P L D 1983 Peshawar 202 (PLP)

ABDUL KHALIQ KHAN, J.--‑This is a Letters Patent Appeal from an appellate judgment of a learned Single Judge of this Court, dated 1st of October, 1980. The relevant facts are :‑ That Abdul Akbar Khan and two others residents of Tangi were owners in `Shamilat' of village Hisara. In consequence of promulgation of Martial Law Regulation No. 64 of 1959, they surrendered their `excess' land which was resumed by the Government. The said land was subsequently put to auction. Mian Hayatullah became owner of an area of 132 Kanals 7 Marlas out of Khasra No. 1538 as a result of his successful bid. Two Mutations Nos. 1190 and 1191 were sanctioned in his favour on 11‑4‑1964. Through partition mutation No. 1281, dated 15‑6‑1965, the said transferee was alloted Khasra No. 1538/2 measuring 132 Kanals 7 Marlas. The change thus brought was incorporated in the jamabandi of 1966‑67, extract Exh. P. W. 1/11 and consequently, Haji Hayatullah was recorded the exclusive owner of the said khasra number. However, Mst. Shamo‑Sabar, the defendant‑respondent as was recorded in possession of 12 Kanals out of the said land as `Bnla Lagan Bawaja Hissadari', therefore, he initiated proceedings against her on 29‑7‑1968, in Civil Court, Charsadda, for possession of the said land out of Khasra No. 3071/1538 (earlier Khasra No. 1538/2), contending that the possession of the defendant was without any right.

2. The suit was resisted by the defendant‑respondent. The leaned trial Court on the pleadings of the parties in view of their variance framed 8 issues pertaining to limitation, adverse possession, improvements, non joinder of parties, competency of the suit, cause of action and ownership of the land. After recording such evidence as was made available by the parties, the learned trial Court, while rejecting the objections of the defendant?-respondent, granted decree for possession of the land in favour of plaintiff on 21‑3‑1969. Dissatisfied, the defendant moved an appeal against the judgment and decree of the learned trial Court. The said appeal was heard by Mr. Muhammad Afzal Sawar Khan, then Additional District Judge, Peshawar. Issue No. 7 with regard to ownership was taken exception to in the said appeal and while setting aside the finding of the trial Court on the said issues, he accepted the appeal and in result, dismissed the suit of the plaintiff‑respondent vide his judgment dated 9th of January, 1971. Mian Haji Hayatullah filed Regular Second Appeal (No. 153 of 1971) which was heard by Mr. Justice Mian Burhanuddin (as be then was) and dismissed the appeal with costs vide judgment dated 1st of October, 1980. Mian Hayatullah died after the disposal of his appeal. His legal representatives thereafter moved the present Letters Patent Appeal for setting aside the judgment and decree dated 1‑10‑1980 of the Single Judge of this Court and also that of Additional District Judge, Peshawar dated 9th of January, 1971 and restoration that of the judgment and decree of the trial Court dated 21-3‑1969 on the grounds that his Lordship has inadvertantly overlooked the documentary evidence on the record which fully established that partition had been effected and the land in question in result, was allocated to the predecessor of the appellants. It may be necessary to state that Abdullah one of the sons of the deceased (the original appellant) was living outside the country, therefore, though he was impleaded as respondent, but subsequently his name was deleted subject to any exception by the other side vide order dated 19‑10‑1982.

3. The learned counsel for the respondent raised preliminary objections to the maintainability of the appeal on two‑fold grounds namely, that (a) section 31 of the N.‑W. F. P. Courts Regulations, 1930 did not provide for such appeal and (b) the name of one of the successors‑in‑interest of the original appellant having been deleted from the memorandum of appeal and the interest of the appellants common and he being a necessary party as the other substituted appellants, therefore, his absence would make the appeal liable to dismissal.

4. After hearing the arguments of the learned counsel for the parties and consideration of the evidence, we, it may be stated at the outset, find no merit in either of the objections.

5. It is undisputed fact that a right of appeal is a substantive right and as such it cannot be taken away except by `express' provision or necessary 'intendment'. The objection of the learned counsel for the respondent in the first instance was not tenable as the N.‑W. F. P. Courts Regulation, 1930, has been repealed by the West Pakistan Civil Courts Ordinance, 1962 (Ordinance II of 1962). Similarly in view of the fact that as the said right was available to the plaintiff‑appellant at the time of institution of the suit, 8 therefore, even the Law Reforms Ordinance, 1972 would not adversely effect his right. In this connection we may refer to few authorities.

6. It has been held in substance in Aziz Khan v. Maiz Muhammad Khan and 6 others (P L D 1980. Pesh. 227) that :‑ "Appeal is a substantive right available to parties at beginning of action and therefore could only be taken away by express intendment in subsequent amendment of law and that a suit instituted at a time when the right of Second Appeal was available, such a right could be availed." In Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners (P L D 1981. S C 553), while considering a case under the Arbitration Act of 1940 it was observed that :‑ "Right of appeal is not a mere matter of procedure but a substantive right, therefore, institution of suit implies preservation to party concerned of all rights of appeal in force at time of institution of suit till rest of career of suit." Earlier in Garikapati veeraya v. N. Subbiah Choudhry and others (P L D 1957 S C (Ind.) 448), it was held that :‑ "Appeal is not a mere matter of procedure but a vested substantive right inheriting in a party from commencement of action in Court of first instance and governed by law prevailing at that time and that such right is not to be taken away or be affected by subsequent legislation except by an express provision or by necessary implication."

7. The suit in instant case having been brought at a time when the right of Letters‑patent Appeal was available, therefore, as far as the present appellants are concerned, the said right would exist for them despite the Law Reforms Ordinance of 1972.

8. As far as the other objection is concerned, it too has no force for the simple reason that even one of the co‑owners can use a trespasser without impleading the other co‑sharers. In the circumstances, where some of the co‑sharers are party to the appeal, therefore, the non‑presence of one of the co‑sharers will not in any way adversely effect the legality of the suit or for that matter appeal.

9. It was argued on behalf of the appellants regarding merits of the appeal that the learned Single Judge was influenced in his decision of the appeal by the misstatement of the Patwari regarding partition of the land. It was urged that after partition through mutation No. 1281, the land purchased by Haji Hayatullah was given Khasra No. 1538/2 and subsequently, that Khasra No. 3071/1538 in the jamabandi of 1966‑

67. The other co‑sharers in the Shamilat, had therefore, left no interest in the land covered by the said khasra number.

10. Possibly no exception can be taken to the contention of the learned counsel that the predecessor of the present appellants became owner of 132 Kanals 7 Marlas of land by purchase. This fact is amply proved from the record. Mutations Nos. 1190 and 1191, in this connection were attestea in his favour. It is also clear from the revenue record and in its presence there shall be no substance in the statement of the Patwari to state otherwise. that partition was effected and in consequence, specified land was allocated to the transferee. At first the said land was whom by Khasra No. 1538/2 which was given Survey No. 3071/1538 in the jamabandi of 1966‑

67. Mst. Shamo‑Sahar could not in the circumstances claim ownership in this Khasra number, being a co‑sharer in the Shamilat of village Hisara and her claim for ownership by adverse possession already stands repudiated.

11. As a result of the discussion above, we are of the opinion that appellants as successors‑in‑interest of Haji Hayatullah, are entitled to the land in suit part of Khasra No. 3071/1538 having fallen to his share in consequence of partition. We would accept the appeal, set aside the judgment and decree of the learned Single Judge of this Court ate that of the Additional District Judge and would restore judgment that of the learned trial Judge. We would, however, make no order as to costs. M. Y. H. ???????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.