Present : Karam Elahee Chauhan and Nasim Hasan Shah, JJ (PLP)

KARAM ELAHEE CHAUHAN, J.‑It is not necessary to go into the lengthy details of this case and it will be sufficient for our purpose to state that a Regular Second Appeal No. 363/65 filed by the petitioners was dismissed by the High Court vide its order dated 7‑6‑1981 as incompetent. not maintainable, and as having abated for non impleadment of two necessary parties, namely W Mst. Hamida, and (ii) Ibrahim. These persons were not shown in the panel of respondents, and' later, on objection raised by the respondents their non impleadment was considered as fatal to the further prosecution .of . the appeal.

2. The petitioners have now come tip in a petition for special leave to appeal against the aforesaid order of the High Court to this Court.

3. It was submitted by the learned counsel that the name of Mst. Hamida was omitted because it did not exist in the judgment and decree of the learned Additional District Judge due to which the petitioners were misled and could not make her as a party in their second appeal in the High Court. As regards Ibrahim, it was conceded that in his case there was no such mistake and it appeared to be a simple case of a wrong view of the counsel concerned who in his wisdom probably did not consider, him as a necessary party.

4. The relevant portion in the order of the High Court on the subject reads as follows :‑ "It is by now a settled proposition of law that where the necessary parties ' to the appeal are not brought on the record and the possibility of diver gent decrees not ruled out the appeal would be incompetent. In the case of Murad Begum etc. v. Muhammad Rafiq etc. P L D 1974 S C 322 the Supreme Court of Pakistan observed :‑ `Once it is found that the decree appealed from by some of the defen dants was joint and indivisible against all the defendants, then it follows that the failure to implead the remaining defendants or any of them, would render the appeal incompetent. The principle underlying this rule is that otherwise inconsistent and contradictory decree would come into existence regarding the same subject‑matter and as a result of the same litigation. This principle has been reiterated by the superior Courts on several occasions. See Ram Chand Dalil‑M61 v. Badri Nath A I R 1935 Pesh. 106 ; Ramzan v. Allah Di waya P L D 1953 B J 45; Qasim Khan v. Mst. Malkai P L D 1963 Pesh. 58 ; Muhammad Jamil v. Chairman, Industrial Court P L D 1964 S C 559 ; Wall v. Manak Ali P L D 1965 S C 651 and Shah Muhammad v. Muhammad Bakhsh P L D 1972 S C

321. There is accordingly no escape from the conclusion that the Regular First Appeal filed in the High Court by only seven defendants, out of 16, impleading five defendants as respondents and leaving out four defendants altogether, was not properly constituted, and merited dismissal on that score.' Respectfully relying on the dictum laid down by the Supreme Court of Pakistan in the above‑referred cases which is clearly applicable to the circumstances of the instant appeal the preliminary objection raised by the learned counsel for the respondents prevails and this appeal being not. properly constituted was incompetent and merited dismissal on that score. In this view of the matter it is, therefore, not necessary to deal with the merits of appeal and pass judgment thereon. In the result this appeal fails and is dismissed with no order as to costs."

5. As is evident the view expressed in the above paragraph is quite i accord with long list of precedents quoted therein. In our opinion this w a clear case of an incompetent and not maintainable appeal due to no impleadment of necessary parties, and as the subject‑matter of the dispute, namely the impugned sale of year 1 951 in favour of Muhammad Yaqub namely (now represented by some of his legal representatives namely the petitioners) was an indivisible transaction, therefore, the High Court was justified in holding that the appeal had abated in toto and was no maintainable for the fatal infirmity hereinbefore mentioned, It was argued that if some of the heirs of the vendee had not been impleaded, at the most it could affect only the shares of the non‑impleaded heirs inasmuch as according to Muhammadan Law every heir succeeds only to the extent of hi respective share along with others though as tenants in common. The contention has no merit inasmuch as the present case is to be examined from the point of view of the oneness of the sale above‑mentioned and not part of that sale which was to stand or fall as a whole. The precise facts of this case are that Gullan(vendor/plaintiff) filed a civil suit for a declaration that a sale alleged to have been made by him in favour of Muhammad Yaqub (vendee) was all fictitious without consideration and nullity in the eye of law. The suit was dismissed by the learned Civil Judge on 17‑5‑1962, but on appeal by Gullan was decreed by the learned Additional District Judge on 29‑4‑1965, who reversed the judgment and decree of the learned trial Court. It was against the last mentioned judgment and decree of the learned Additional District Judge that the petitioner filed a regular second appeal in the High Court particulars and result whereof have been mentioned above. The sale as is obvious had been declared to be fictitious, invalid and without considera tion as a whole. If the plea of the learned counsel is accepted and it is held that the appeal abated or was incompetent qua the portion of the sale property proportionate to the shares of the non impleaded heirs, then it will tantamount to holding the sale as valid in part and invalid qua another part. This would result in contradictory decrees and as such the High Court was justified to hold the appeal as incompetent as a whole. Learned counsel wanted to ref‑‑ ‑ to Order 1, rule 10, Order XLI, rule 4, Order XLI, r. 20, and sections 107, 151 152 of the C. P. C. but on the peculiar facts and circumstances above mentioned in our opinion these cannot. avert the result and fate of their incompetent appeal in the High Court. The reasons given for non‑impleadment of the two necessary parties (at least qua Ibrahim) are not satisfactory and the defect of his non‑impleadment alone was sufficient to render the appeal as not maintainable and incompetent as held by the High Court.

6. Learned counsel referred to Muhammad Sher v. Muhammad Khan (1), Prince Ghulam Muhammad .Khan v. Settlement & Rehabilitation Commis sioner (5), Nanak v. Ahmad All (3), Wall and others v. Manak Ali and others (4), Misri Lai Nayak v. Mt. Surji and others (5) and Muhammad Jamil v. The Chairman, Industrial Court and others (6). We have attended to these cases and in our opinion, they are distinguishable and have no relevancy to the peculiar facts and circumstances of the present case and the specific point involved herein. The present case is fully covered by Murad Begum etc. v. Muhammad Rafiq etc. which was rightly relied upon and followed by the High Court. Petition dismissed. (1) P L D 1975 Lah. 1016 (2) 1972 S C M R 359 (3) A I R 1946 Lah.399 (4) P L D 1965 S C 651 (5) AIR 1950 P C 28 (6) P L D 1964 S C 559