' JAWWAD S. KHAWAJA, L- This revision petition and connected Civil Revision No. 1185 of 2005 impugn the same order dated 14-3-2005 passed by the learned Additional District Judge, Lahore, whereby the decree of the learned trial Court dated 28-7-1999 was set aside and the case was remanded to the learned trial Court. Through an elaborate admitting order passed by my learned brother Muhammad Khalid Alvi, J., the basis, on which the case was remanded, has been affirmed.
The petition was, however, admitted to regular hearing for the reason noted in paragraph 6 of the admitting order, which is reproduced herein below for case of reference:-- ' However, there is a second point raised by the learned counsel for the petitioners which requires consideration i.e. That the appeal filed by defendants Nos.l to 5, 9 and IQl was incompetent without impleading defendants Nos.6 to 8 and 11 to 13. It is argued that although under rule 4. Of Order XLI, C.P.C. Anyone of the plaintiffs or the defendants having common cause couid file an appeal but in such an appeal the other co- defendants or co-plaintiffs are necessarily required to be impleaded as a-party, if anyone of them is not so impleaded the appeal becomes incompetent. It is further added that rule 33 of Order XLI in such circumstances would also be not of much help."
2. In order to understand the context in which the above question has arisen it is necessary to set out, briefly, the relevant circumstances of the case. The property in dispute between the parties was, admittedly, owned by Ghaseeta, who died in 1936 and was survived by two sons, namely, Ilam Din and Talia Mand and two daughters, namely, Mehran Bibi and Begum Bibi. The parties to these two petitions are the descendants of the two sons and two daughters of Ghaseeta. These two petitions arise out of a declaratory suit filed by the three petitioners in the present Civil Revision No. 1217 of 2005. These petitioners-.Plaintiffs are the sons of Begum Bibi d/o Ghaseeta. The aforesaid declaratory suit was decreed by the learned trial Court on 28-7-1999 in the following terms:- "The suit is decreed, in favour of the plaintiffs and against the defendants, Mutation No.575 is declared null and void, illegal and inoperative upon the rights of late Begum Bibi and Mehran Bibi and their successors in interest. Further the successors in interest of Ilam Din and Taliamand are permanently restrained from alienating any share in excess to what they are entitled from the inheritance of late Ghaseeta."
3. The aforesaid decree recognized that Begum Bibi (predecessor-in-interest of the petitioners:plaintiffs) and Mehran Bibi (predeicessor-in-interest of the petitioners in connected Civil Revision No. 1185 of 2005) were wrongly ousted from the inheritance of Ghaseeta through mutation No.575 which had been sanctioned in favour of Ilam Din and Talia Mand only. The decree, quite clearly, is indivisible and it was, therefore, necessary for respondents Nos.l to 5, 9 and 10 to array all necessary parties in the appeal filed by them. It is not in dispute that the petitioners in Civil Revision No. 1185 of 2005, who are the descendants of Mehran Bibi d/o Ghaseeta, were not impleaded as respondents in the appeal filed by respondents Nos.l to 5, 9 and 10, although they were defendants in the suit. Furthermore, respondent Nos.6 to 8 were also omitted from the array of respondents in the appellate Court..
4. Here it may be reiterated that the petitioners in Civil Revision No.1185 of 2005 being the L.Rs. Of Mehran Bibi were the beneficiaries of the decree of the trial Court and were also defendants in the declaratory suit, referred to above. They were, therefore, necessary parties. Consequently, the omission of respondents Nos.l to 5, 9 and 10 to implead them as respondents in their appeal rendered the appeal incompetent. If any support for this conclusion is required, reference may be made to the judgment in the case titled Shoaib Ahmad Faridi v. ,UBL (RFA No.244 of 2006) decided on 2-3-2007 and the case law referred to in the said judgment.
5. From the foregoing discussion, it follows that the learned appellate Court passed the remand order although the appeal before it was not competent and was, therefore, liable to be dismissed.
In this view of the matter, the remand order is not legally sustainable. The same is, therefore, set aside, with the result that the decree of the learned trial Court dated 28-7-1999 is affirmed having attained finality.