2023 PLP 24 (MLD)

MUHAMMAD EJAZ SWATI, J.

The respondents Nos.1 to 4 (plaintiffs) filed a suit for declaration, partition, mesne profit and permanent injunction against the petitioner (defendant) and respondents Nos.5 to 11 and averred that the father of the plaintiffs died in the year 1991. He had contracted two marriages i.e. Mst. Bibi Razma (first wife) and Mst. Mah Gul (second wife). From first wife seven children i.e. i. Haji Akram, ii. Murad Khan, iii. Sohial Khan, iv. Ajmal Khan, v. Qutab Khan, vi. Mst. Bibi Amina and vii. Bibi Ayesha were born. The plaintiffs and defendants Nos.1 and 2 are predecessor-in-interest of the respondents Nos.6 and 7 namely (late) Asad Khan and petitioner is from second wife.

2. It was the case of plaintiffs that predecessor in interest of the parties had various properties described in paragraph No.6 of the plaint, including agriculture properties comprising of more than 200 acres situated in Mouza Khushkaba Bazaar Kohna, Tappa Saddar Surkhab Tehsil and District Pishin, which according to plaintiffs are in possession of the children of first wife of (late) Haji Malik Ahmed Jan.

3. Besides above properties a property measuring 2500 sq. ft had also been sold to Yousaf Ali, Sadiq Ali, Sadaqat Ali, and Akbar Ali sons of Mumtaz Ali (the purchaser) vide mutation dated 28.02.2013, which facts came on record when petitioner (defendant) produced mutation Ex.D/12-A.

4. The suit was contested by the private defendants including petitioner by way of filing written statements. After framing issues and producing evidence by both the parties, during arguments, the learned Senior Civil Judge-IV, Quetta (the trial Court), vide order dated 13.11.2017 (the impugned order) directed to implead the sons and daughters of first wife of (late) Haji Ahmed Jan and the purchasers as defendants.

5. Learned counsel for the petitioner contended that plaintiffs in para No.3 of the plaint specifically mentioned that in 1996 a family settlement took place whereby children of the first wife opted to retain the property situated at Pishin, therefore, they were neither necessary parties, nor proper; that the plaint does not disclose any cause of action or relief against them, therefore, impleadment of them would start a multiplicity of litigation and would frustrate the proceedings; that plaintiffs are well aware about the family settlement between the parties and due to which the other brothers were not impleaded, therefore, the impugned order is liable to be set aside.

6. Learned counsel for the respondents (plaintiffs) contended that the plaintiffs have also sought relief for partition of property situated at Pishin, therefore, impleadment of the legal heirs/children of the first wife is necessary for just decision of the case.

7. We have heard the learned counsel for the parties and perused the record, which reveals that the first wife of (late) Haji Malik Ahmed Jan namely Mst. Bibi Razma had five sons and two daughters as mentioned herein above. While from the second wife namely Bibi Mah Gul the plaintiffs and respondent No.5 petitioner and predecessor in interest of the respondents Nos. 6 and 7 namely Asad Khan Kakar (late) were born. The respondents Nos.1 to 4 (plaintiff) had filed suit for declaration, partition, mesne profit and permanent injunction and claimed their shares and mesne profit from the properties left by their (late) father Haji Malik Ahmed Jan. The detail of the property is mentioned in the para No.6 of the plaint, wherein at clause VII agricultural property about 200 acres situated in Mouza Khushkaba Bazaar Kohna, Tappa Saddar Surkhab Tehsil and District Pishin is also mentioned regarding which the plaintiffs sought partition and possession to the extent of their respective shares. Whereas contention of the plaintiffs in para No.3 of the plaint is concerned, it is clearly mentioned that a family settlement took place in the year 1996 or thereabout, whereby the first wife and her children opted to live at Pishin, whereas that of second wife at Quetta, but in the above said para it is nowhere mentioned that plaintiff waived their right in respect of property situated at Pishin. Since the plaintiff had sought relief in respect of property situated at Pishin, therefore, the legal heirs of (late) Haji Malik Ahmed Jan from first wife are necessary party. The contention of the learned counsel for the petitioner that the settlement with regard to property at Pishin has taken place, but no mutation had been produced or annexed along with the petition. It is well settled principle that it is for the plaintiffs in a suit to bring the parties against whom he or they had any dispute and to implead them as a defendant in the suit, but the general rules is subject to Order I, Rule 10(2), Civil Procedure Code (C.P.C.), which provides about the necessary or proper parties, a person is a necessary party when in his absence relief claimed in the suit cannot be granted or without whom an effective order cannot be passed, whereas proper party presence enable the court to finally adjudicate upon the matter involved in the suit. Though sub rule 9 of Order I, C.P.C. provides that non-joinder and misjoinder of the parties will not by itself defeat the suit yet where there is none of necessary party i.e. the party who ought to have been joined and in whose absence an affective decree cannot be passed, the suit will ultimately fail unless necessary parties are made and impleaded to the suit. Reference in this respect is to be made to case titled Mian Zafar Ali and another v. Mian Khurshed Ali (2020 SCMR 291), wherein the Honorable Supreme Court of Pakistan observed as under: "No doubt that non-joinder of a party does not amount to dismissal of the suit in terms of Order I, Rule 9, C.P.C., however, in this case where the question has arisen as to whether private partition of the property in joint khata has taken place way back in 1960 and the fact that Mian Rustam Ali who was survived not only by the appellants but by two daughters and a widow, we consider it necessary that they ought to have been made, party in the suit. In this view of the matter, we dispose of this appeal, set aside the impugned judgment and remand the case back to the Trial Court to decide the suit afresh. The appellants shall implead in the suit the remaining surviving heirs of Mian Rustam Ali as party. They shall also implead the revenue officials as party. The learned Trial Court shall then allow the newly added parties to file their respective written statements and then frame fresh issues for determination."

8. In the instant case the sons and daughters of (late) Haji Malik Ahmed Jan from his first wife Bibi Razma are necessary party and as per mutation Ex.D/12-A a property situated at Ward II Tappa Urban has been sold to the vendees/purchasers namely Muhammad Sadiq, Yusaf Ali, Sadiq Ali and Sadaqat Ali, therefore, their impleadment is also necessary for the just and fair decision of the suit. No other illegality and irregularity has been point out to warrant interference in the impugned order. In view of the above, Civil Revision Petition No.378 of 2017 is dismissed. Parties are left to bear their own cost. SA/30/Bal. Petition dismissed.