[Appellate Jurisdiction]
Present: SARDAR SAID MUHAMMAD KHAN CJ AND BASHARAT AHMAD SHAIKH, J.

MAQBOOL HUSSAIN alias MAQBOOL AHMAD
versus
JAMAL DIN and 7 others

Civil Appeal No. 10 of 1991, accepted on 4.11.1991.

[On appeal from order of High Court, dated 12.12.1990, hi C.R. No. 43 of 1988]
Abatement.–
—-Non-impleadment of heir of deceased defendant-Whether suit stood abated- -Question of–Question of abatement of suit depends upon as to whether Rahim Bakhsh, defendant, was a necessary party in suit filed by appellant—It is on record that Rahim Bakhsh had sold his total share in suit land in his life tune and he had no interest left in suit land-It cannot be said at any stretch of imagination that Rahim Bakhsh was a necessary party in suit for possession-¬ Held: As Rahim Bakhsh was not a necessary party, his death would not effect suit for possession and no question of abatement of suit arises-Appeal accepted. [Pp.l9&20]A&B

AIR 1921 Lah. 357, AIR 1932 Lah. 641,PLJ 1974 Lah. 458, PLD 1975 Lah. 143, AIR 1923 Lah. 647 and AIR 1926 Cal. 512 rel.

Raja Sher Muhammad Khan, Advocate for Appellant. Syed Nazir Hussain Shah Kazmi, Advocate for Respondents.

Date of hearing: 16.10.1991.

JUDGMENT

Sardar Said Muhammad Khan, C J.-This appeal has been directed against the order of the High Court dated 12-12-1990 whereby the revision petition filed by Jamal Din and others, respondents, was accepted and the suit of the appellant, herein, was declared to have been abated due to non-impleadment of Mst. Taja Begum, a legal representative of Rahim Bukhsh, deceased-defendant.
Brief facts giving rise to the present appeal are that a declaratory suit was filed by Maqbool Hussain alleging that the suit land comprising survey Nos. 7,10 and 151, measuring 37 kanals 16 marlas, was in the ownership of Jamal Din and Rahim Bukhsh, defendants Nos. 1 and 2, but he had forcibly taken the possession of the same in the year 1971 and since then is holding the land alongwith a house adverse to the aforesaid owners. However, Rahim Bukhsh, defendant No. 2, who was father of the appellant, herein, had transferred his share in the suit land through a registered sale-deed to defendant No. 3, Mst. Akbar Jan, despite the fact that he had no subsistent right of ownership in the suit land because the possession of the plaintiff-appellant had ripened into ownership. The plaintiff claimed that the sale-deed executed by Rahim Bukhsh to the extent of his share may be declared null and void and also sought declaration that his possession over the whole of the suit land measuring 37 kanals 16 marlas had ripened into ownership. A cross suit for possession was filed by Jamal Din and Mst. Akbar Jan, defendants, against Maqbool Hussain alongwith a house alleging that the hah0 of the suit land belonged to Jamal Din and the other half had become the ownership of Mst. Akbar Jan, plaintiff-respondent as a result of the sale-deed dated 14-7-1986, executed by her father, Rahim Bukhsh, in her favour. It so happened that during the pendency of the suit, Rahim Bukhsh died. One of his legal representatives, Mst. Taja Begum, daughter of Rahim Bukhsh, was not brought on the record; other representatives of the deceased were already on the record. An objection was raised that Mst. Taja Begum should be arrayed in the line of defendants as one of the legal heirs of Rahim Bukhsh. The learned Sub-Judge brought her on the record despite the objection that limitation for the impleadment of Mst. Taja Begum had already expired. The learned Sub-Judge expressed the view that the limitation in the instant case would not be governed by Article 181 of the Limitation Act and as such the application for bringing her on record is not time-barred. Consequently, Jamal Din filed a revision petition in the High Court challenging the order of the trial Court so far as the same pertained to the impleadment of Mst. Taja Begum as defendant in the suit filed by Maqbool Hussain contending that the suit stood abated due to non-impleadment of Mst. Taja Begum. It has also been recorded in the memorandum of revision petition that as Rahim Bukhsh, before his death, had executed the sale-deed of his share in favour of Mst. Akbar Jan; he had no interest in the property and, thus, even on that score Mst. Taja Begum should have not been impleaded as defendant. The High Court accepted the revision petition holding that the declaratory suit claiming the adverse possession filed by Maqbool Hussain had abated in toto because in case the suit is proceeded so far as the share of Jamal Din is concerned, contradictory decrees may come into existence.
We have heard the arguments and perused the file. The learned counsel for the appellant, Raja Sher Muhammad Khan, has argued that his case before the High Court was that as Rahim Bukhsh had sold his share in the suit land to Mst. Akbar Jan, he was no more a necessary party and, thus, the suit filed by him would not be affected.
The learned counsel for the respondents, Syed Nazir Hussain Shah Kazmi, contended that the impugned order of the High Court did not suffer from any legal infirmity and it was rightly held by the High Court that the suit would abate in toto. He has cited the following authorities in support of his contention that where the interests of the defendants are indivisible and inseperable, the suit or appeal must abate in toto.
1. AksarAli v. Fatal Karim (1982 C.L.C. 1309); and
2. Muzaffar v. Moulvi Azizur Rahman (1983 C.L.C. 16).
We have given our due consideration to the arguments raised at the Bar and are of the opinion that the question as to whether the suit to the extent of Rahim Bukhsh would abate or not depends upon as to whether Rahim Bukhsh was a necessary party in the suit filed by the appellant, herein. It is on the record that Rahim Bukhsh had sold his total share in the suit land in his life time and he had no interest left in the suit land. Jamal Din and Mst. Akbar Jan did not array Mst. Taja Begum as defendant in their suit for possession. The fact that Mst. Akbar Jan had averred in the plaint filed in the suit for possession that she had purchased the total share from Rahim Bukhsh and as such was the sole owner so far as the share of Rahim Bukhsh, her father, was concerned and he had no interest left in the land. In other words, Jamal Din and Mst. Akbar Jan claim exclusive ownership of the total area of the suit land and it is not their case that there was any share left in the suit land so far as Mst. Taja Begum was concerned. Even in the memorandum of revision petition filed by Jamal Din in the High Court it has been mentioned that Mst. Taja Begum was not a necessary party to be impleaded in the suit of adverse possession because Rahim Bukhsh had transferred his share to Mst. Akbar Jan in his life time. Thus, in view of the stand taken by Jamal. Din it cannot be said at any stretch of imagination that Rahim Bukhsh was a necessary party in the suit for possession. It is settled principle of law that if a defendant or plaintiff is not a necessary party, the death of such a party would not affect the suit and no question of abatement arises. A reference may be made to the following authorities which support the aforesaid proposition:-

1. Jai Kishen Das v.Arya Priti Nidhi Sabha (A.I.R. 1921 Lah. 357);
2. BishambarDas \. Kanshi Parshad (A.I.R. 1932 Lah. 641);
3. Shah Jahan Begum v. Baloch (P.LJ. 1974 Lah. 458);
4. UmidAli v. Wall Muhammad (P.L.D. 1975 Lah. 143);
5. Lekha v. Bhani (A.I.R 1923 Lah. 647); and
6. Madhususdan Chakravarti v. Satish Chandra Nag (A.I.R. 1926 Cal. 512).

The upshot of the above discussion is that as Rahim Bukhsh was not a necessary party in the suit for adverse possession, his death would not affect the non-impleadment of one of his legal heirs, i.e., Mst. Taja Begum. Consequently, we accept the appeal, set aside the impugned order of the High Court and direct that the declaratory suit filed by the appellant, herein shall be proceeded according to law. No order is made as to the costs.
(MBC) (Approved for reporting) Appeal accepted.

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