. A joint owner is legally entitled to retain possession of joint property. Even if he is in exclusive possession of such joint property, his possession is ordinarily to be referred to him legal title. The presumption therefore is that his possession is lawful and therefore on behalf of all the co-owners. The other co-owners are accordingly in constructive possession of the property. As distinct shares have devolved on them, they all are presumed to have taken their legal shares although possession still remains joint. If therefore the co-owner in actual possession dispossesses any one of the other co-owners, the suit that is brought for recovery of possession is not a suit for a distributive share of the property of an intestate, but is a suit to recover possession of the defined, though undivided share of the co-owner in the possession of the other co owners. Such a suit falls under the general Article 144 of the Limitation Act, limitation running from the date when the defendants' possession became adverse. It appears from evidence thab Mst. Ashmi died in Section 1982. The defendants got into possession of the property in dispute. The learned counsel for the appellants has argued that the defendants' possession over the property was for more than 12 years and the mutation was entered in their name as exclusive owners of the property. It is contended that after the mutation there was a clear ouster of the other co-owners and, therefore, the possession of the defendants was adverse. This contention, in our opinion, is without force. It may be stated here that Mst. Khurshi was admittedly a minor at the time the mutation was effected in favour of the defendants. The mutation in favour of the defendants would not constitute an ouster of the other co-owner, Mst. Khurshi who was minor at that time. Mere mutation on the part of a co-owner in his favour would not constitute sufficient ouster of the other co owners who are presumed to be in constructive possession. There should be some overt act to the knowledge of the other co owners to show that the co-owner in possession is holding the property exclusively for himself and denying the title of other co owners. In this case, we do not find that the defendants have been holding the property adversely to the other co owners and merely because they got the mutation effected in their name would not make their possession adverse to the Other co-owners. In this view, we are fortified by an authority of the Allahabad High Court reported as Deokinandan v. Zamir Hussain Khan, A I. R. (9) 1922 ALL. 399, in which it has been held that the possession of one co owner must be deemed to be the possession of all the co-owners, unless there was some act of ouster by which one of the co owners was deprived of possession by another. The mere fact of getting the name entered in the revenue papers would not be sufficient to amount to an ouster. The lower appellate Court, therefore, has rightly held that the plaintiffs' suit was not barred by time.
5. It is further contended that Mst. Khurshi was not an agnate of Qadir and had no loous standi to file the present suit. The learned counsel has relied upon the definition of agnate as given by Ellis in his book 'The law of preemption in the Punjab (a) 6th Edition' :
'A person is an agnate of another when he is related to him by descent from a common ancestor entirely and exclusively in the male line.
No female can be an agnate, or transmit agnatic relationship.'
The learned author has on page 48 stated that in applying these rulings care should be taken to note that they are under the Punjab Laws Act. They are merely illustrative of the present statutory rule. They illustrate that no woman or one descended through a woman can be an agnate, but the rulings should not be extended beyond that. It is, therefore, clear from the abovs commentary that agnate under the Pre-emption Act of Punjab has been specifically defined and the women are excluded from the category of agnates.
6. In Mohammadan Law of Tyabji 3rd Edition, agnate is defined in Section 605 on page 834, as meaning a person whose relation to the deceased can be traced without the intervention of female links. The dictionary meaning of the word 'agnate' is given as the descendant from the same male ancestor; a relative on the father's side. Sant Ram Dogra to question 69 defines agnate as meaning grandfather's descendants in the male line. From the definition given by Tyabji in his Mohammadan Law which is supported by Sant Ram Dogra in his Customary Law it is clear that agnate means a person whose relation to the deceased can be traced without the intervention of female links, Mst. Khurshi is an agnate of the father of Mst. Ashmi inasmuch as the is related to Qadir through male line without the intervention of any female link. The Jearned counsel for the appellants has been confused by reading a definition of agnate in the Pre-emption Law of the Punjab by Ellis, but he has not noticed the fact that in the Punjab Pre-emption Act women are specifically excluded from the category of agnates whereas under the definition of agnate as given in Tyabji's Mohammandan Law and in Sant Ram Dogra's Customary Law, Mst. Khurshi comes within the category of agnatea of the father of Mst. Ashmi. The other two plaintiffs Mst. Mukhti and Mohammad are not agnates because a female intervenes. The learned District Judge has, therefore, rightly held that Mst. Khurshi is an agnate and is entitled to one-half of the share of the property left by Mst. Ashmi.
7. This second appeal is, therefore, without force and is dismissed with costs.