' The petitioner has called in question the correctness of the order dated 14th January, 1971 whereby the learned Additional District Judge, Sialkot dismissed the appeal against the refusal of the Administrative Civil Judge to set aside the abatement caused on account of the death of Abdul Haq, one of the defendants.
2. On their failure to implead in time the legal representatives of Abdul Haq, the deceased defendant, the suit filed by the petitioner and three others for declaration and perpetual injunction was dismissed as abated and the application for setting aside the abatement was rejected. The petitioner's appeal also did not succeed. Hence this revision petition.
3. I find that the learned Additional District Judge has dismissed the appeal simply refusing to set aside the abatement not adverting to whether the suit abates partially or in toto. The trial Judge has dismissed the suit as if the death of the defendant has caused the total abatement without applying his mind how could it happen. I would have remanded the case for determination of this question, but much time is likely to be taken in this respect. Therefore I consider it proper to take up this question in revision.
4. It requires to be seen whether the suit was to abate totally or only as against the deceased defendant whose legal representatives were not brought on record. The test laid down in Wali and others v. Manak All and others (I) that abatement as such takes place only as regards the defendant or respondent who dies and when "total abatement" of the suit or the appeal is spoken of it is meant that on account of the situation that is created by the abatement of the suit as against a party the suit or appeal cannot for one reason or the other proceed at all. Following the rule it is evident that where the matter could be decided without passing two contradictory decrees and where the proceedings could be competent without impleading the deceased as a party, the abatement of the suit is partial i,e, with, regard to the deceased only. In the instant case, the suit is for declaration that plaintiffs are the owners {{FOOT NOTE}}
(1) PLD 190 SC 651 {{FOOT NOTE}} ' in possession and that the defendants have no right to it. As a consequential relief a prayer is made for perpetual injunction to restrain the defendants from interfering with the possession of the plaintiffs. According to the Jamabandi (Exh. P 1) for the year 1906-07 the disputed Khasra numbers 918/137 and 923/139 measuring 15 kanals, 6 marlas was shown to be the ownership of Ghulam Muhammad, the father of the plaintiffs. The same is the entry in Missal Haqiat of 1913-14 and the land in dispute measuring 15 kanals, 11 marlas appears to be situated on Chah Ghula'm Muhammadwala. It is in Jamabandi for the year 1961-62 that the same land is shown to belong to the defendants 1 to 4 including Abdul Haq, the deceased. It is shown to be cultivated by Said son of Ghulam Muhammad, the petitioner-plaintiff. It is probably on account of this entry that the plaintiffs felt aggrieved and filed the suit. If seen, the share of the deceased is I/6th (1/3rd of 1/2).
This entry is a cloud on the interests of the plaintiffs which they want to avoid. Each of the defendants, according to the jamabandi, proclaims to be an owner of the share specified therein.
In such circumstances it B was open to the plaintiffs to file a suit on each invasion against each of the proclaimed owners or join them in one suit. It can, therefore, be said that the suits if filed against all the defendants 1 to 4 separately, would be competent and each one of them could be restrained from interfering with the plaintiff's possession. In other words, this suit, being based on distinct and separable causes could proceed to a final adjudication in the absence of the legal representatives of the deceased - defendant. The partial abatement, therefore, did not affect the rest of the suit.
5. In Nanak v. Ahmad Ali (1) a suit had been filed for declaration of ownership of certain property and for cancellation of a sale deed with respect to that property by a defendant in favour of two other defendants. The suit was decreed and the two defendants who had purchased the property filed an appeal. But one of them died without his legal representatives being brought on record. It was held that the abatement of the appeal of one could not bring into existence contradictory decrees though the deed had been found to be void by the trial Court and may be found to be valid by the appellate Court, because the shares of the two defendants were separate and each decree would relate to a separate share. The same view was taken in Sant Singh v. Golab Singh (2).
6. In view of what has been found above I am constrained to hold that the suit has abated to the extent of 1/6th share of the deceased only. The remaining 5/6th suit shall proceed. I, therefore, set aside the order of abatement of 5/6th of the suit and remand the case to the learned District Judge, Sialkot for transmission to the competent Court of original jurisdiction to decide the same on merits. The parties are left to bear their own costs. {{FOOT NOTE}}
(1) AIR 1946 Lah. 399 (2) AIR 1928 Lah. 572 {{FOOT NOTE}}