' The instant second appeal assails the judgment and decree dated 3-5-1969 passed by the learned District Judge, Gujranwala, whereby the first appeal filed by Mian Muhammad Shafi, the predecessor-in-interest of the appellant was dismissed as having abated.
2. Precisely, relevant facts are that the predecessor-in-interest of the appellant Mian Muhammad Shafi, filed a suit for declaration that he being a "Panahi Kamil" since before 1968 had assumed the status of "Mauroosi Bila Lagan" of the land described in the plaint and he after enforcement of Act VII of 1962 became owner of the land, without paying any compensation. He also prayed a declaration regarding determination of Tehsildar Wazirabad grading him as a "tenant at will" of he suit-land, as illegal, void and inoperative qua his rights. Predecessor of the appellant also averred that his forefathers were "Moafidars Panahi Kamil" for a period of more than 100 years and that he is in occupation of the land as an owner, without paying any rent to the landlord. According to him, revenue was remitted to him by the Government in lieu of his and his forefather's services rendered to "Khanqah Mian Ghulam Murtaza" and the respondents had been accepting this status. Collusion, fraud and misrepresentation was pleaded qua the Revenue field staff, in preparing the Revenue Record.
3. The respondents being defendants in the suit, contested it by filing written statement wherein they denied status of the predecessor of the appellant that of "Panahi Kamil" or that of occupancy tenancy of the suit-land. The objections regarding jurisdiction of the Court and maintainability of the suit were also raised. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter, after doing the needful, vide his judgment and decree dated 11-7-1968 dismissed the suit with costs.
4. Mian Muhammad Shafi predecessor of the appellant aggrieved of the decision of trial Court dated 11-7-1968 filed an appeal before the learned District Judge, Gujranwala, where pending the appeal an application was filed on 28-11-1968 that Inayat Ali respondent No.16 had died on 30-4- 1968 and the appeal which was filed on 16-7-1968 was brought against a dead person. The appellant in reply to the application, asserted that death of Inayat Ali respondent No.16 was not within his knowledge and that the heirs/legal representatives of the deceased respondent were already on the record as respondents Nos.17 to 19 thus, there was no necessity of filing an application under Order XXII, rule 4 of C.P.C. The respondents produced a copy of mutation of inheritance sanctioned on the death of Inayat Ali-respondent which revealed that the heirs of the deceased respondent were not party to the appeal and thus the Appellate Court held that right to sue did not survive and the appeal abated vide his judgment and decree dated 3-5-1969.
Thereafter, Mian Muhammad Shafi filed the instant appeal pending which he died, and appellants were substituted in his place. The respondents; Nos.3 to 14, 18 to 20, 21, 25, 27 and 32 were represented through counsel namely Messrs Mr. Muhammad Anwar Bhinder Advocate, Mr. A.R.
Shaukat, Advocate and Mr. Irshad Ahmad Cheema, Advocate, but none has appeared in spite of notice to them vide order dated 15-7-2004 for appearance in the case today besides appearance of their names in the daily cause list, hence, the other respondents are proceeded against ex parte.
5. This second appeal was dismissed for non-prosecution on 23-4-1995 and application for its restoration (C.M.581- C/95) was dismissed on 24-6-1996 and the order of dismissal was assailed before the Honourable Supreme Court through C.A. No.543 of 1998 which was graciously allowed and by setting aside the order of dismissal of appeal the case was remanded to this Court for decision of appeal on merits, in accordance with law . Through alighted judgment dated 13-1-2004.
6. The learned counsel for the appellant submitted that the order of abatement of appeal by the learned District Judge is untenable as deceased respondent Inayat Ali had a specified separate share in the land and thus, the right to sue survived. According to him in view of provisions of Order XXII, rule 1, C.P.C. The appeal could not have been dismissed as having abated. He further contended that the respondents Nos. 17 to 19 who are brother and sisters of the deceased were already on the record and in their presence there was no necessity of filing an application for substitution of his heirs/legal representatives. It was further submitted that the first Appellate Court incorrectly remarked that there is no application for setting aside of abatement or for bringing on record the heirs/legal representatives of the deceased-respondents. In support of his submissions he referred to the judgments in the cases of Province of West Pakistan v. Muhammad Hayat and 31 others (PLD 1980 Lahore 23), Lahore Municipal Corporation v. Mian Amiruddin, deceased, through his L.Rs and others (PLJ 1993 Lahore 223). Regarding abatement of appeal reference was made to the judgments of the Honourable Supreme Court in the cases of Wali v. Manak Ali (PLD 1965 Supreme Court 651), Abdul Karim and 7 others v. Said Muhammad and 12 others (1988 SCMR 1804), Syed Baha-ud-Din and another v. Kh. Muhammad Sharif and others (1987 SCMR 940) and Mst. Afzal Begum and others v. Y.M.C.A. Through its General Secretary (PLD 1979 Supreme Court 18).
7. I have anxiously considered the arguments of the learned counsel for the appellants and have examined the record Undeniably, Inayat Ali who was respondent No.16 before the learned first Appellate Court died on 30-4-1968, as is evident from his death certificate available on the record of the Appellate Court below. The appeal before the first Appellate Court was filed on 16-7-1968 which shows that appeal was filed against the dead person i.e. Inayat Ali. The points which hinge for determination are that whether on account of death of one of the respondents who were 33 in number would be rendered incompetent or it would have proceeded against the alive respondents and that order of abatement passed by the first Appellate Court was lawful. Both these questions required determination as to whether the deceased-respondent held any specified separate share in the property in question and if he held a specified share separable from the other respondents then what would be its effect on the appeal. There is no cavil about the proposition that the Order XXII, C.P.C. Applies to the appeals, as well, in view of the judgment by the Honourable Supreme Court in the case of Haji through his legal heirs and others v. Khuda Yar through his legal heirs (PLD 1987 SC 453).
8. The learned counsel for the appellants referred to the Jamabandi for the year 1963-64 wherein, Inayat Ali deceased has been allocated a specific share along with his brother Yousaf Ali to the extent of 3/4th share. It is evident that the deceased-respondent had an independent and specific share in the land in dispute which was separable from the other respondents thus, the right to sue survived against the other respondents as visualized by rule 1 of Order XXII which lays down that death defendant shall not cause the suit to, abate if the right to sue survives.
9. Law as it stood at the time of decision by the Appellate Court, provided that where one of the two or more defendants dies and the right to sue does not survive against the surviving defendants or defendant alone, the Court on application shall cause the legal representatives of the deceased to be made a party to the suit and in case, no such application is made, the suit shall abate as against the deceased-defendant. Order XXII, rule 4; C.P.C. Which has now been amended and reads as under:-- "4.(1). Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives the Court on an application made in that behalf, shall cause the legal representatives of the deceased defendant be mad( a party and shall proceed with suit,
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is, made under sub-rule (1), the suit shall abate as against the deceased defendant."
10. In view of my earlier findings that share of deceased-respondents being specified was separable, the abatement, if any, would be against the deceased-respondent and as right to sue survived against the other respondents, appeal should have continued against them. This Court in the case of Province of West Pakistan (supra) took the view that the parties having calculated separate and distinct interest, quite individual of each other, in case of death of any of them, abatement shall be partial to the extent of deceased and there can be no total abatement in such a situation. A similar view was again taken by this Court in the case of L.M.C. (supra) in this case, the suit for damages filed by more than one person was held would not abate' in toto and would continue on behalf of surviving plaintiff. The Honourable Supreme Court while interpreting the- provisions of Order XXII, rule 4, C.P.0 mandated that where share of the deceased-defendant was specified, total abatement of the suit was illegal and suit would abate qua the share of the deceased alone. The Honourable Supreme Court reaffirmed the earlier view in the case of Syed Baha-ud Din and other (supra), wherein on account of death of one of the respondents in the first appeal, like in the case in hand, total abatement was held to be unsustainable and the case was remanded to this Court to decide the appeal on merits as against surviving 'respondents. The case of Mst. Afzal Begum and others (supra) had also alike, facts, as involved in the present case and on account of death of one of the respondents whose share was separable it was mandated that the appeal will continue against the surviving respondents.
11. Applying the above analogy, I have no hesitation to hold that if Inayat Ali deceased had died earlier to the filing of the appeal before the first Appellate Court appeal only to the extent of dead respondent was incompetent but as regards the other respondents who were alive at that time, it should have continued and decision of the same should have been given on merits, to their extent.
12. For what has been discussed above, it is clear that the order of total abatement of appeal, passed by the learned District Judge vide his judgment and decree dated 3-5-1969 is not sustainable at law, being contrary to settle principles. This second appeal is consequently accepted and by setting aside the judgment and decree dated 3-5-1969 passed by the learned District Judge, Gujranwala, the case is remanded to the first Appellate Court for decision of the first appeal of the appellants, on merits, in accordance with law. There will be no order as to costs.