Raja Saeed Akram Khan, J.--This appeal, by leave of the Court, has been addressed against the judgment of the High Court dated 14.6.2013, whereby the appeal filed by the plaintiff-appellant has been dismissed.
2. The gist of the facts is that the respondents filed a declaratory suit in the Court of Senior Civil Judge, Bhimber regarding the land comprising Musavi No, 6, Square No, 11 Kila-Jat N'os. 6, 7, 14 to 17, 24, 25 measuring 61 kanals and 16 marlas through allotment Permit No, 267 situated at village Dewa Barhamal, Tehsil Barnala, in the area of Chamb. According to their version, the land was allotted to Respondent No, 1 Abdul Rasheed as head of family for his benefit as well as the benefit of other members of his family. Many grounds were raised in the suit. The suit was later on entrusted to Civil Judge, Bhimber who after due process of Saw decreed the suit of respondents vide judgment and decree dated 29.10.2007. On appeal, the learned District Judge, after hearing the parties, dismissed the appeal on 14.1.2010, while upholding the judgment and decree of the trial Court dated 29.10,2007. Feeling aggrieved, the appellant filed second appeal before the High Court on 12.3.2010 which also met the same fate through the impugned judgment, hence, this appeal.
3. Raja Muhammad Shabbir Khan, Advocate, the learned counsel for the appellant, argued that the judgments and decrees of both the Courts below are against law and the facts of the case, which is not sustainable in the eye of law. He submitted that both the Courts below failed to appreciate the record in its true perspective and also failed to consider the points agitated in the written statement but the came was overlooked by all the Courts below. He argued that the appellant specifically raised the point before the Court that originally he purchased the land from Respondent No,
7. The land was handed over to the appellant through lease-agreement but the Courts below failed to distinguish between the lease-agreement and agreement to sell. He submitted that the learned High Court also committed grave illegality, while wrongly relying upon the case reported as [2013 SCR 206]. The learned counsel further submitted that both the Courts below have also over-sighted the facts that the suit was hopelessly time-barred but no such finding in this regard has been recorded. He argued that the appellant after getting the possession of the land in dispute, made much improvements on the land and invested a huge amount but the learned High Court, while passing the impugned judgment has not kept in mind this important aspect of the case. He further argued that it is admitted position that the appellant has paid Rs, 6,00,000/- as rent for 60 years and got the possession of the land, which is still intact with him. He contended that the Azad Jammu and Kashmir Chamb Area Administration and Development Act, 1976 is not applicable in the case in hand. The learned counsel submitted that the party should not be suffered due to fault of the counsel.
4. At the very outset, Sardar Muhammad Azam Khan, the learned counsel for the respondents, raised a preliminary objection that the appellant has not impleaded Mst. Kalsoom Begum as party in the line of respondents before any Court. He argued that Mst. Kalsoom Begum was necessary party and in her favour a decree has already been passed as a plaintiff before the trial Court. He argued that the appeal is therefore, liable to be dismissed on this sole ground. He submitted that under the Azad Jammu and Kashmir Chamb Area Development Act, 1976, neither Respondent. No, 7 could execute the lease-deed nor the appellant was entitled to obtain the lease as had been held by this Court in Appeal No, 31 of 2004 decided on 6.5.2005. He averred that Section 3 of the AJ&K Chamb Area Act, 1976 clearly provides that the land in the Chamb area shall vest to the Government and the same could only be allotted to the categories of person mentioned in Section 4 of the said Act. He lastly argued that under Section 6 of AJ&K Chamb Area Act, 1976, the possession of the land falling in the Chamb Area could be taken by the Deputy Commissioner in case of any violation. The learned counsel submitted that there are concurrent findings recorded by all the Courts below which do not require any indulgence by this Court as there is no misreading or non-reading of evidence. He argued that the land in question was allotted in the names of Respondent Nos. 1, 2 and Hussain Begum and Kalsoom Begum were co-sharers being the family members. He argued that the land was allotted to the family for subsistence and under the M&K Chamb Area Administration and Development Act, 1976, the land deemed to remain under the ownership of the Government and could only be allotted to the persons, who come under the categories mentioned in Section 4 of the said Act and the same cannot be alienated in any way.
The learned counsel contended that one of the family members, Hussain Begum, who entered in the permit of allotment has died and legal heirs of the deceased have been added in the memo of appeal. He further argued that Respondent No, 7 was not authorized to alienate the property without consent and consultation of the other allottees and their legal heirs rather the same has leased out the entire land through a lease-deed dated 15.2.1984 to the appellant without any justification. He argued that immediately after coming into the knowledge about the illegal act of Respondent No, 7, the appellant filed a suit for cancellation of the lease-deed as the same was against law and ineffective on the rights of the respondents. The learned counsel relied upon the cases reported as Muhammad Latif vs. Zulfiqar Ali and 2 others [1993 SCM R 245], Sardar Muhammad Naseem Khan vs. Brig. (R) Muhammad Akbar Khan & 7 others [2003 SCR 142], Barkat Hussain vs. Sardar Misri Khan [PLD 1992 SC (AJ&K) 45], Said Muhammad and others vs. M. Sardar and others [PLD 1989 SC 532] and Mst. Ghulam Bibi and others us. Sarsa Khan and others [PLD 1985 SC 345].
5. We have heard the arguments of both the learned counsel for the parties, and gone through the record made available. Before proceeding with the merits of the case, we are inclined to attend the preliminary 'objection regarding the maintainability of appeal as the same has been filed without arraying Mst. Kalsoom Begum in the line of respondents, who was necessary party and in whose favour a decree has been passed by the trial Court. When the learned counsel for the appellant was confronted with the proposition, he stated that for the first time, it has come into his knowledge about this eventuality. He argued that this technicality should not make a hurdle to do the substantial justice as the same could not be done inadvertently, rather to decide the matter on merits. He argued that valuable rights of the parties were involved, which cannot be defeated on this ground. However, he very frankly conceded that Mst. Kalsoom Begum, being co-allottee of the land, in whose favour a decree has also been passed by the trial Court was not impleaded as party before the first appellate Court, High Court as well as before this Court. When this fact has come into the knowledge of the appellant, he moved an application for amendment in the memo. of appeal before this Court on 18.4.2014. Mst Kalsoom Begum, who was admittedly, one of the plaintiffs before the trial Court and in whose favour a decree has also been passed by the trial Court, was necessary party. From the record, it is spelt out that she was not impleaded as party in the line of the respondents before any appellate Court. It is settled principle of law that no effective order can be passed without impleading a person in the line of the respondents, who is necessary party/in this regard, reliance can be placed on an unreported judgment of this Court titled The Azad Govt of the State of Jammu and Kashmir & others vs. Mujahid Hussain Naqvi & another (Civil Appeal No, 165 of 2000 decided on 4.10.2012), in which it has been observed as under:-- "22. The learned counsel for the appellants has contended that the Authority who passed the dismissal order of the respondent was not arrayed as party in the line of respondent in the High Court therefore, the writ petition was not maintainable. In reply, the respondent has submitted in the written arguments that there was no necessity of impleading the Authority (Prime Minister) as a party in writ proceedings and the writ petition stood competently filed. After giving careful thought to the point, we have come to the conclusion that in absence of the necessary party, i,e, Prime Minister Competent Authority, the writ petition was not maintainable and was liable to be dismissed on this sole ground"
In another unreported judgment of this Court titled Muhammad Subhan vs. Custodian of Evacuee Property & others (Civil Appeal No, 24 of 2014, decided on 29.4.2014) in which this Court has held as under;-- "The respondents who have not been impleaded as party in the line of respondents are co- allottees. Their rights cannot be bifurcated. Without impleading Respondents No, 10 to 12 and 14 to 19, who were party before the High Court and the lower fora, the appeal is not competent. It merits dismissal."
In a case titled Zahid Mehmood Shah and 24 others vs. Azad Gout and 14 others [2011 SCR 159], it has been observed by this Court as under:- "5. I have heard the learned counsel for the parties and perused the record with utmost care. It is evidence from the record that member Board of Revenue dismissed the revision petition on 25th April, 2001. The order was challenged by way of writ petition in the High Court and only Member Board of Revenue was arrayed as party in the case. For resolving the proposition whether the Board of Revenue is necessary party or not, we have to resort to Section 6(3) of the Azad Jammu and Kashmir Board of Revenue Act, 1993. It provides that any order made or decree passed by a member Board of Revenue would be deemed to be the order or decree of Board of Revenue, therefore, the Board of Revenue is a necessary party."
In another case reported as Zeenat Begum and others vs. Fazal Dad and others [1993 SCR 245], wherein it has been held as under:-- "8. Adverting to the first point of query, listed above, we find that Roshan Khan, Sakhi Muhammad and Raja Muhammad were indeed impleaded by their brother Fazal Dad plaintiff as proforma defendants in the suit filed in the Court of Sub-Judge. Yet, however, the decree was claimed in the plaint by the plaintiff against the defendant appellants in his favour as well as in favour of his brothers proforma-defendants. The decree on the ground of adverse possession was allowed in favour of all the brothers including Roshan Khan. From the very nature of the decree it is obvious that it is indivisible and is operative commonly in favour of all the brothers. Roshan Khan, now sought to be impleaded as respondent was therefore, in our view, a necessary party. As the decree cannot be bifurcated, the whole appeal would therefore, if Roshan's name is not allowed to be ins pleaded as respondent become incompetent"
The learned counsel has not shown sufficient cause in his application, therefore, the arguments of the learned counsel are not convincing in nature. The application, which is filed at this belated stage, cannot be considered without provision of sufficient cause. The learned counsel has only taken the ground that the matter is required to be decided on merits rather on the basis of the technicalities of the matter. We are afraid that such argument has no value as the law does not support his contention. On the basis of averments made in the application, it cannot be said that non-impleading the necessary party in the case in hand is a bona fide mistake and the same can be ignored lightly. The application for amendment in the memo. of appeal is not beneficial to the appellant because the appeal before the District Judge and the High Court was not competently filed without impleading him in the line of the respondents. A valuable right had accrued to the other party, therefore, the application for amendment in the memo. of appeal is also time barred because limitation for filing petition for leave to appeal under Order XIII, Rule 1 of the Supreme Court Rules, 1978 is 60 days. The application is dismissed.
6. The learned counsel for the appellant failed to advance any convincing explanation for not impleading Mst Kalsoom Begum as party in the line of the respondents, who was necessary party before the first appellate Court, High Court as well as before this Court, which is fatal for the maintenance of appeal. We find the gross negligence on the part of the appellant, which cannot be ignored lightly. The learned counsel failed to show the legal justification to accommodate the appellant for allowing the application, which has been filed at this belated stage. In this regard, reliance can be placed on a case reported as Masud Ahmed and others vs. United Bank Limited [1992 SCR 98], wherein it has been observed as under: "10. The facts in Farooq Ahmed vs. Mst Rashida Bibi Civil Appeal No, 6 of 1998, decided on 19.2.1989] were that a decree for Rs, 15,000/- was passed in favour of the plaintiff on the basis of dower. The defendant file appeal with the District Judge who returned the appeal as it lay to the High Court.
Appeal was preferred in the High Court after the prescribed limitation and condonation was sought on the basis of 'bona fide mistake'. It was held by the High Court that it was a case of 'gross negligence' and dismissed the appeal. This Court upheld the view of the High Court with the following observation:-- "We have given our due consideration to the arguments raised by the learned counsel for the parties. It may be observed that even an experienced counsel may be misled regarding limitation on account of ambiguity in law or due to divergent judicial pronouncement. But where the law is well settled and there is no ambiguity regarding the correct forum for filing the appeal, the case does not come within the ambit of 'bona fide mistake', relevant provisions embodied in the Courts and Law Code Act, there is no ambiguity that the appeal was competent to the High Court and not to the District Judge. The learned counsel for the appellant could have avoided the mistake by resorting to the relevant provisions of law. Thus, the argument that the counsel for the appellant took due care and caution while choosing the forum for filing the appeal cannot be accepted. In the aforesaid view of the matter we see no reason to differ from the view taken by the High Court and hold that in the instant case the mistake in choosing the wrong was the result of gross negligence on the part of the counsel for the appellant and thus cannot be regarded as 'bona fide mistake'. It may be observed that the counsel for the party is expected to be careful in such cases; otherwise the aggrieved party, as has been held in some of the authorities, may sue his counsel for damages."
In another case reported as Rehmdil Khan & 2 others vs. Ali Safdar Khan & 2 others [1997 SCR 71], it has been observed by this Court as under: "2. A reference may be made to a case reported as Mst. Mahmooda Begum v. Major Malik Muhammad Ishaq [1985 SCMR 890], wherein it has been held that ignorance of law on the part of a counsel cannot be condoned and the party concerned may seek redressal of his grievance against the counsel. Similarly, this Court in a case reported as Muhammad Ishaque Khan v.
Muhammad Hayat Khan [1992 SCR 292], has held that a negligent advice of a counsel cannot be regarded as a sufficient cause for condoning the delay; if the law on the point of limitation can easily be found out from the relevant stature, this would not be a case of bona fide mistake but a case of negligence. Similarly, in case reported as Masud Ahmed v. United Bank Limited [1992 SCR 98], the aforesaid principle was reiterated that a negligent advice on the part of a counsel would not constituted a valid ground for condonation of delay."
7. We are unanimous on the point that Mst Kalsoom Begum, who was one of the plaintiffs and a decree has been passed in her favour by the trial Court was necessary party but she has not been arrayed as party in the line of the respondents before any Court. Therefore, it can safely be held that the appeal in the Court of District Judge, High Court and in this Court was incompetently filed and the same is liable to be dismissed on this sole ground.
We are of the view that the appeal has been filed incompetently; therefore, it would be fruitless exercise to discuss the other points raised by the learned counsel for the appellant. Resultantly, this appeal is dismissed with no costs.