1987 PLP 2360 (CLC)

Ashtar Ausaf Ali for Appellant. Respondent No. 1 in person. Khadim Mohyuddin for Respondents Nos. 2 to

4. Respondent No. 5 : Ex parte Date of hearing: 17th May, 1987. QURBAN SADIQ IKRAM, J.‑‑Briefly stated the facts of this case are that Moamla son of Wazira respondent No.5 allegedly sold land in dispute in favour of Hameed Khaldi, Aurangzeb, Mehboob Khan and Mst. Hairdda Begum for Rs.3,50,

000. A sale‑deed was executed on 19‑5‑1980 and presented for registration before Sub‑Registrar Sialkot who on 21‑5‑1980 refused to register the deed on the ground that the land belonged to the Forest Department and the title of Moamla vendor was not clear. An appeal was preferred against this refusal which was dismissed by Deputy Commissioner Sialkot exercising powers of Registrar vide the order dated 8‑6‑1980. Hameed Khaldi etc., vendees in order to challenge the above‑said orders on 25‑6‑1980 filed a suit under section 77, Registration Act against Deputy Commissioner Sialkot with powers of Registrar and Mr. Zamurd Khan E.A.C. with powers of Sub‑Registrar Sialkot for a direction that the sale‑deed be registered. The Forest Department filed an application to be impleaded as party in the suit. This was allowed and on 27‑10‑1980 amended plaint was filed impleading Forest Department Sialkot as defendant No.3, where after written statement on behalf of the defendants was filed on 31‑1‑1981. In the preliminary objections it was specifically pleaded that Province of Punjab, a necessary party, had not been impleaded as party in the suit which, therefore, could not proceed. The learned trial Judge initially framed six issues. Subsequently three more issues were framed out of which issue No.5‑B pertained to non‑joinder of necessary parties in the suit. The learned Civil Judge 1st Class Sialkot decided issue No.5‑B against the defendant because no evidence was led in its support. The suit of the plaintiffs was decreed vide the judgment dated 19‑9‑1981. After getting the required copies, the defendants filed an appeal before District Judge Sialkot on 16‑10‑1981 to challenge the decree in favour of the plaintiffs. This appeal was returned to defendants on 18‑10‑1981 being not competent in that Court under order dated 17‑10‑1981. The appeal was then filed in this Court on 24‑12‑1981.

2. We have carefuly gone through the record of this case and have heard the learned counsel appearing for the parties. According to the averments in the written statement land measuring 337 Acres 4 Kanals was transferred to Forest Department of the Government of the Punjab by the Custodian Evacuee Property, and as such the ownership of Moamla plaintiff No.5 was denied. It is, therefore, apparent' from pleadings of the parties that the ownership of the Ian wlich was subject‑matter of the sale‑deed was not only disputed also claimed by the Government. A specific plea had been taken that the suit was bad for non‑joinder of Province of the Punjab, a necessary party in the suit. No evidence was required for determination of issue No.5‑B. The averments in the pleadings of the parties prima facie made out a case for impleading Province of the Punjab as party in the suit. It was‑ contended on behalf of the respondents that three defendants were functionaries of the Province of the Punjab and as such the interests of the Province were adequately protected by them. It was, therefore, sought to be argued that Province of the Punjab was not necessary party in the proceedings. This argument is baseless. The officers functionaries of Government are not necessary party in a suit. They may be proper parties. A suit against a Province can be filed only by the name of the Province. Keeping in view the pleadings of the parties we are of the view that Province of the Punjab was necessary party. We, therefore, set aside the finding of the lower Court under issue No.5‑B. As the Province of the Punjab, a necessary party, was not impleaded in the suit, the findings on other issues are also set aside.

3. In view of the above discussion we accept this appeal and remand the case to the learned trial Court for fresh trial and decision according to law. The parties are left to bear their own costs of this appeal and are directed to appear before the learned trial Court on 21‑6‑1987. The plaintiffs, on that date will file amended plaint impleading Province of the Punjab as party. The learned counsel appearing for the Province of the Punjab undertook to put in appearance on 21‑6‑1987 before the lower Court which is directed to dispose of the suit before the 31st March, 1988, and report compliance to this Court. A. A. /D‑10/L Case remanded.