' ATTAULLAH KHAN, J.---This revision petition is directed against the judgments and decree dated 28-3-2011 passed by the learned Additional District Judge, Charsadda at Tangi, and dated 31-7- 2009 of the learned Civil Judge-I, Tangi, whereby appeal as well as suit of the plaintiff/petitioner were dismissed.
2. Brief facts of the case are that one Atta-ur-Rehman filed a suit against Mohabat Khan for possession through pre-emption regarding suit property measuring 9 Kanals and 7 Marlas, detail whereof is fully given in the heading of the plaint. The defendant contested the suit and resultantly, divergent pleadings of the parties gave rise to as many as 7 issues including relief. However, Issue No,3 proved fatal for his case which is to the effect:-- "Whether plaintiff has fulfilled the requirements of requisite Talbs? OPP"
' To prove the factum of fulfilling the requirements of Talbs, the plaintiff besides appearing himself as P.W.3, also produced his evidence in the form of P.W.4 Abdul Malik and Abdul Latif as P.W.5. The learned trial Court because of numerous contradictions in their statements regarding Talb-e-Muwathibat and Talb-e-Ishhad, decided this issued against the plaintiff and thus failure to prove Talbs resulted in rejection of his claim of superior right of pre-emption, vide judgment and decree dated 31-7-2009 .
3. Feeling aggrieved, the judgment and decree was impugned before the learned Additional District Judge which too was dismissed having been incompetently filed, vide judgment and decree dated 28-3-2011. Hence this revision petition.
4. The learned counsel for the petitioner mainly confined his argument to the findings of the learned Appellate Court recorded in Para-8 of the impugned judgment and contended that since the legal heirs of the deceased respondents were available, therefore, case should have been decided on merit. According to the learned counsel, the appellate court has dismissed the appeal on technical ground by holding that it was filed against a dead person.
5. On the other hand, the learned counsel appearing on behalf of the respondents submitted that it was the duty of the appellant to have impleaded the legal heirs of the respondents which he has failed, therefore, appeal was rightly dismissed.
6. I have gone through the record carefully and have considered the submissions made by the learned counsel for the parties.
7. It is an admitted fact that the appellant had filed appeal before the learned Additional District Judge Tangi against, a dead person. It is also on record that during the pendency of the original suit, the defendant Muhabat Khan expired and his legal heirs were brought on record as defendants, vide order dated 20-4-2009. The learned trial court dismissed the suit of the petitioner/plaintiff on 31-7-2009 and against which the petitioner filed appeal before the Appellate, Court on 16-9-2009 against Mohabat Khan, the original owner, who was no more in the world at the time of filing appeal as he died during pendency of the original suit. The first illegality committed on the part of the petitioner is that appeal was filed before the Additional District Judge against a dead person and secondly the legal heirs were not included by amending the A appeal. In this connection I may rely on two judgments of the apex court i.e, one reported as 2007 SCM R 1560 (Rehmat Din and others v. Mirza Nasir Abbas and others) and PLD 1971 Supreme Court 82 (The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others). In the former case, the honourable Supreme Court held as under:--- "We have given our anxious consideration to the submissions made by the learned counsel of the parties and have perused the ' record. It is an admitted fact respondents have filed aforesaid application for dismissal of the appeal as the petitioners have filed appeal against respondents Nos. 1 and 2 who had already died before filing of petition/appeal before this court. Petitioners have not filed any, application for rectification of the same. There are ample authorities to show that there can be no petition/appeal against the dead persons as it would be nullity. See Partap Chand v. Krishna Devi AIR 1988 Delhi 267."
8. The principle laid down in the latter case i.e, PLD 1971 Supreme Court 82, is reproduced as under:- - "It is not disputed that an appeal against a dead party can be amended by bringing his legal representatives on the record. Except Sindh and Upper Burma Courts, all other High Courts in this sub-continent has taken this view. I am not inclined to take a different view on this point. The contention of the respondent, however, is that the correction of the cause title after 1208 days means the bringing of the legal representatives for filing of the appeal after 1208 days and the said delay having not been condoned by this Court, the appeal is not maintainable and is liable to be dismissed with costs. In reply, the appellants have not given any explanation for condoning the delay of 1208 days. The only contention is that on the 19th October, 1968, the Supreme Court sent a notice to the Attorney that Muhammad Haider Ali Khan Panni respondent died on the 3rd June, 1968 and steps may be taken to bring his legal representatives on the record. It was in pursuance of this that the appellant moved an application for bringing the legal representatives of the deceased on the record. According to the appellant, the mistake on their part was bona fide and the delay in correcting the cause-title may be condoned. After hearing the learned counsel for the parties I am satisfied that no case has been made out to condone the delay of 1208 days. The appellant was negligent in pursuing the remedy in this Court. They filed the appeal against a dead person and corrected the cause-title after a lapse of 1208 days. In the absence of any satisfactory explanation, the appeal is barred by 1208 days. It is accordingly dismissed with costs."
9. Perusal of above case-law reveals that appeal against dead person is not maintainable, especially when during the pendency of the appeal, the legal representatives of the dead respondent are not impleaded as respondents.
10. For the reasons discussed above, this revision petition being without any substance stands dismissed, with no order as to costs.