P L D 1958 (W (PLP)

Sant Singh v. Gulab Singh A I R 1928 Lah. 572 ref. Said Akbar Khan for Appellants. Raja Muhammad Akram for Respondents. Date of hearing: 30th January 1958. AKHLAQUE HUSSAIN, J.‑--These two appeals arise out of a suit brought by Mahboob Sultan, Aziz‑ur‑Rahman and Nazir Ahmad respondents in Regular Second Appeal No. 139, and Abdur Rahman, the respondent in Regular Second Appeal No. 140, against Muhammad Ashraf and his father Sher Zaman, the appellants in both the appeals. The property in dispute in both the appeals was originally owned by one Khan Muhammad who gifted it to his mother Mst. Jiwani on the 22nd of August 1942 and himself died issueless on the 10th of November 1942. Mst. Jiwani in her turn gifted the property to Muhammad Ashraf, the son of Sher Zaman, her brother. The plaintiffs‑respondents, who are the collaterals of Khan Muhammad, brought a suit on the 7th of February 1953, originally for a declaration that the gift was void under custom and not binding upon them as reversioners. Mst. Jiwani, however, died during the pendency of the suit and by an order of the trial Court dated the 6th of May 1953, the suit was converted into one for possession. The suit was decreed by Mr. Ihsan‑ul‑Haq, Civil Judge 3rd Class, Gujarkhan, on the 4th of May 1954. The defendants preferred an appeal but omitted to implead Abdur Rahman as a respondent against whom they subsequently filed another appeal. The learned Senior Civil Judge, Rawalpindi, dismissed the appeal against Abdur Rahman as barred by time and also rejected the appeal against the other three plaintiffs on the short ground:‑ "The original appeal (No. 47 of 1954) too cannot succeed as the decree against which it was preferred, was jointly passed in favour of four plaintiffs and it could not be split up and challenged only against three of them." As far as the appeal against Abdur Rahman is concerned, the decision of the learned lower appellate Court is un questionably correct. The appellants had come to know of the omission of Abdur Rahman's name from the first appeal on the 25th of October 1954, but they did not file the appeal against him until the 14th of February 1955. No explanation for this delay has been offered before me; nor does it appear to have been offered to the lower Appellate Court. There is thus no merit in Regular Second Appeal No. 140 of 1955 and I dismiss it with costs. The Regular Second Appeal No. 139 of 1955, however, must be accepted. All the four plaintiffs were admittedly entitled, if at all, to definite shares in the property in dispute. It was also open to them to have instituted four separate suits instead of one and in that case the decision in one suit could not have possibly affected the decision in the other three, Similarly, the dismissal of the appeal in the lower Appellate Court against Abdur Rahman could not, in law, lead to the dismissal of the appeal against the three other plaintiffs. It may be that in order to succeed against each of the plaintiffs the defendants‑appellants have to establish the validity of the gifts by Khan Muhammad and Mst. Jiwani and it is also possible that while against Abdur Rahman the gift by Khan Muhammad has been held to be void, it may be upheld in the appeal against the other three persons. But that in itself is no ground for dismissing the appeal against those persons. The rule against passing two contradictory decrees in the same litigation is based upon the conflict in the decrees and not upon the reasons upon which they are based. Since the subject‑matters of the two suits, that is to say, the shares of Abdur Rahman on the one hand and those of the three plaintiffs‑respondents on the other in the property of Khan Muhammad, are separable, there can be no conflict between the decree in the appeal against Abdur Rahman and the decree which may be passed in the appeal against the other three plaintiffs vide Sant Singh v. Gulab Singh (A I R 1928 Lah. 572). There will not be two decrees in respect of the same property and, therefore, the question of any conflict between them cannot arise. The possibility of contradiction or conflict in the judgments is immaterial. For the reasons stated above, the Second Appeal No. 139 of 1955, is accepted, the judgment and decree of the learned lower Appellate Court is set aside and the lower Appellate Court is directed to re‑admit the appeal against Mahboob Sultan, Aziz‑ur‑Rahman and Nazir Ahmad to its original number and to decide it in accordance with law. The parties are directed to appear in the Court of the Senior Civil Judge, Rawalpindi on the 3rd of March 1958. The costs in this Court and in the lower Appellate Court shall abide the result of the appeal. A. H. Order accordingly.