1987 PLP 487 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑Khan Zaman and others, plaintiffs /appellants, have impugned the judgment of a learned Single Judge of the Lahore High Court, dated 4‑11‑1976 whereby their second appeal from the judgment and decree of the learned District Judge, Campbellpur, dated 3‑1‑1973, affirming the judgment and decree of the Civil Judge, 1st Class, Campbellpur, dated 15‑2‑1971, was dismissed.

2. The facts are that one Muhammad Khan was the owner of land measuring 2,172 Kanals 7 Malras situate in the area of Bhedian, Tehsil and District Attock. He died in 1941 and the land devolved upon his widow Mst. Ghulam Nishan as a limited owner under the customary law. On the enforcement of the Shariat Application Act, 1962, her limited estate stood terminated and the property devolved upon the Muslim law heirs of the last male owner, namely, Muhammad Khan. Accordingly on the 14th of April, 1964 a mutation regarding the land in question was attested by the Revenue Officer who allowed 3/4th share to respondents 1 to 3 and the remaining the share to respondent No.4. This mutation was challenged through the present suit by the appellants and their case before the trial Court was that they were the heirs of Ahmad ji who was a full brother of Hayat Muhammad and grandfather of Muhammad Khan, the last male owner, and, therefore, they were entitled to succeed to 3/4th share in the estate in preference to respondents Nos. 1 to

3. In the suit, the appellants also arrayed Mushtaq (respondent No.5) and Noor Hussain (respondent No.6) who were the transferees of 7 Kanals and 2 Kanals 1 Marla, respectively, from Mst. Noor Jehan, respondent No. 3 (since dead). The suit was contested but ultimately it was dismissed by the Civil Judge, 1st Class, Campbellpur, vide his judgment, dated 15‑2‑1971. The appellants filed an appeal before the learned District Judge, Campbellpur, and it was during the pendency of the appeal that Noor Hussain (respondent No.6) died on 4‑11‑1971 but an application under Order XXII, Rule 4, C.P.C. for imp leading his legal representatives was moved on 30‑6‑1972. This application was contested and the learned District Judge not only dismissed the application for imp leading the legal heirs of Noor Hussain as not having been filed within the period of limitation but also dismissed the appeal as having abated in toto, vide his judgment, dated 3‑1‑1973. The second appeal of the appellants also met the same fate through the impugned judgment.

3. Leave was granted in this case to consider whether the appeal would abate in its totality on the death of Noor Hussain, a subsequent transferee (respondent No.6), who died during its pendency and whose legal representatives were not brought on record within the period of limitation or would abate qua him, i.e. Noor Hussain deceased.

4. The learned counsel for the parties heard. The learned counsel for the appellants contended that admittedly Noor Hussain deceased purchased only a specific area measuring 2 Kanals 1 Marla in specific Khasras and on his death, in the circumstances of the case, the appeal would stand abated against him alone without affecting the appeal against the living respondents. He further submitted that the question of inconsistent decrees in the case would also not arise firstly because the land sold to Noor Hussain is divisible and secondly no decree on abatement is passed. Reliance was placed by him on Sant Singh v. Gulab Singh A I R 1928 Lah. 573 and Said Begum v. Nur Ahmad PLD 1978 SC 133. 5.Since in this case Noor Hussain had purchased a specific area in specific Khasra numbers and the land purchased by him is divisible, we are of the view that in such a situation the appeal in toto would not abate but would stand abated as for he was concerned. This appeal thus succeeds and the case is remanded to the learned District Judge, Attock, who will hear and dispose it of on merits expeditiously, preferably, within three months. No costs is, however, allowed. S.Q./4432/S Appeal accepted.