P L D 1969 Peshawar 234 (PLP)

Date of hearing: 20th May 1959. SHAH ZAMAN KHAN BABAR, J.‑

Alam Khan and 7 others plaintiff‑respondents, of village Kukar, Tehsil Peshawar, instituted as suit against Syed Mastan Shah and 162 others, residents of the same village, seeking a declaration to the effect that plaintiffs are owners in possession of the land, measuring 595 kanals, 4 marlas situate in village Kukar, Tehsil Peshawar, that the defendants have nothing to do with it, they are not entitled to partition of the ,property an dispute, and that the entries in the revenue papers are wrongly recorded in favour of the defendants against the plaintiffs. The suit was instituted at No. 126/1 in 1952. Later on the plaint was amended in 1958, and the suit was given new No. 256/1. Finally the suit was given No. 239/1 of 1959. In the ramended plaint decree for declaration was prayed :‑ (alif) that the suit land measuring 595 kanals 4 marlas is shamilat‑i‑deh, and the plaintiffs, who are jaddi malikan in village Kukar are sole proprietors with the exception of malikan‑i‑kandi Saidan and those proprietors shown to have later on become owners by purchase, that malkan‑i‑kandi Saidan and the owners by purchase have no proprietary rights in the suit land :except grazing rights and that the defendants are not entitled :to partition the suit land, (bai) that the revenue entries against the rights of the plaintiffs are wrong and liable to correction.

2. The suit was contested by various defendants on various grounds. Mr. Muhammad Khursbid Khan, Sub‑Judge, Ist Class, Peshawar, tried the suit. He by his judgment dated 29‑6‑1969 4ismissed the plaintiffs' suit with costs.

3. The plaintiffs preferred an appeal against this judgment and decree in the Court of District Judge, Peshawar. This appeal (C. A. No. 114/59) was decided by the Additional District Judge, Peshawar, on 29‑2‑

60. In this appeal it was found that two of the respondents, namely, Mst. Zau Jan and Mst. Maqbool had died during the pendency of the appeal and their legal representa tives were not brought on record within time. The learned Additional District Judge came to a finding that the appeal had abated in toto, and its decision had become impossible on account of its total abatement.

4. The plaintiffs came up on further appeal (RSA : No. 204/138 of 1960) to this Court under section 31 of the N.‑W. F. Province Courts Regulation.

5. Vide order sheet dated 9‑12‑1963 of the Additional Registrar, respondents Nos. 15, 17, 21, 23, 24, 26, 27, 52, 56, 62, 14, 80, 84, 97.and 114 were reported to have died. The appellants were directed to apply for brining on record the legal representa tives of the deceased respondents within a week. This order has not been complied with up till this time. On 1‑5‑1964 n Syed Gul Badshah and Syed Lal Badshah respondents through their counsel applied that respondents 21, 26, 27, 62, 72, 73 and 97 had died more than three years ago except respondent No. 72, who was shown to have died more than 1~ years back, and as such the appeal be declared abated. The counsel for the appel lants submitted his reply to this application dated 1‑5‑1964, on 30‑6‑1964. The main reply was that the respondents named in the application have no share in the land in suit and have been impleaded as defendants in the suit by inadvertence.

6. Mr. Pir Bakhsh Khan, counsel for the respondents, raised a preliminary objection that the legal Representatives of the 15 respondents mentioned in the order sheet of the Additional Registrar dated 9‑12‑1963 besides respondents Nos. 72 and 73 mentioned in the respondents application dated 1‑5‑64 have not been brought on record within time and that the appeal has abated in toto. He argued that the suit land being shamilat of the village, every co‑sharer in this shamilat is a necessary party to the suit. The contention appears to be weighty. All the defendant‑respondents in the suit were considered by the plaintiffs as necessary parties and therefore, they were impleaded as such. The plaintiffs had claimed declaratory reliefs against all the defendant‑respondents jointly. The plaintiffs suit was dismissed against all the defendants. In Mulu and others v. Ghanava and others (A I R 1934 Lah. 366), at page 367 (c), it was held :‑ "A suit to obtain a declaration that the plaintiffs possess, certain rights in the shamilat can be maintained only if all the proprietors have been impleaded as parties."

7. It is well‑settled proposition of law that where the appeal becomes imperfectly constituted for want of necessary or essential parties, where the interests of the defendants in the suit are joint and indivisible, where the decree appealed from is joint and indivisible and where the absence of the legal representatives of the deceased from the record renders it impossible to proceed with the appeal as against the rest, the appeal will abate in toto. The learned Sub‑Judge 1st Class on issue No. 6 has held that the suit land is jointly owned by the plaintiffs and the defendants. In Rihhi Ram and others v. Durga Das and others (A I R 1926 Lah. 216) it was ruled :‑ "Where all the proprietors were necessary parties because they were all joint owners of shamilat and were equally interested therein and the suit involved a question affecting the rights of all of them as a body, but permission was given to some only to conduct the second appeal under O. 1, r. 8 and one of the respondents for whom such permission was given was dead, the appeal abates if his legal representatives are not brought on: record." In Wali and others v. Manak Ali and others (P L D 1965 S C 651), it has been held' that the order of dismissal of suit or appeal against the living defendants or respondents will be justified only if it becomes impossible to proceed with the suit or appeal on account of its abatement as against the deceased party. As paid earlier, the deceased‑respondents being necessary parties to the suit and appeal, it will become impossible to proceed with this appeal in their absence.

8. As a result of the above discussion, we hold that this appeal of the appellants had abated in toto. A. E. Order accordingly.