P L D 2006 Lahore 600 (PLP)

SYED ZAHID HUSSAIN, J.

Judgment of the learned District Judge, Faisalabad dated 24-11-1999 whereby the revision petition filed by respondents Nos. 2 and 4 was accepted has been assailed through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The background in which this litigation commenced and the matter has arisen before this Court briefly stated is that Sardar Muhammad deceased had three wives one Raheem Bibi, second Umran Bibi and third Fatima Bibi. On his death dispute as to his succession arose. On 16-8-1980 mutation of inheritance No.378 was sanctioned by the AC-II on the basis of inquiry and finding that he had two sons from his first wife Raheem Bibi namely Barket Ali and Ibrahim and one daughter namely Sughran Bibi, from his second wife Umran Bibi and had no issue from the third wife namely Fatima Bibi. It was noted by , him that another person namely Barkat Ali who claims to be the son of deceased was not indeed his son as he was son of Umran Bibi from her previous deceased husband. Appeal against this order was dismissed. However, the Additional Commissioner Sargodha Division remanded the matter to the Tehsildar/Assistant Commissioner-I, for further and thorough inquiry vide his order dated 9-7-1981. It was then again taken up by the Revenue Officer who after due enquiry restored the original mutation on 17-11-1981. The matter was then left at that stage, so far as the Revenue side is concerned. A suit for declaration was then filed by Barkat Ali respondent No.5, in which he impleaded the respondents namely Ibrahim, Barket Ali and Mst. Sughran Bibi, as defendants. The said suit was dismissed as withdrawn on 7-11-1982 in view of and as a result of offer and acceptance before the Court that the parties will be bound by the statement of Muhammad Nawaz. On 7-11-1982 the said Muhammad Nawaz made statement before the Court that respondent No.5 was not son of Sardar Muhammad deceased. The matter ended at that so far as the challenge by respondent No.5, to the mutation and his claim was concerned. The present petitioners claim to have been alienated the land in dispute by Ibrahim and Barkeat Ali i.e. respondents Nos. 3 and 4 vide Mutation of gift No.416 dated 19-4-1983 sanctioned on 19-5-1983. The litigation however, did not end at that as Mst. Sughran Bibi respondent No.2, then instituted a declaratory suit impleading respondent No.3 (Ibrahim), respondent No.4, (Barkat Ali) and respondent No.5, (also Barkat Ali). Her assertion was that she was the sole heir of Sardar Muhammad deceased and all mutations had illegally been sanctioned in favour of the others. This suit was instituted on 31-7-1983. The said suit was decreed by the trial Judge vide judgment dated 10-9-1985. Ibrahim alone then filed an appeal against the above judgment and decree in which the petitioners made an application to be impleaded as party; the appeal however, was withdrawn by Muhammad Ibrahim. While dismissing the appeal it was however observed by the appellate Court that "if the petitioners feel aggrieved by any manner they are directed to pursue their legal remedy independently". Application under section 12(2) of the Code of Civil Procedure, 1908 was then filed by them, which was dismissed by the learned appellate Court on 28-10-1991 as not maintainable for the reasons that it did not come within the purview of section 12(2), C.P.C. The petitioners then filed application under section 12(2), C.P.C. in the suit, (which had been decreed on 10-9-1985). In the said application issues were framed and the same was eventually accepted by the learned trial Court on 20-2-1999. This judgment became subject matter of revision petition before the lower appellate Court, which as mentioned above was accepted by the learned District Judge, Faisalabad on 24-11-1999. Giving this background of litigation, the learned counsel contends that the view taken by the learned District Judge, Faisalabad is not consistent with law inasmuch as the petitioners who had acquired interest in the property at a time' when there was no litigation pending and even there was no restraint order they could maintain such an application as their right and interest in the property was being jeopardized. Places reliance upon Ch. Jalal Din v. Mst. Asghari Begum and others 1984 SCMR

586. Whereas the represented respondents do not oppose this petition, the rest of he respondents are not represented and the petition has thus been heard ex parte. It may be mentioned, as is evident from the above statement of facts, that the petitioners had acquired right and interest in the land vide Mutation of gift No.416 sanctioned on 9-5-1983. The suit was instituted by Mst. Sughran Bibi on 31-7-1983 in which they had not been impleaded as party. After the same was decreed in her favour the appeal preferred thereagainst by Muhammad Ibrahim was withdrawn despite the fact that the petitioners had made a move to be impleaded as party in the said appeal. After the dismissal of their application by the then appellate Court they approached the civil Court through application under section 12(2), C.P.C. in which they had succeeded. The learned revisional Court has however, reversed the judgment of the trial Court on untenable premises and grounds overlooking the findings of the trial Court qua issue No.6 that decree dated 10-9-1985 was not a valid decree. The suit thus warranted to be tried after affording opportunity of hearing to the petitioners in view of their asserted right. The view taken by the learned revisional court that "even on the basis of Mutation No.416 dated 19-5-1983 it is not necessary to implead respondents Nos. 1 to 4 as a party to that suit" is neither consistent with law nor is supportable particularly when they were not impleaded in the suit as party. Reference in this context may be made to Ch. Jalal Din v. Mst. Asghari Begum and others 1984 SCMR 586, Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662 and Khawaja Muhammad Yousaf v. Federal Government through Ministry of Kashmir Affairs, etc. 1999 SCMR 1516 that if a person is adversely affected by an order or judgment of a Court or Tribunal rendered in a proceeding to which he is not a party he can file an application under section 12(2), C.P.C. The application of the petitioners was competent in law. Thus by declaring the judgment impugned as unsustainable in law and of no legal effect, the judgment of the trial Court is restored. Result whereof would be that the suit titled "Sughran Bibi v. Ibrahim etc." will be tried by the learned trial Court after impleading the petitioners as party therein in accordance with law. This petition is accepted accordingly with no order as to costs. M.B.A./A-99/L??????????????????????????????????????????????????????????????????????????????????? Petition accepted.