Ch. Muhammad Ibrahim Zia, J.- This appeal by leave of the Court has arisen out of the judgment and decree of the High Court dated 03.05.2014, whereby the appeal filed by the appellant, herein, has been dismissed.
2. The brief facts of the case are that the appellant purchased Shamilat deh land bearing Khasra No. 1885 vide registered sale-deed dated 08.02.1979. One Kafayat Ali in respect of the said land filed a suit against one, Muhammad Sharif and got issued a compromise decree in his favour on 09.10.1982. Thereafter, he transferred the said land in the name of Muhammad Ashiq, respondent No.1, through a gift-deed dated 07.09.1986.
Sakeena Bibi, appellant, challenged the aforementioned decree and gift-deed in the Court of Sub Judge Bhimber, which was later on transmitted to Civil Judge, Samahni. Muhammad Ashiq, also challenged the sale- deed executed in favour of Sakeena Bibi on 03.07.1993 in the Court of Civil Judge Bhimber. The case was later on transferred to Civil Judge, Samahni. The learned Civil Judge Samahni, through consolidated judgment and decree dated 21.12.2005 decreed the suit filed by Mst. Sakeena Bibi and dismissed the suit filed by Muhammad Ashiq. Muhammad Ashiq filed two separate appeals in the Court of District Judge Bhimber on 13.03.2006; one against the decree granted in favour of Sakeena Bibi and the other against the dismissal of his suit filed for cancellation of sale-deed. The learned District Judge Bhimber, after due process of law, accepted the appeal filed for setting-aside the decree granted in favour of Mst. Sakeena Bibi and dismissed the other appeal through judgment and decree dated 15.6.2009. Feeling aggrieved, the appellant filed an appeal before the High Court which was dismissed through the impugned judgment and decree dated 03.05.2014, hence this appeal by leave of the Court.
3. In this appeal on both sides lengthy arguments were addressed on merits of the case. Both the counsel for the parties in the arguments undergone unnecessary labour for scrutinizing the impugned judgment and documentary as well as oral evidence but at the end the learned counsel for the respondents pointed out legal defect of absence of necessary party in the appeal before the High Court as well as before this Court. On this point the learned counsel for the appellant requested for grant of further time to submit written arguments. While reserving the judgment ten days' time was allowed.
4. The learned counsel for the respondents, raised preliminary objection that according to the statement of facts made in the pliant, one Kafayat Ali was necessary party who has neither been arrayed as such in appeal before the High Court nor before this Court. Although, he has died during pendency of appeal before the High Court but the plaintiff-appellant has not even bothered to bring on record his legal heirs. Keeping in view the material facts and averments of the pliant the said Kafayat Ali is necessary party and in his absence neither effective decree can be passed nor any final adjudication is possible. Therefore, on this sole ground this appeal is not maintainable.
5. The learned counsel for the appellant in his written arguments has taken the stand that as Kafayat Ali has transferred the suit property through a gift deed to Ashiq Hussain and he has also filed suit against the appellant but subsequently withdrew the same, thus, he is neither necessary party nor his presence is required to adjudicate upon the matter. Therefore, in his absence the appeal is competent and effective decree can be passed. He placed reliance on Maqbool Hussain vs. Jamal Din & others [1992 SCR 392], Muhammad Sabeel vs. Muhammad Riaz [1992 SCR 386] and Murtaza Construction Corporation (Pvt.) Ltd vs. The City District Government and another [2007 MLD 1858]. He submitted that as this point has neither been raised in the High Court nor in the concise statement before this Court, hence, the same cannot be raised for the first time before this Court. In this regard reference can be made to the cases reported as Sadiq Hussain Qureshi vs. Azad Govt. & others [1992 SCR 356], M. Azad Khan vs. Secretary AJK Council [1993 SCR 387] and Muhammad Riaz Khan vs. Inspector General of Police & others [2010 SCR 131].
6. We have considered the arguments advanced by the leaned counsel for the parties, written arguments and also gone through the record made available. As the point of necessary party goes to the root of the case, therefore, without resolution of same discussion on the merits of the case or deliberation on other points, will be fruitless. Therefore, we opt for resolution of this preliminary objection at first. For determination of the question whether the omitted party is necessary to be impleaded, the contents of the plaint are of basic importance. The appellant in her plaint arrayed one Kafayat Ali s/o Muzaffar Khan as defendant No.1, whereas another defendant Muhammad Sharif s/o Fazal Din (although the parties have not pointed out but it is noticed from the record) was also arrayed as defendant No.3 in the plaint. The plaintiff-appellant has challenged the validity of the compromise decree passed on 9.10.1982 in the suit filed by Kafayat Ali against Muhammad Sharif. On the basis of this compromise decree Kafayat Ali executed gift-deed in favour of Ashiq Hussain on 7.09.1986 which has also been challenged. The plaintiff appellant further averred in her plaint that defendants No. 1 (Kafayat Ali) and 2 (Ashiq Hussain) have forcefully encroached upon the land measuring 6 Kanal towards East and brought the same under their possession. The plaintiff-appellant has also prayed for recovery of possession from Kafayat Ali. It will be useful to reproduce here the prayer clause of the suit which reads as follows:- {{URDU TEXT}} According to the averments of the plaint and material facts brought on record the basic grievance of the plaintiff- appellant has arisen from the compromise decree which has been passed in the suit filed by Kafayat Ali against Muhammad Sharif. In the said decree, not only the rights of Kafayat Ali have also been determined but also that of Muhammad Sharif have been determined. In this state of affairs, there is no doubt that both Kafayat Ali and Muhammad Sharif are necessary parties for the reasons best known to the plaintiff-appellant. Amazingly, both of them have not been arrayed as party in appeal before the High Court, whereas, they were party in the impugned judgment passed by the learned District Judge. Neither there is any explanation in this regard in memo of appeal filed before the High Court nor before this Court. In this state of affairs, we have no hesitation in holding that Kafayat Ali and Muhammad Sharif were necessary parties according to the material facts of this case and in their absence the validity of the compromise decree dated 09.10.1982 cannot be properly ascertained. Thus, in their absence the appeal before the High Court as well as before this Court was not competent. Our this view finds support from the judgment titled Mst. Nazir Begum vs. Muhammad Akram (Civil Appeal No. 115/2003 decided on 20.01.2016), wherein while dealing with the identical proposition it has been held as follows:- "7. In view of the above stated background, we have no hesitation to hold that in absence of Muhammad Yousaf, owner, according to the nature of the facts as pleaded in the amended plaint, the suit was not maintainable and on this sold point the same was liable to be dismissed. As the suit has been declared non- maintainable, therefore, all the other points argued on behalf of the parties have become irrelevant and need not be dilated upon."
Our this view is further fortified from the principle of law laid down in the cases reported as Zeenat Begum and others vs. Fazal Dad and others [1993 SCR 245] and Muhammad Khalid & others vs. Muhammad Akram & others [2000 YLR 1918].
7. So far as the other arguments that this point has not been raised in the concise statement or before the High Court, is concerned, it has no substance as even without raising the point it is the duty of the Court to determine, whether the appeal is competently filed which includes the fulfilment of mandatory statutory requirements such line furnishing certified copies etc., and also impleading necessary parties. Even otherwise, there is no bar on the Court to consider such point at any stage. In this regard reliance may be placed on the judgment reported as Raja Muhammad Ashraf Khan Kayani vs. Azad Govt. & others [1997 SCR 389] in which it has been held that the point of necessary party although not raised in appeal nor in concise statement but goes to the root of the case, can be allowed to be raised for the first time in this Court and such point can be raised at any time if it does not need any detailed investigation. Thus, the preliminary objection raised by the learned counsel for the respondents prevails. On this legal proposition, the case law referred by the learned counsel for the appellant due to distinguishable facts is not fully applicable
8. However, keeping in view the nature of the suit property which is admittedly Shamilat deh land and both the parties claim their title on the basis of sale-deed and compromise decree, it may be observed that in this regard this Court has already enunciated principle of law that in respect of Shamilat deh land, the decree of title cannot be granted. Reference may be made to the cases reported as Khalid Hussain and others vs. Haji Muhammad Rafique and another[2008 SCR 2007] and Khalid Hussain & others vs. Muhammad Najeeb [2008 SCR 223].
This Court has consistently enunciated principle of law that the land owners of the village, if they are in possession of any portion of Shamilat deh land, can retain such possession till legal partition of the land by the competent authority and on determination of proportionate share they can be ejected from the excess land if found in their possession. Therefore, for doing complete justice we deem it also necessary to hold that as both the parties are land owners in the village and they claimed to be possession of the Shamilat deh land, but they, on legal partition of the Shamilat deh land of the village, shall only be entitled to the land to the extent of the share determined according to their entitlement.
As the preliminary objection prevails, therefore, this appeal stands dismissed with no order as to costs.