MUHAMMAD NAEEM ANWAR, J. This civil revision under section 115 of the Code of Civil Procedure, 1908 (C.P.C) has been directed against judgment & decree dated 01.07.2006 of the learned District Judge/Zila Qazi, Malakand at Batkhela, whereby the petitioners' appeal against judgment & decree dated 30.11.2005 of the learned Senior Civil Judge, Malakand at Batkhela dismissing their suit, was dismissed.
C.Ms No.647-M/2022 & 663-M/2022 Through instant Civil Miscellaneous No.647-M/2022, the petitioners seek amendment of the plaint with contention that the disputed property is situated in moza totai, District Malakand and the original owners of the revenue state of totai belong to main tribe (qoam senzi), which was further divided into two sub-tribes namely quam toghal khel and kota khel, each consists of three kandy and the proprietary rights pertaining to the shamilat property being based upon hasbi rasad-e-khawit (pimana e haqiat) of the original owners of moza totai was 126 shaly or mutai. The owners of the revenue estate were known as muti shmar, wherefrom the petitioners belong to kandy butikhel, which is one of the sub-tribes of toghal khel and as such they were the owners of the property to the extent of 21 shaly/mutai, whereas through Civil Miscellaneous No.663-M/2022, the applicants seek to be impleaded in the array of defendants in the main suit on the ground that they are co- owners in the suit property and their direct interest is involved in the matter.
2. Learned counsel for the petitioners contended that amongst all the six tribes namely Kandy Nazo Khan, Kandy Buti Khel, Kandy Shah Khan, Kandy Aziz Khel, Kandy Ahmad Khel and Kandy Dawlat khel, a private settlement had taken placed, on the basis of which, Banda Naranji was given to Kandy Butikhel i.e., the petitioners and they are representatives of the original owners (As1 Malikan) of kandy butikhel; that the respondents belong to Miangan and they were neither muti shmar of moza totai nor have got any interest in shamilat, thus, their interference in the disputed property is in effective upon rights of the petitioners (kandy buti khel), the sub-tribe of toghal khel from the original quom known as Senzi. He further contended that notwithstanding the particular fact regarding the private partition, as alleged by the plaintiffs, the rest of the tribes and for that matter sub-tribes were not arrayed either in the array of plaintiffs or the defendants. He added that though the contesting respondents/ defendants have taken this plea that suit of the plaintiffs was bad for misjoinder and non-joinder of the necessary parties but the plaintiffs and their counsel have not adverted to this legal aspect of the case inadvertently and which is one of the grounds, on which the petitioners were non-suited. He added that, in fact, the petitioners were required to array all the owners of the original qoam senzi i.e., sub-tribes six in number as a party to the suit for the reason that a particular Banda known as Banda Naranji was given to the petitioners whereas rest of the properties were divided amongst the rest of the tribes, thus, in case if the plaintiffs have not been able to prove their contention to the extent of private partition then ultimately they are entitled to get their legal shares in the entire 126 shaly and in such an eventuality, there are two options for the plaintiffs either to seek partition of their respective shares by arraying all the owners before the Court but for that matter too, the entire properties were required to be placed before the Court and secondly, they shall be the joint owners with rest of the tribes of qoam Senzi. He also added that the application (C.M No.663-M/2022) has been filed by womenfolk, as such they are entitled to be arrayed as a party by submitting that the requisite amendment would neither change the complexion of the suit nor would adversely affect the rights of the respondents/ defendants and that each and every owner of the property is legally required to be arrayed as a party, therefore, in consonance with the provision of Order I Rule 9 & 10 read with Order VI Rule 17 C.P.C, the petitioners are entitled for the proposed amendment in the plaint. In support of his submissions, he placed reliance on the cases of "Amir Zada through LRs and others vs. Haji Ahmad Noor and others" (2016 CLC 1628, Peshawar), "Dilshad Ali and others Vs. Ahmad Khan and another" (2007 CLC 441), "Atta-ur-Rehman and others Vs. Abdur Rashid and others" (2016 MLD 533, Peshawar), "Muhammad Essa Khan through L.Rs Vs. Muhammad Afzal Khan through L.Rs. and 10 others" (2021 YLR 1766, Gilgit Baltistan Chief Court), "Mst. Ghulam Bibi and others Vs. Sarsa Khan and others" (PLD 1985 Supreme Court 345), "Muhammad Abdullah Khan Niazi Vs. Rais Abdul Ghafoor and others" (PLD 2003 Supreme Court 379) and an unreported judgment dated 18.01.2021 rendered by the apex Court in case titled "Fazal Subhan and others Vs. Mst. Rekhmina Zadgai and others" (Civil Appeal No.808 of 2017).
3. Learned counsel for the applicants in C.M No.663-M/2022 contended that they are owners in the property but were not arrayed as party in the suit either in the panel of the plaintiffs or defendants, whereas the plaintiffs have taken a plea to the extent of 21 shaly/mutai in Banda Naranji and thus legally the applicants were required to be arrayed as a party and besides, referring the preliminary objection of defendants regarding incompetency of suit for want of necessary parties, he added that findings on issue No.6 of both the learned Courts below reflect the applicants' submissions. He also added that being owners in the suit property, the applicants are necessary party in the case and in whose absence, neither any effective decree could be passed not the Court would be able to reach to the just conclusion, more-so, the rights of applicants would also be adversely affected. In support of his submissions, he placed reliance on the cases of "Suleman and others Vs. Pir Bakht Shah and others" (2012 CLC 1457, Baluchistan), "Shaukat Ali Vs. Liaqat Ali and another" (NLR 1995 AC 708) "Al-Haqani Securities and Investment Corporation (PVT.) LTD. and another Vs. National Clearing Company of Pakistan LTD and 02 others" (PLD 2009 Karachi 227), "Mst. Parveen Akhtar and another vs. Syed Wasey Agha and 02 others" (2011 YLR 1999, Quetta), and "Messrs Pakland Cement Limited Vs. Messrs American Express Bank N.A. and another" (2006 CLC 86).
4. Conversely, Mr. Sher Muhammad Khan, Advocate representing the respondents/defendants contended that from this very particular disputed property, a portion was acquired by the government and regarding the compensation, a dispute arose between the petitioners and respondents and the petitioners entered into a compromise with respondents and half of the share was given to the defendants, therefore, the status of the respondents have been acceded to by the petitioners as owners in the property, thus, they cannot approbate and reprobate in the same breath. He further added that the defendants have taken this plea from the very first when they put their appearance before the learned trial Court somewhere 30 years ago, but even then, the plaintiffs have not bothered to cure the defect in the suit. He added that what to say about non-impleading of the rest of the co-owners they were not even produced even as witness, therefore, at this stage, the petitioners cannot be held entitled for amendment in the pleadings. In support of his submissions, he placed reliance on the cases of "Noor Elahi Vs. Mian Muhammad Nawaz Sharif and others" (PLD 2008 Lahore 421), "Mian Muhammad Ali Shah Vs. Sangeen Shah and others" (2012 CLC 709), "T. Andrews Vs. The Federation of Pakistan through the General manager, North Western Railway, Lahore" (PLD 1953, Lahore 266) and PLD 1964 Decca 1106.
5. Arguments heard and record perused.
6. Record reflects that the suit was filed by the petitioners in representative capacity in the year 1995, wherein a declaration was sought to the effect that the property consisting of mountain, forest, barren property, trees, ghwaraskay and grass etc, is the ownership of plaintiffs on the strength of private settlement amongst all the six tribes of Senzi Qoam and that the defendants being miangan are seri khors have got no concern whatsoever with it, thus, their claim of proprietorship in the disputed property is ineffective upon their rights and if any alienation has been made by them is inoperative upon their rights. Decree for perpetual injunction was also sought qua a decree for recovery of possession. It was also alleged in the plaint that the disputed property alongwith other properties were ownership of original owners of moza totai, which belongs to the qoam senzi, which was further divided into two khels namely kota khel and toghal khel. Similarly, each sub- tribe was consisting upon three kandy, the detail in respect of qoam with pimana hasb-e-rasad-e-Khawit /unit of shamilat, division of main tribe into sub-tribe, with respect to share of each tribe and specification of the particular area is described as under, for convenience.
Main tribeTotal proprietary rightsSub tribe Kandy Daftari ownership/ Pimana HaqiatBanda Qoam senzai126 shaly/ mutai1.Toghal khelKandy Nazo khan21 shalay/mutaiBanda Aspur Kandy Buti khel21 shalay/mutaiBanda Naranji Kandy shah khan21 shalay/mutaiBanda Daga/Salai Patay 2.Kota khel Kandy Aziz khel21 shalay/mutaiBanda Wach tangay/salai patay Kandy Ahmad khel21 shalay/mutaiBanda Dherai Kandy Dawlat khel21 shalay/mutaiBanda Kicho/ Badama
7. It is not disputed that these facts were categorically mentioned by the plaintiffs with a particular reference of private partition/settlement amongst the sub-tribes of qaom senzi, such as each of the sub-tribe was given 21 shaly with reference to the particularized property known as Banda Aspur, Banda Naranji Banda Daga/Salai Patay, Banda Wach tangay/salai patay, Banda Dherai and Banda kicho/Badama, and Banda Naranji was given or was held to be ownership of plaintiffs. It was also mentioned in the plaint that defendants are not original owners rather they are malikan-e-qabza to the extent of their serai property known as bapetao and saya. It is pertinent to mention here that in such an eventuality when sub-tribe of qoam senzi was claiming private partition to the extent of Banda Naranji then they were required to array all tribes as mentioned in the schedule in the array of the defendants or plaintiffs, but for the reason best known to plaintiffs or their learned counsel they could not do so.
8. Furthermore, the claim of the plaintiffs to the extent of Kandy Butikhel being based upon private settlement, and in such an eventuality not only all the owners were required to be impleaded but all the property should be mentioned in the plaint that to whom which portion of the property was given/handed over. Legally, partition of property means to bring proceeding in the Court to force the physical division of property or to get separate the shares of any joint owner from the joint property. Partition is normally commenced by one of the co- owners, filing an application before the Court of competent jurisdiction by impleading all the joint owners. Any person with an existing interest in the property may bring the action for partition and vice-versa against whom the partition is sought. By not impleading petitioner in partition application, irrespective of his share, would render the entire process in nullity. In case of the decree in favour of plaintiffs the rights of rest of the owners would be affected and that too without impleading them as party to the suit. There is no cavil with the proposition that when one claims to be the owner on the basis of private settlement of a particular piece of land then other properties to the rest of the owners on the strength of the private partition, as alleged by the plaintiffs, are also required to be put in same pool, for proper determination of the rights, with respect to the owners for the simple reason that till the private partition is proved or admitted every co-sharer is the owner in every inch of the property and possession of one co-owner shall be deemed to be the possession of all co- owners, is the basic principle of law as enunciated in case titled "Ali Gohar Khan vs. Sher Ayaz & others"
(1989 SCMR 130), wherein it was held:- "It is a settled principle of law that in case of joint immovable property each co-sharer is interested in every inch of the subject-matter irrespective of the quantity of his interest".
9. Adverting to the contention of learned counsel for the respondents/ defendants that in earlier round of litigation in respect of the suit property a compromise was affected. No doubt, in earlier round of litigation to the extent of an acquisition for the purpose of construction of a road known as Bajaur road passing through from the disputed property, a dispute was settled through settlement between the plaintiffs and defendants, but the factum of said settlement cannot be termed as an estoppel against the plaintiffs. The term estoppel has been defined as the doctrine of law precludes a person from denying the truth of a statement formally made by him, as defined by jurist Osborn. In accordance with the provision of Order I Rules 9 & 10 C.P.C, non-joinder and min-joinder did not defeat the suit and the Court may in every suit deal with the matter in the controversy so far as regard the right and interest of the parties actually before it. Likewise, in a particular case, an application for correction of miss-description of the defendants in the plaint can also be allowed as a misjoinder or non-joinder is not fatal to the suit. Reference may be made to 1979 I.L.R 04 Calcutta 949. A party can also be impleaded when the relief prayed for in the proceedings is sought to be made binding on him or when it is felt that he would be adversely affected by the ultimate outcome of the proceedings.
10. Moreover, undeniably prior to the instant round of litigation, the matter was remanded to the learned Appellate Court and thereafter to the learned trial Court and the /is is pending adjudication between the parties since 1995, but the plaintiffs have lost sight of this particular fact and today the petitioners are before this Court when they are litigating for more than 25 years but delay alone in applying for amendment cannot be held to refuse amendment in the plaint. Similarly, in consonance with the provision of Order VI Rule 17 amendment can be allowed at any stage of proceedings and the word "proceeding" is to be given liberal interpretation as held by the apex Court in the case of "Mst. Ghulam Bibi and others Vs. Sarsa Khan and others" (PLD 1985 Supreme Court 345). Thus, the arguments of learned counsel for the respondents that they are before the Court since 1995 and now the petitioners are seeking amendment by arraying all the tribes and placing rest of the parties before the Court besides the disputed one, have got no force at all because this cannot be a ground for refusal of amendment. It is established law that Courts are required to decide the lis between the parties once for all on the basis of merits rather than to dispose it of on technical grounds.
Reliance may be placed on the case of "Syeda Tahira Begum and another Vs. Sved Akram Ali and another" (2003 SCMR 29), wherein the apex Court has held that: "Cases of parties should be decided on merits--If a party upon evidence brought on record has established his case on merits, then such party should not be knocked out on technical grounds-- Rules and procedures are framed to foster the cause of justice and should sparingly come into the way for dispensation of the same on merits."
11. It is well settled law that in the suit either for partition or based upon alleged private partition not only all the parties all the owners are necessary party but the entire joint properties must be made subject of the suit so that it should lead to its logical conclusion. Thus, without going into rest of the controversy as to whether the defendants are original owners or not and as to whether they are seri khor or qabza malikan because these are the facts, which would be decided after proper amendment in the plaint, within the purview of the proposed relief, in juxtaposition with the addition of all the tribes, in representative capacity within the meaning of Order I Rule 8 C.P.C. because this amendment is requisite for proper determination of real question in controversy. Order VI Rule 17 C.P.C reads as: "17. Amendment of Pleadings: --The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
12. The provision enumerates that a Court may allow either party at any stage of the proceedings to alter or amend his pleadings, if it considers necessary for the purpose of determining the real question of controversy between the parties. The said provision provides mandatory guidelines upon the Court to allow only such amendments which are necessary for determination of real controversy between the parties to the suit. In this provision, the Court has also given the discretion to impose conditions, i.e., in the form of cost or any other condition, while allowing the amendments in the pleadings. Thus, keeping in view the long 27 years of litigation since the institution of the suit, in juxtaposition with the nature of suit i.e., the disputed property consisting upon 126 shaly allegedly owned by senzi qoam and was divided into six tribes in equal shares, the defendants are entitled to be compensated as they remained before the Court for the last 27 years to protect their interest by facing the long period of litigation, hence, the application is allowed subject to the cost of Rs.50,000/ which shall be paid by petitioners/plaintiffs to the defendants on the first date of hearing before the learned trial Court.
13. In accordance with the procedural law, whenever an amendment is allowed, the amended plaint is filed, thus, the plaintiffs shall file amendment plaint by arraying all the tribes including the applicants of C.M No.663- M/2022 in the penal of the defendants. The parties are directed to appear before the learned trial Court on 18.04.2022, where the plaintiffs shall submit the amended plaint and thereafter the matter shall be proceeded and decided by the learned trial Court in accordance with law.
14. As the applications for amendment and impleading the owners has already been allowed in the above terms, therefore, the impugned judgments and decrees of the learned Courts below are hereby set aside.
15. Insofar as C.O.C No.45-M/2019 filed in the instant petition is concerned, it has been filed by the applicant with reference to the alleged violation of order dated 09.11.2008, however, keeping in view the above order in C.M No.667-M/2022, instant application is hereby dismissed being not pressed as the petitioners/plaintiffs shall seek their appropriate remedy in accordance with law from learned trial Court in consonance with the procedural law and not under the provisions of the contempt of Court Ordinance 2003.