1. ' SARDAR ABDUL HAMEED KHAN, J.---Brief facts of the instant appeal are that the appellant Hassan Noor, instituted before the Civil Judge Bagh on 20-7-1982, a suit for possession on the basis of right of prior purchase pertaining to land measuring 8 kanal 3 marlas survey Nos. 657, 658 situated in village Banni Passari, Tehsil and District Bagh against Haji Said Hussain (vendee/purchaser) and some others, which was transferred through sale deed dated 20-7-1981. One Shama Begum also instituted a suit. After consolidation of the suits of both the pre-emptors were decreed in their favour in the order of the preference. The plaintiff Shamma Begum was ordered to deposit the decretal amount till 3-3-1987 and in case of her failure, the present appellant was directed to do the needful. It is stated that Shamma Begum did not deposit the decretal amount and her suit stood dismissed and the present appellant was ordered to deposit the decretal amount of Rs.
2. 40,000 along with the cost of sale deed. In the light of order of the District Judge Bagh dated 31-8- 1988 in the first appeal till 5-10-1988. The appellant feeling aggrieved by the order of the District Judge Bagh as well as, the Sub Judge Bagh dated 26-1-1987 filed an appeal before this Court on 3- 10-1988 and also obtained suspension order of execution of decree hence, she did not deposit the decreetal amount.
3. ' That during pendency of the appeal due to combustion of judicial buildings Rawalakot, record was burnt to ashes on 30/31 May, 1990 hence, the appellant filed this appeal as an application for re-construction of the record and prayed for treating it as memo of appeal on 24-9-1990.
4. ' During the pendency of this application/appeal, the respondents filed the objections for re- construction of the record on 20-10-1991, wherein, it is averred that the decree and judgment of the District Judge dated 31-5-1988 is admitted. However, this application was not decided and in the meantime the appellant/ petitioner Hassan Noor was died and an application by Tahira Begum, Zafar Farooq, Umar Farooq and Muhammad Nazir was drafted on 19-4-1992, which was filed before Registrar of this Court on 20-4-1992. Next date of appeal/ application was fixed on 26-4-1992.
5. ' In the application, it is stated that Hassan Noor has passed away on 27-1-1992 hence, the application is within time. On this application the objections were filed by the respondents on 21-6- 1992 wherein, it was alleged that the appellant died in the month of October, 1991 and the application for impleadment of legal heirs of Hassan Noor was hopelessly time barred.
6. ' In the light of this application, the parties were allowed to produce their evidence. One of the witnesses Faiz Alam who got his statement recorded in support of the claim of the petitioner Muhammad Nazir Khan, the husband of the deceased Hassan Noor who also stated in his own statement that the Hassan Noor died on 27-1-1992, and he produced an application bearing certificate of the Local Council, an agreement to sell allegedly executed by the deceased dated 18- 1-1992 and a certificate issued by Government High School Dharay regarding Casual leave of this witness/petitioner, (subject to objections from other side). However, in the cross-examination which it is admitted by the said Muhammad Nazir that the alleged date of death of the deceased appellant is over-written. It was also admitted that the Headmaster and Chairman of the Union Council issued these documents on his request but no endorsement or certificate is on these documents regarding the satisfaction of the authority. It is further admitted by the said Mohammad Nazir that he was the attorney of his wife Hassan Noor and that he purchased Stamp Paper for agreement. The statement of Said Hussain respondent is on the record, wherein he stated that the Hassan Noor was firstly married to one Ali Bahadar and later on married with Muhammad Nazir. He stated that she died on 13-10-1991 in the house of her first husband Ali Bahadar and Muhammad Nazir her second husband took her dead body to his village Thob and also exhibited the death certificate issued by Secretary Union Council, which is Exhibited DA dated 4-5-2000.
7. Wherein, the date of death of Hassan Noor is recorded on 30-10-1991. During the cross-examination no question has been put to the respondent regarding legitimacy of the death certificate exhibited in evidence. This application is still awaiting adjudication.
8. ' Arguments heard.
9. ' Sardar Abdul Khaliq Khan Advocate, arguing on behalf of the appellant, pressed the argument to the extent of issue No, 10 regarding the sale price of the suit land and stated that in fact the land was sold against a sum of Rs.18,000 and Rs. 22,000 was taken back by the purchaser after registration of sale deed. Learned counsel further contended that this portion of the statement of the attorney of appellant has not been examined so, it stands admitted. The learned counsel also argued that due to the Adaptation of Law Reforms Ordinance 1972 since 2003, impleadment of the legal heirs is no bar to decide the_ appeal on merits. He further contended that the existence of impugned judgment and decree of the learned District Judge Bagh has been admitted in objections filed by the respondents hence, this application for reconstruction of the record may be treated as appeal filed on 3-10-1988 and may be accepted on merits.
10. ' While controverting, the arguments of the learned counsel for the appellants, Sardar Muhammad Farooq Khan Advocate, the learned counsel for the respondents repudiated the contentions of the learned counsel for the appellants/ petitioners and contended that there is no record appended with the application, wherefrom the petition may be considered as memorandum of appeal. The learned counsel forcefully contended that even otherwise the appeal has abated in toto. On demise of Hassan Noor as the application was filed after lapse of more than 6 months, which is proved by the evidence of the parties in this respect. The learned counsel further contended that the statement of Muhammad Nazir Khan, the husband of the deceased appellant who is one of the legal heirs of the appellant has deposed falsely before the Court. The learned counsel referred the statement of Muhammad Nazir, wherein he has stated that an agreement dated 18-1-1992 allegedly executed by Mst. Hassan Noor in favour of sons of Mohammad Nazir Khan placed on record and stated that the agreement Exh.PK was burnt and deponent produced the attested copy of the same. At this stage on objections on other side the copy of the agreement was taken back.
11. However, an agreement to sale written on 18-1-1992, which has been attested by the Notry Public on 18-11-1992 is on record and other cuttings on the certificate issued by the School and by the allegedly Union Council are doubtful. On the other hand no question was asked from the respondents Said Hussain regarding exhibition of Exh.DA. It is ample proof that Muhammad Nazir husband of Hassan Noor appellant concocted the story of death of the appellant on 18-1-1992.
12. However, the conclusion is that the application for impleadment of legal heirs of the deceased appellant is hopelessly time barred for which no reason is assigned in the application nor any evidence or document has been placed on record. Furthermore, the certificate issued by the Headmaster and the some endorsement on the application of Muhammad Nazir Khan by allegedly Chairman and members of the Union Council are not worth consideration. As far as, the arguments of the learned counsel for the legal heirs of the deceased appellant for adaptation of Law Reforms Ordinance 1972 for the impleadment of legal heirs is concerned, is without any force, because the appeal was filed in 1988 and again was moved for re-construction in 1990 and the lady appellant died in 1991-92. So, this contention of the learned counsel is repelled.
13. ' In the light of record and evidence it is concluded that the application is time barred and the applicants/legal heirs of the appellant cannot be allowed to implead as appellants instead of the appellant Mst. Hassan Noor (deceased).
14. ' So in this eventuality the appeal of the appellant stands abated in toto. Even on merit it is pertinent to note that from the contents of photocopy of the impugned judgment and decree it transpires that the learned District Judge vide judgment dated 31-8-1988, dismissed the appeals of both the appellants and the judgment and decree of the trial Court was upheld. The copies or any photocopy of judgment and decree of the trial Court is also not placed on record where from, the correct position could be ascertained. However, from the last para of the impugned judgment and decree it transpires that the appellant is the second decree holder, where from it cannot be concluded that the first decree holder Mst. Shama Begum (Minor) had deposited the decretal amount or not. Moreover, this Court issued an order of suspension whereby, the execution of the decree was stayed till the decision of this appeal.
15. ' It is pertinent to mention that this is an application for reconstruction of the record of second appeal. It is obvious that in second appeal the copy of judgment of trial Court is to be appended with the memo of appeal as mandatory requirement. Thus it is also obvious that even by treating this application as second appeal with which the copy/ photocopy of the judgment of trial Court is neither appended nor any version regarding this document is on record. Resultantly this being treated as second appeal is liable to be dismissed under Order XLII, Rule 1 read with Order XLI, Rule 1 of C.P.C.
16. ' In the light of above, no resolution can be passed regarding the deposit of decretal amount by this Court.
17. ' Crux of the above discussion, is that the application is being treated as second appeal, which is hereby, dismissed as abated in toto and also under Order XLI, Rule 1 read with Order XLII, Rule 1 of C.P.C. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.