1. ' Above captioned second appeal arises out of following facts: ' Predecessor of respondents herein Gul Akbar Khan and Gul Ahmed Khan sons of Gulzar Khan brought a suit for adverse possession in the Court of Sub-Judge, Dhirkot against defendants- appellants in respect of land comprising No, Khasra 841 measuring 3 Kanals, 8 Marlas situated in Village Koti, Tehsil Dhirkot, District Bagh on 10-10-1984. In the suit, it was averred that grandfather of the plaintiffs namely, Sardar Jhandal Khan forcibly occupied the said land in Dogra regime and remained in continuous possession of the same. After the death of Jhandal Khan, father and uncles of plaintiffs occupied the land and thereafter as a result of family partition, the land was given to father of the plaintiffs who remained in possession as owner. It was averred that Shamas Khan and Muhammad Akbar Khan predecessor of the defendants tried to get the possession of the land but remained unsuccessful. It is stated that one Muhammad Afzal Khan, who was not present at the time of the dispute, came back and executed an agreement on 7-12-2003, Bik. In favour of plaintiffs whereby he acknowledged title as well as adverse possession of the plaintiffs. It was further averred that the possession of the plaintiffs has ripened into ownership and the defendant have no concern whatsoever with the land. Defendants present appellants 1 to 5 controverted the suit by filing written statement on 11-8-1985. A counter-suit for possession was also filed by the defendants---Present appellants on 30-10-1990. This suit was controverted by the respondents herein by filing written statement on 29-7-1991. The learned trial Court consolidated both the suits and framed issues in light of the respective pleadings of the parties. The parties were also provided an opportunity of leading evidence and ultimately the trial Court vide its judgment dated 2-3-2001, decreed the suit filed on behalf of Gul Akbar Khan while counter-suit filed for possession on behalf of the present appellants was dismissed.
2. ' The appellants herein, feeling aggrieved by the judgment and decree of the Civil Judge, Dhirkot, filed an appeal before the Additional District Judge, Dhirkot on 31-5-2001. The learned Additional District Judge, Dhirkot, vide judgment and decree, dated 29-4-2002; for his own reasons, dismissed the appeal, hence, this second appeal.
3. ' Mr. Abdul Rashid Abbasi, Advocate, appearing for the appellants, made the following submissions:--
(i) that originally the suit was filed by predecessor of the respondents herein and one Gul Ahmed Khan claiming joint adverse possession over the suit-land and thereafter Gul Ahmed Khan withdrew his claim on 3-3-2001, thus, in view of the changed position, it was enjoined upon the plaintiff to amend his plaint for inclusion of the whole claim failing which the suit for adverse possession was not maintainable and the conclusion reached by the subordinate Courts is erroneous;
(ii) that as per Revenue Record parties were co-sharer, therefore, the possession of one co-sharer was to be considered as possession of all co-sharers and no ouster can be claimed on the basis of an unregistered document which has not been proved in accordance with the provisions of the Qanun-e-Shahadat Order, 1984 nor the same is incorporated in Revenue Record;
(iii) that mere fact that the document is 30 years old is not sufficient to hold that the same was properly executed, and it was enjoined upon the plaintiffs-respondents to prove the document by other corroborative evidence which is missing in the case, thus, the admission of Exh.P.A. In evidence is contrary to well-settled principle of law of evidence;
(iv) that the judgment of the trial Court is based on no evidence rather is recorded on the basis of surmises and conjectures, hence is liable to be reversed.
4. ' The learned Advocate placed reliance upon following cases:-- PLD 1983 AJK 46, PLD 1982 SC (AJ&K) 37, PLJ 1983 SC (AJ&K) 175, PLD 1994 SC 462 and PLD 1990 Lah.
5. 229.
6. ' Sardar Muhammad Arif Abbasi, Advocate appearing for the other side has controverted the arguments and maintained that the appeal has abated in toto for not impleading the legal heirs of Kala Khan-appellant, who died on 9-9-2002. It was next argued by the learned Advocate that the application for substitution of his legal heirs has been filed after a period of nine months which is time-barred and even it cannot be treated as an application for setting aside the abatement for having filed after the limitation. The learned Advocate further contended that the appellants herein have not challenged the agreement Exh.P.A. In their suit for possession nor denied in the written statement, filed to the suit of the respondents herein, therefore, they are estopped to question the legality of the document and same would be deemed to have been admitted in light of rule 5 of Order 8 of the Code of Civil Procedure.
7. ' The learned Advocate submitted that the suit-land was admittedly in possession of grandfather of the plaintiffs and thereafter remained in possession of their father during his life time and now the plaintiffs are in its possession which is supported by the agreement Exh.P.A. As well as entries in the Revenue Record. The learned Advocate lastly argued that the concurrent findings of the facts reached by the Courts below cannot be reopened in second appeal merely on the ground that from the same record or evidence some other view is possible. The learned Advocate placed reliance on following cases:-- ' PLD 1983 (AJ&K) 81, 1987 CLC 830, 1992 CLC 1591, 1983 CLC 1029, 1985 CLC 695 and 1989 CLC 2369.
8. ' Mr. Abdul Rasheed Abbasi, Advocate, in rebuttal, submitted that the plea of abatement was abandoned by the learned Advocate for the respondents during pendency of the appeal, therefore, the same cannot be raised. The learned Advocate contended that even otherwise no abatement has taken place after adaptation of Law Reforms Ordinance, 1972, in Azad Jammu and Kashmir.
9. ' I have heard the learned Advocates for the parties and have perused the record.
10. ' After giving my anxious thought to the respective arguments of the learned Advocate for the parties, I am of the view that the appeal can be disposed of on the question of abatement as has been pressed by the learned Advocate for the respondents, therefore, the decision on other arguments would be academic.
11. ' On 14-4-2003, an application was filed on behalf of the respondents that Kala Khan one of the appellants died on 26-5-2002 and his legal representatives have not been brought on record within prescribed period of limitation, therefore, the appeal has abated in toto. The appellant filed the objections to this application and sated that after adoptation of Pakistan Law Reforms Ordinance 1972, in Azad Kashmir, the appeal does not abate for not impleading the legal heirs of any party to the suit, therefore, no question of abatement arises. In alternative, it is stated that the share of Kala Khan is determinable, therefore, the appeal will not abate in toto and abatement if any will take place only to the extent the share of said deceased. On 20-5-2003, an application has also been filed by the appellants for impleading the legal heirs of the said deceased. This application has also been objected to by the other side by filing objections supported by an affidavit. Admittedly, amendment effected in the C.P.C. Through Law Reforms Ordinance, 1972, has been adopted in Azad Jammu and Kashmir on 5-3-2003. The date of death of Kala Khan- predecessor of appellants herein is not disputed by the other side which is 26-9-2002. The moot point in the case would be as to whether the amendment adopted in Azad Kashmir will operate retrospectively? If the answer is in affirmative, then what would be its effect on the appeal.
12. After considering the provisions contained in Order XXII, rule 3, C.P.C. And the relevant case-law, I am of the view that the amendments adopted in Azad Jammu and Kashmir on 5-3-2003, have not been given retrospective effect, therefore, the law in existence prior to the adoptation of said amendments, will govern the matter. It may be stated that even amendments effected in the Code of Civil Procedure through Law Reforms Ordinance, 1972, in Pakistan have not been made applicable retrospectively. The controversy has finally been set at rest in Sardar Noor Hussain's case PLD 1983 SC 62 wherein at page 66 the proposition was answered in the following manner:-- "(6) Mr. Kasuri's last contention was that on 26-2-1973, when the High Court held the Letters Patent Appeal to have abated, the Law Reforms Ordinance (XII of 1972), had already come into force, whereby the provision of the Code relating to abatement of an appeal had been omitted and as such the High Court should have implemented the spirit of the new law instead of following the old one. There is no substance in the contention as the abatement having already set in as early as in 1969, and the Law Reforms Ordinance not being retrospective in its operation, the matter had to be decided in accordance with the law as existing in 1969."
13. ' Similar view was reiterated by the apex Court of Pakistan in Khawaja Jalal Din's case 1985 SCM R 1359. The relevant observation is as under:-- "(6) As far the second contention that on account of the amendment made in rules 3(2), 4(3) and 9 of the Order XXII, C.P.C., no question of abatement could possibly arise, we may observe that this question also arose in the case of Sardar Noor v. Chief Settlement Commissioner etc. PLD 1983 SC 62, wherein it was held that the provisions of the Law Reforms Ordinance, 1972 (Ordinance XII of 1972) were not retrospective. Since one of the writ petitioners, as well as two respondents had admittedly died several years before the coming into force of the Law Reforms Ordinance, 1972 and no application for impleading their legal heirs was filed within the prescribed period of limitation, the writ petition had already abated when Ordinance XII of 1972 came into force. Hence, the appellants herein cannot take any advantage of the amendment made by the aforesaid Law Reforms Ordinance, 1972 in rules 3(2), 4(3) and 9 of Order XXII of the Civil Procedure Code."
14. In view of above settled position of law, it is concluded that amendments adopted in Azad Jammu and Kashmir on 5-3-2003 have not been given retrospective effect. The next question is as to whether the appeal will abate in toto or to the extent of the share of Kala Khan? This question can be answered by referring to guideline laid down by the apex Court in a case titled as Muzaffar and 2 others v. Maulvi Aziz-ul-Rehman 1983 CLC 16. Relevant para. 10 of the report is as under:-- "(10) On reading the authorities, cited by the learned counsel for the parties, the points that emerge are:--
(i) when the estate of the deceased respondent is represented by some of the surviving respondents; failure to implead one of the heirs, in time, for lack of knowledge, would not cause abatement of appeal;
(ii) on the death of respondent, when appellant takes all steps to implead legal representatives, within time, the appeal would not abate on account of an omission to bring on record all the heirs, whose whereabouts and particulars were not known to the appellant;
(iii) that on failure to bring on record legal representatives of a sole respondent, within time, a valuable legal right gains by the legal representatives should not be interfered with lightly;
(iv) that on the death of one of the respondents, to determine the question of abatement of appeal, one has necessarily to consider whether the decree is indivisible or not? When the decree is found joint and indivisible. On omission to substitute legal representatives, in time, the appeal shall abate in toto?
(v) the other test to the determination of the question of abatement of appeal in part or as a whole is that in case of acceptance of appeal, there was no likelihood of coming into existence of two inconsistent and contradictory decrees, on failure to implead legal heirs, within time, the appeal shall abate to the extent of deceased respondent. Conversely, on acceptance of appeal, when two inconsistent decrees were likely to come into existence, an omission to implead legal heirs of deceased respondent would cause abatement of appeal as a whole; and
(vi) that in the absence of prayer for extension of time and sufficient reasons for condonation of delay, the Supreme Court shall be slow to condone the delay and extend time in exercise of its discretion. "
15. In view of the afore-stated case-law, the irresistible conclusion is that it was enjoined upon the appellants to make an application for substitution of the legal representatives within the prescribed period of limitation. As has been observed in earlier part of the order that the amendments made in Code of Civil Procedure through Law Reforms Ordinance, 1972, adopted in Azad Jammu and Kashmir, have no retrospective effect, therefore, the plaintiffs-respondents herein cannot be deprived from a vested right which stood accrued in their favour before 5-3- 2003. The decree under challenge has been awarded on the basis of adverse possession, therefore, is indivisible, thus, the appeal stood abated in toto. This view is further supported from the view taken by the apex Court in Aksar Ali's case 1982 CLC 1309. Relevant para. Of the judgment is as under:-- "(6) In the instant case an indivisible decree based on adverse possession had been passed in favour of the respondent-plaintiffs. The decree being indivisible, the death of Jan Muhammad, therefore, would cause the total abatement of the appeal. No laboured arguments or deep thought is required to hold so. In the event the appeal of Sher Muhammad is accepted the decree for adverse possession, relating to the portion of Sher Muhammad, would vanish, but on the same cause of action and subject the decree in favour of the heirs of Jan Muhammad would stand: If the decree is allowed to stand in favour of the heirs of Jan Muhammad deceased but set aside in relation to the portion of Sher Muhammad; then two inconsistent decrees with regard to the same subject-matter would come into being which would be against the well-recognized principle of administration of justice."
16. The upshot of the above discussion is that as the above captioned appeal has abated in toto, therefore, finding no force, it is hereby dismissed with costs.