FAZAL SUBHAN, J. This civil revision petition is filed under section 115 of C.P.C. by the petitioners against the judgment and decree dated: 08.07.2009 passed by the learned District Judge, Mansehra vide which though Civil Appeal No. 75/13 filed by the respondent No. 1 against the judgment and decree dated: 27.11.2006 in suit No. 496/1 was dismissed but directed the petitioners and proforma respondents not to exclusively occupy the suit land.
2. Concise facts of the case as narrated in the instant revision petition are that one Ijaz Akhtar Khan being hissadar owner in suit khasra No. 2867 measuring 11 kanals 3 marlas (suit property) filed a suit against respondent No.1 seeking therein declaration, permanent injunctions and possession by way of removing building material from the suit property. Respondent No. 1 contested the suit by filing written statement, and after framing of issues and recording of evidence, the learned trial Court decreed the suit in favor of plaintiff therein vide judgment dated: 28.04.2000. An appeal was filed against the said judgment, which was accepted and case was remanded back for impleadment of other owners. The said judgment was challenged before this Court by filing civil revision, where judgment and decree of learned appellate Court was modified by allowing the petitioners to file the suit in representative capacity. Plaintiff therein then filed amended plaint, where-after, respondent No.1 filed written statement. The learned trial Court vide its judgment dated: 27.11.2006 granted decree in favor of petitioners, which is challenged through appeal by the respondent No.1, which was dismissed vide judgment dated: 08.07.2009, however, in para No. 20 of the said judgment, the learned appellate Court concluded as following: Before parting with this judgment I deem it proper to add that suit land is neither plaintiff and proforma defendants nor anyone else being co-owner in the suit land will occupying the suit land without exclusively, nor will appropriate it for his own benefit and without express consent and permission of other co-owners which is owned by large number of people including old, minor and women, therefore, neither plaintiff & proforma defendants nor anyone else being co-owner in the suit land will occupying the suit land without exclusively, nor will appropriate it for his own benefit and without express consent and permission of other co-owners.
The petitioners being only aggrieved from the above directions filed this civil revision petition.
3. Arguments heard and record perused.
4. Record reveals that Muhammad Ijaz Akhtar Khan instituted a suit for declaration, permanent injunction and possession in respect of the suit property, and during evidence Patwari Halqa brought revenue record fard jumabandi for the year 1969-70 Ex PW-1/1 and list of owners of Shamilat Deh Ex PW-1/2 consisting of 10 sheets. Admittedly, the suit property is Shamilat Deh and during cross examination Aurangzeb Jehangiri, attorney for petitioners admitted that the number of owners are 500/600 persons. Though, the trial Court granted decree in favor of petitioner, but appeal against the judgment was allowed with directions to add all the owners. A civil revision against the judgment passed in appeal was allowed, allowing petitioner to file representative suit which was subsequently decreed but in appeal the appellate Court passed the above order, which is now impugned through this civil revision:
5. Order I, Rule 8 of C.P.C., has prescribed procedure for filing representative suit, which reads as following: One person may sue or defend on behalf of all in same interest---(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or far the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
6. The said rule requires compliance of certain conditions to be fulfilled before filing suit under Order I, Rule 8, C.P.C., which includes firstly that there must be numerous persons, secondly, the said persons must have the same interest and thirdly, that permission for filing such suit is obtained from the Court. In addition to the above, as the Court has to serve notice of filing of such suit on behalf of all the persons having interest in the suit, therefore, plaintiff shall file complete list of the co-owners interested in the property. Such notice is either to be served personally or by publication through advertisement and that too at plaintiff's expense. In the present case, though petitioners were granted permission for filing representative suit but list of all the persons having interest in the suit property, was not furnished and therefore, no notice was issued to them hence, the basic condition for filing suit in representative capacity was not complied. Record shows that some of the co-owners of Shamilat were impleaded and in that case, the appellate Court being vigilant, has passed order as mentioned in para No. 20 of the impugned judgment. Para 5 of the amended plaint seems to be aimed to oust all other co-owners of Shamilat and therefore, to protect the valuable rights of all the other co-owners, the learned appellate Court while dismissing the appeal of the respondent No.1 has added para 20 therein, which in no way damage the rights of petitioners rather the right to use or for deriving benefit of the suit land it was made conditional to get the express consent and permission of other co-owners. In this respect, reliance can also be placed on the case titled: Muhammad Azam and 2 others v. Muhammad Hussain and 2 others reported in 2014 MLD 1155, wherein, it was held that: After hearing the arguments, I have gone through the record and the precedent referred carefully.
It is an admitted fact that the disputed land is Shamilat Deh about which the civil Courts have limited jurisdiction and cannot grant permanent injunction against all the shareholders who possess the land in the estate as well. It has been held in the precedent 2009 SCMR 158 that unless the Shamlat Deh land was partitioned by metes and bounds by revenue authorities, no specific share can be declared to be in possession of any land owner. In the said case of the precedent the Hon'ble apex Court of Azad Jammu and Kashmir modified the decree in favor of the party in possession.
7. This being the situation, it is held that the impugned condition added to the judgment dated: 08.07.2009, passed by learned District Judge Mansehra, is neither illegal nor without jurisdiction and therefore, cannot be disturbed, hence, this civil revision, being without any merits, stands dismissed.