ALI BAIG, J.---Through this single judgment I intend to decide two revision petitions bearing No,C.Rev.51/2012 and Civil Revision Petition No,59/2012 filed by the parties as common question of law and facts are involved in both revision petitions.
2. This civil revision petition calls in question the propriety and legality of the impugned judgment/decree dated 5-09-2012 passed by the learned District Judge Gilgit, whereby the learned 1st Appellate Court has dismissed the Civil 1st Appeal of the present petitioner by upholding the judgment/decree dated 14-05-2010 passed by the learned trial court in favour of the present respondents/plaintiffs.
3. Succinctly, the facts germane for the disposal of this revision petition are that the present respondents/plaintiffs filed a suit for declaration and possession of suit land fully "described in the heading of the plaint in the trial court against the present petitioner/defendant claiming that the present respondents/plaintiffs being legal heirs of Mst. Golo daughter of Doulat Khan are entitled to receive their Shari Share from the legacy of their maternal grandfather namely Doulat Khan situated at Oshikhandas,
4. The present petitioner/defendant resisted the suit by filing written statement in the learned trial court wherein he has raised certain legal objections and has also repudiated the averments made in the plaint by asserting/pleading that the suit land was not legacy of maternal grandfather of the respondents/plaintiffs rather the suit land was owned by Mir Nazim Khan Mir of Hunza and maternal grandfather of the present respondents was tenant of above named Mir of Hunza. Lager on the petitioner/defendant had purchased the suit land from Raja Jamshesi, therefore, the plaintiffs/respondents are not entitled to receive their Shari Share out of the disputed land.
5. Out of divergent pleading of the parties the following issues were framed by the learned trial court:--
1. Whether under Land Revenue Act suit for cancellation of mutation has wrongly been instituted in this court? OPD.
2. Whether the defendant is owner of suit property who purchased the same while the mother of plaintiffs has no right of inheritance on the suit land? OPD.
3. Whether the father of plaintiffs and defendant has not left any estate at the time of his death and land under Khasra' Nos,1000 and 1001 and Khewat No,199 was part of Jagir of Mir Nazim Khan which the defendant has purchased from son of Raja Jamsheed against valuable consideration? OPD.
4. Whether defendant has made improvements on suit property by making on expenditures to the tune of rupees one million? OPD,
5. Whether plaintiffs are entitled to ownership and possession of land, measuring 17 kanals 5 multi from the suit property being the legal heirs of Mst. Gulo daughter of Doulat Khan? OPP.
6. Whether the suit land is legacy of Mr. Doulat Khan and according to law and Sharia the same is divisible between Mst Gulo and defendant at the proportion of 1:2? OPP.
7. Whether the plaintiffs have any cause of action against the defendant? OPP.
8. Whether the suit property was owned by Mr. Doulat Khan ? OPP.
9. Whether the suit is within time? OPP.
10. Whether this court has jurisdiction to entertain the instant suit? OPD.
11. Whether the suit property was purchased by defendant from son of Raja Mir Nazim Khan ? OPD.
12. Whether the suit is liable to be dismissed under Order VII Rule 11, C.P.C.? OPD.
13. Relief.
6. After framing of afore mentioned issues the learned trial court had directed the parties to adduce their respective evidence as they wished to adduce. Accordingly, the parties adduced their respective evidence in the trial court. On conclusion of trial the learned trial court after appraisal of the evidence of both the parties has decreed the suit in favour of the present respondents/plaintiffs vide judgment dated 14-05-2010. Feeling aggrieved by the judgment/decree of the learned trial court the present petitioner had preferred civil first appeal in the court of District Judge Gilgit.
7. The learned District Judge vide the impugned judgment/decree dated 05-09-2012 has dismissed the civil first appeal of the present petitioner by upholding the judgment / decree passed by the learned trial court.
8. It is pertinent to mention here that during pendency of the civil first appeal before 1st Appellate Court the present petitioner was expired but legal heirs of present petitioner/. defendant were not impleaded as appellants in the memo of appeal as well as in the judgment passed by the learned 1st appellate Court. Accordingly, the petitioner has filed an application under section 151 read with section 153, C.P.C. for correction/ rectification in the impugned judgment/ decree passed by the learned 1st Appellate Court dated 05-09-2012 by deleting name of Shah Alam petitioner and substituting/ adding his legal heirs in the impugned judgment which has been registered as Civil Miscellaneous Petition No,129/2016. The learned counsel for the petitioner has also filed an application under section 153 read with Order XLI Rule 20, C.P.C. for substituting/adding L. Rs of the present petitioner in the heading of the instant revision petition which shall be disposed of along with this revision petition.
9. The learned counsel appearing on behalf of the petitioner/defendant contended that during pendency of civil first appeal before the learned District Court Gilgit, the petitioner was passed away and accordingly the learned counsel of the petitioner had filed list of L.Rs of the present petitioner/ defendant in the learned 1st Appellate Court in time i,e, on 02-06-2011, but the learned 1st Appellate Court has not inserted/added the names of L.Rs, of present petitioner in the heading of memo of appeal. The learned counsel for the petitioner further argued that the learned 1st Appellate Court has also not reflected/inserted names of the L.Rs, of the present petitioner in the impugned judgment and decree sheet which are required to be corrected by inserting/adding names of the L.Rs, of the petitioner in the impugned judgment and decree sheet passed by the learned 1st Appellate Court. The learned counsel for the petitioner further argued that since the learned 1st Appellate Court has failed to insert/add the names of L.Rs, of the present petitioner in the impugned judgment and decree sheet, therefore, the learned counsel for the petitioner could not mention names of the L.Rs, of the petitioner in the civil revision petition inadvertently which is required to be corrects by inserting/substituting the L.Rs, of the present petitioner in the heading of the instant revision petition, which may be allowed.
10.On the other hand the learned counsel for the respondents/plaintiffs controverted the arguments advanced by the learned counsel for the petitioner by contending that the impugned judgment/ decree was passed by the learned 1st Appellate Court on 05-09-2012 and the instant revision petition was filed in this court on 15-10-2012, but the counsel and attorney of the petitioner kept mum and has filed the afore mentioned applications on 27-5-2016 in this court after lapse of more than 3-1/2 years of the filing of the instant civil revision petition. The learned counsel for the respondents further argued that since the instant revision petition has been filed on behalf of dead person which is illegal, ab-initio void is not maintainable and liable to be dismissed.
11. I have heard the learned counsel for the parties at considerable length and perused the record with their able assistance.
12. From perusal of record it transpires that the present petitioner/defendant namely Shah Alam was expired during pendency of his first appeal before the learned 1st Appellate Court which was brought in the notice of the learned 1st Appellate Court on 09-05-2011 and counsel for the petitioner/ defendant had filed list of L.Rs, of the appellant/ petitioner in the court of District Judge Gilgit on 02-06-2011 as evident from order sheet maintained by the learned 1st Appellate Court. The learned 1st Appellate Court has not asserted/added names of L.Rs of the petitioner/appellant in the heading of memo of appeal/ and has passed the impugned judgment/decree by dismissing appeal of the present petitioner.
13. It is astonishing to observe that the list of L.Rs, of deceased petitioner was filed in the learned 1st Appellate Court by the learned counsel of the present petitioner, counsel and attorney of the petitioner were in knowledge of his death, hence the attorney and counsel for the petitioner should have arrayed/added the legal heirs of the deceased petitioner as petitioners in the revision petition filed in this court which has not been done by them rather this revision petition has been filed on behalf of dead person namely Shah Alam.
14. Even after filing of revision petition in this court the learned counsel for the petitioner did not bother to bring legal heirs of the deceased petitioner on record and kept mum/silent till 27-05- 2016, whereas the instant revision petition was filed in this court on 15-10-2012.
15. It would not be incongruous to mention here that on 27-05-2016, the learned counsel for the petitioner has filed an application under section 153 read with Order XLI, Rule 20, C.P.C. for impleading of legal heirs of deceased petitioner as petitioners in the revision petition on the ground that the learned 1st Appellate Court has not mentioned names of L.Rs, of the deceased petitioner in the impugned judgment and in decree sheet, therefore, he could not implead the L.Rs, of decreed petitioner in this revision petition. But I do not agree with this contention of the learned counsel for the petitioner that the learned counsel for the petitioner cannot take such plea in view of the fact that the counsel and attorney to the petitioner had effectively been participating in the proceeding before the learned 1st Appellate Court as well as before this court. The afore said petition under section 153 read with Order XLI, Rule 20, C.P.C. has been filed in this court after about lapse of .three years and six months of the filing of the instant revision petition. Even the attorney of the petitioner has not bothered to file an application for condonation of delay in impleading the legal representatives of the petitioner. Omission to implead such necessary party renders this revision incompetent and application made after limitation had run was found to be fatal. In this connection reliance can be placed on the following reported judgment of superior courts:--
(1) 2011 GBLR 299
(2) 2001 M LD 1964
(3) PLD 1982 SC 46.
(4) 1990 M LD 1874.
16. From perusal of record it transpires that for the first time an application for impleading/adding of L.Rs, of the deceased Shah Alam petitioner was submitted in this court on 27-05-2016 which was registered as C.M. No,128/2016. This application is, therefore, barred by (three) 3 years six months reckoned from 15-10-2012 i,e, from filing of this revision petition. Thus I am of the considered view that this revision petition has been filed on behalf of dead person which fact was within the knowledge of the attorney and counsel for the petitioner, hence the C.M. No,128/2016 and C. M. No, 129/ 2016 as well as this revision petition filed on behalf of petitioner are not maintainable.
17. Even otherwise both learned courts below have rightly recorded concurrent judgments/findings in favour of in favour of the present respondents/defendants after proper appraisal of evidence produced by the parties. I find no irregularity or illegality in the impugned judgment/decree passed by the learned 1st appellate court and no case for interference stands made out.
18. As a result of above discussion, this revision petition as well as C. Misc. Petition No,128/2016 and C. Misc. Petition No,129/2016 being bereft of merit are hereby dismissed leaving the parties to bear their own costs.
19. Civil Revision Petition No,59 of 2012 filed by the present respondents has become infructuous which is also dismissed being infructuous. File