1970 PLP 339 (SCMR)

MUHAMMAD YAQUB ALI, J.‑These petitions arise out of six separate suits filed by Haji Karam Khan and Haji Mannu Khan, since deceased, and his son Rasul Bakhsh to pre‑empt the sale of certain agricultural land in favour of Siraj Din, Ghulam Sarwar and Qazi Mohkamud Din, petitioners. The suits were resisted by the latter inter alia on the ground that the land pur chased by them being evacuee property, the civil Court did not have the jurisdiction to pass any decree in respect of it. The Civil Judge, Dera Ghazi Khan, allowed the objection and rejected the plaintiffs' suit under Order VII, rule 11, C. P. C. The plaintiffs thereupon filed appeals in the Court of the District Judge, Dera Ghazi Khan, who set aside the order of the trial Judge on the view that the evacuee lands having been acquired under section 4 of the Land Settlement Act by the Central Government were no longer subject to the bar contained in section 25 of the Land Settlement Act. The suits were thereupon remanded to the trial Court to be disposed of on merits in accordance with law. The petitioners Eventually filed second appeals from the orders of the District Judge in the High Court which were dismissed by a learned Single Judge by order dated the 17th October 1968, affirming the view adopted by the first appellate Court. Thereupon the petitioners applied for leave to appeal being C. Ps. S. L. A. Nos. 214 to 219 of 1969 claiming that until evacuee land was permanently settled on an allottee under sections 15 and 16 of the Land Settlement Act, it remained included in the compensation pool and no order could be passed in respect of it. It is pointed out that leave to appeal has been granted in more than one case to consider the same question of law as arises in these petitions. There is a hurdle in the way of the petitioners. Haji Muhammad Khan died some time before March 1968, when the S. A. Os. were pending in the High Court. His legal Representatives were not brought on the record within time with the result that the appeals ipso facto abated under Order XXII, rule 3 (2) read with rule 11 of the Civil Procedure Code. The remedy open to the petitioner, therefore, was to move the High Court under rule 9 for setting aside the abatement of the appeals before moving this Court. It is pointed out that Rasul Bakhsh one of the legal heirs of Haji Mannu Khan was already on the record and that the other legal Representatives of the deceased‑respondent have also applied for being joined as plaintiffs in the, six suits. This does not remedy the defect that all the appeals had abated when the learned Judge decided them on merits. A fortiori petitions for leave to appeal are not properly constituted. The petitioners should, in the circumstances, either apply to the High Court for restitution of the appeals or, contest the suits in the civil Court on the ground that the suits themselves had abated under rule 3 (2) of Order XXII, C. P. C. In this view, of the petitioners seek permission to withdraw these petitions. The permission is granted and the petitions are dismissed as withdrawn. Petitions dismissed.