2006 PLP 814 (CLC)

NADEEM AZHAR SIDDIQI, J.

This is an application under Order I, rule 10, C.P.C. by which the applicants/intervenors have prayed that they may be joined as defendants Nos.10 to 31 in the above matter. The intervenors claim that they are the legal heirs of late Umar son of Mindoo Brohi, the original owner of the land from whom the plaintiff claims to have purchased the land on 20-6-1966, whereas said Umer expired on 1-2-1965. They further claim that the sale-deed allegedly executed by a dead person is invalid and creates no right and title in favour of the plaintiff. The plaintiff has filed his counter-affidavit. In the counter-affidavit he states about some other proceedings filed by the intervenors in respect of the same land without joining him as a party. He denied that Umer expired on 1-2-1965 and that on 20-4-1966 when the sale-deed was executed timer was alive. The intervenors filed rejoinder and on the directions of the Court vide order, dated 21-11-2005 filed the photo copy of certificate from Nazim Union Council Songal confirming that. Umer expired on 1-2-1965. He also filed Form VII which shows that names of the applicants were entered in the record of rights on the basis of order of Senior Civil Judge and one photograph showing the grave of Umer. I have heard the learned counsel for the parties and perused the record. The learned counsel for the intervenors states that since the intervenors are the legal heirs of Umer who was the owner of the land in question and after death of Umer the property devolved into the legal heirs they are necessary and proper parties to the proceedings. He further states that the intervenors are in possession of the property. He further states that in the counter-affidavit plaintiff has not denied that the intervenors are not legal heirs of Umer. On the other hand, plaintiff has stated that the 'application has' been filed malafidely to support the other defendants. He submits that a collusive suit was filed by the intervenors and he filed an application under section 12(2), C.P.C. He also claims that he is in possession of the, property. He further states that he purchased the land from Umer and all formalities have been completed and his title has been challenged, after thirty years. He referred to section 135(c) of the Sindh Land Revenue Code, 1879. In support of his contention. The plaintiff has also relied upon the following judgments: (1) Government of Sindh v. Khalil Ahmad 1994 SCMR 762; (2) Ahmad Din v. Muhammad Bashir and 6 others NLR 1992 Civil 250; (3) Mst. Amina Begum v. Chairman K.D.A. 1993, CLC 1307. Learned counsel for the applicants/intervenors in support of his contention that the applicants/intervenors are the legal heirs of deceased Umer son of Mindoo has not produced any document. Even the death certificate of Umer was not produced and only a certificate (Tasdiqnama) from Nazim Union Council was produced which was issued on 25-1-2003 after 28 years, of the death of Umer. The photograph of the grave of Umer is not the conclusive proof of death of Umer as well as the applicants are his legal heirs. On the other hand the plaintiff submits that the parties can only be impleaded if plaint shows some cause of action against the intervenors. He further submits that the cause of action for filing the suit against the defendants was the fraudulent transfer of land from his name to private defendants by the official defendants. He .further submits that the question of title of the intervenors will be decided after disposal of his application under section 12(2), C.P.C. pending before Se' for Civil Judge, Malir-Karachi. In support of his contention the plaintiff has relied upon the judgment reported as Ahmad Din v. Muhammad Bashir and others NLR 1992 Civil 250 wherein it has been held that: ".... The mere fact that he may, by some chance, become interested in claiming the property adversely to the plaintiff was not a ground for his being so impleaded because that would necessitate importation of such further facts as have not to be found set out in the suit, further, even by the virtue of section 43 of the Specific Relief Act the declaration to be made in this suit will remain confined to the parties only and no one else can be affected' thereby." The other contention of the plaintiff was that the death of Umer was not reported to the authorities within the period prescribed in section 135(c) of the Sindh-Local Revenue Code, 1879, and at this belated stage the legal heirs are excluded from claiming inheritance. The law referred by the learned counsel was repealed by West Pakistan Land Revenue Act, 1967. Even if the death was not reported within the time prescribed by section 135(c) the legal heirs will not lose' their right of inheritance and are entitled to the inheritance if proved without doubt 'that they are legal heirs. Furthermore, the succession open the moment one expired leaving some assets and the legal heirs cannot be debarred from the inheritance on the basis of technicalities. The section also does not provide any consequences for not reporting the death within three months. The provision is not mandatory and only an enabling provision by which the Revenue Authorities were authorized to record acquisition of right. The other judgment cited by the learned counsel is only relevant for the purpose that declaration sought was only binding to the parties and no one else can be affected thereby. Only those persons are necessary or proper parties to the proceedings whose interest were challenged in the suit and without their presence the suit cannot be decided on merits. In the instant suit the plaintiff has not challenged the title of the intervenors who maybe legal heirs of deceased Umer. The intervenors can only be joined as defendants if the plaintiff challenged their right and title in the land. The suit of the plaintiff will either be decreed against the defendants or be dismissed and. the intervenors will get nothing from becoming party to the proceedings. If the intervenor are claiming some right in the property in question they can institute separate proceedings, which they were instituted without impleading the plaintiff. The intervenors are claiming an independent right in the property having no nexus with the cause of action and controversy involved in the suit and they are not necessary and proper parties to the proceedings. No purpose will be served by joining the intervenors as defendants in the present case. I, therefore, dismissed the application (C.M.A. No.6923 of 2003) under Order I, rule 10, C.P.C. H.B.T./M-46/K Application dismissed.