2003 PLP 2741 (YLR)

KHAWAJA MUHAMMAD SAEED, J.

This appeal with the leave of the Court is directed against the judgment of the High Court passed on 30-3-2002.

2. The necessary facts giving rise to the present appeal, briefly stated are that the Administrator Auqaf, through a notification issued on April 5, 1971 took over the administration and control of land measuring 97 Kanals, 7 Marlas comprising Survey Nos.94, 94 min, 473, 50, 51, 457, 303, 377, 306, 307, 93, 93 min, 305, 335, 376, 503, 503 min, 503 min. 22 and 449, situate in Village Roli, Tehsil and District Kotli. The respondent, herein, alongwith some other deceased persons whose legal representatives have not been impleaded in the line of respondents before us, filed an application under section 7 of the Azad Jammu and Kashmir Waqf Property Act, 1960 (hereinafter shall be referred as the Act of 1960) before the District Judge Kotli claiming themselves the owners in possession of the land in dispute and seeking annulment of notification issued by the Administrator Auqaf on April 15, 1971. The District Judge, Kotli, vide his judgment dated 31-7-1990 dismissed their application. As such respondents filed an appeal before the High Court on 8-9-1990.' During the pendency of the appeal before the High Court, Ghulam Akbar, Muhammad Latif and Hassan Akhtar, appellants, died. Their legal descendants moved applications for impleading them in the line of appellants. After the judgment, it has been pointed out that out of respondents, respondents Nos.4 to 6, 8, 9, 18, 25, 32, 33, 38, 41, 44, 60 and 62 have died whose legal representatives have not been brought on record by the present appellant.

3. At the very outset of the arguments, Ch. Muhammad Azam Khan, the learned counsel for the respondents, submitted that the appeal was not properly constituted, as such, is liable to be dismissed on the sole ground of non-impleading the legal descendants of decree-holders deceased -respondents. While elaborating his point of view, the learned counsel submitted that the decree was passed in favour of all the respondents by the High Court and notification issued by the Administrator Auqaf on April 5, 1971 was set aside by holding that this land was not a Waqf Property. The decree being indivisible, the appeal is liable to be dismissed. The learned counsel has relied upon a case reported as (1993 SCR 245). In this case the pro forma respondent in whose favour decree of adverse possession was allowed by the Court below, was not impleaded in the line of respondents. The appeal was held to have abated in toto as the decree being indivisible passed commonly in favour of all the brothers including pro forma respondent who was not impleaded in the line of respondents.

4. While controverting the arguments, Ch. Reaz Alam, the learned counsel for the appellant, submitted that he filed the appeal in the light of the judgment of the High Court in which even deceased appellants were shown alive. Subsequently some of the respondents died during the pendency of the appeal before this Court but this fact was not supplied to him by his client, as such, on account of this reason applications for bringing on record their legal representatives could not be moved by him. He further contended that the appeal to the extent of those persons whose legal representatives have not been brought on record has abated as their share is ascertainable but to the extent of alive respondents, the appeal be decided on merits.

5. We have considered the objection in the light of the relevant record and have noticed that the administration and control of land measuring 97 Kanals, 7 Marlas comprising various survey numbers belonging to the respondents was taken over by the Administrator Auqaf through a notification issued by him on April 5, 1971. All the respondents moved an application jointly under section 7 of the Act of 1960 before the District Judge, Mirpur, which on the creation of a separate District Kotli was transferred to the District Judge, Kotli, where it was finally decided by the learned District Judge, Kotli, vide his judgment dated 31-7-1990. All the respondents, including those whose legal representatives have not been brought on record, availed jointly the right of appeal before the High Court which was allowed in their favour vide judgment under challenge before this Court dated 30-3-2002. All the respondents had claimed same relief in their favour against the appellant and in fact a declaration has been given by the High Court in the body of the judgment that the property in dispute was not dedicated by the predecessors of the respondents for any purpose recognized by Musliman law as religious, pious or charitable. On the basis of this declaration, it was held that the Administrator Auqaf was not justified in law to issue the notification dated April 5,1971 to assume the control and management of the property in question. In our view on account of these reasons, the decision given in favour of respondents cannot be bifurcated. Therefore, the appeal as a whole, on account of non-impleading the legal representatives of deceased-respondents, has become incompetent and is liable to be dismissed on this ground alone without entering into the merits of the case.

6. We cannot agree with the learned counsel for the appellant that under misconception of facts that all the respondents were shown alive in the body of the judgment by the High Court, he impleaded dead persons as respondents in the appeal before this Court. His other submission that he was not furnished information by his client about the death of any respondent, therefore, he could not file any application for impleading the legal descendants of such deceased- respondents in the line of respondents is also not tenable. These explanations, in our view, are nor sufficient to make this appeal competent. It was the responsibility of the appellant to furnish correct addresses of those against whom he wanted any relief from this Court. If on account of his wilful negligence he filed incompetent appeal, the same cannot be entertained particularly when the limitation has run against the appellant. Any remedy from a Court of law under any statutory law, can be obtained by observing strictly the legal requirements laid down under such statute or rules applicable to the Court. We cannot ignore this fact that when the death of some respondents was brought into the notice of the appellant, even then no step was taken for bringing on record their legal representatives. This is, therefore, a case of clear negligence on the part of appellant which cannot be excused. In view of the above, the appeal being incompetent, is dismissed with costs. M.B.A./368/SC(AJ&K) Appeal dismissed.