' Briefly put the facts constituting the background of this litigation are that Khalil and Ramzan sons of Imam Din who owned some agricultural land in the village Salimgarh and Manni, Tehsil Hanu- Haan, District Bekanir State, were murdered during communal disturbances in the year 1947, leaving behind three sisters, namely, Mst. Masiyan alias Sarnia, Mst. Noor Elahi and Mst Janat Bibi, who have been arrayed as respondents Nos. 2, 3 and 4, respectively. Respondent No, 1 is collateral of the deceased as bis grandfather and that of the deceased, namely, Farid, were real brothers.
This is substantiated by the pedigree-tables Exhs. D. 2 and D. 3, placed on the file of the learned trial Court.
2. It appears that in the revenue record received from India, the names of the deceased figured in the column of ownership. The Rehabilitation authorities, on 23rd September, 1956 sanctioned mutations Exh. P. 11, P. 12 and P. 13 as to succession to the estate of the two deceased right-holders, in the name of respondent No, 4 alone. Accordingly, on submission of the claim, in repect of land abandoned by them in India, the same was verified and the land in lieu thereof allotted to respondent No, 4 in Districts Bahawalpur and Sheikhupura. This dispute relates to the land allotted to her against Khata No, 969 of RL-II register (Exh. P. 7) of village Bichoki-par known as Tariqabad, Tehsil Nankana Sahib, District Sheikhupura. By means of registered sale-deed dated 29th October, 1962 she sold away this land to the appellant for consideration of Rs, 20,000. The sale was affected through the latter's husband who acted as attorney for the vendor.
3. On 22nd December, 1967 respondents Nos. 1 to 3 filed suit No, 1258 in the Court of the learned Administrative Civil Judge, Bahawalpur, against respondent No, 4 for a declaration that they being the heirs of the deceased right-holders, are successors to their estate and that the mutations aforesaid sanctioned in her favour to their exclusion, are void and ineffective on their right and that they are entitled to their share in the land allotted to her in villages Noshera and Bhinda, District Bahawalpur and village Bichoki-par, District Sheikhupura. They further prayed that any alienation made by respondent No, 4 was not effective on their rights. The latter enterred appearance and admitted their claim, on the basis whereof a consent decree was passed in favour of the plaintiffs/respondents on 13th February, 1968. The appellant was not impleaded as a party to the suit.
4. The suit giving rise to this R. S. A. Was filed by the appellant in the civil Court. At Sheikhupura against respondents for declaration that she is the owner of the land in dispute and that the decree dated 13th February, 1968 passed by the learned Administrative Civil Judge, Bahawalpur was illegal, collusive, fraudulent and ineffective on her rights therein. As a consequential relief she prayed for permanent injunction, restraining respondents from interfering with her possession, on the strength of the said decree and getting the same acted upon in the revenue-record.
5. On evaluation of the evidence led by the parties the learned Civil Judge maintained that respondents Nos. 1 to 3 never challenged the mutations in question which were sanctioned in the name of respondent No, 4, on the ground, that she was the sole-sister of the deceased. The contention of respondents Nos. 1 to 3 that after Partition they and respondent No, 4 settled at different places and met with one another for the first time after 10/12 years, did not prevail with the learned Civil Judge. He held that there was no material on the record to highlight the situation which prevented the respondents from seeking their remedy against respondent No, 4 before the institution of the civil suit. In his opinion the evidence produced by them was not cogent and sufficient to establish their claim. He upheld the sale in favour of the appellant. The fact that she was not a party to the suit, was another factor which influenced the decision of the learned trial Court. Upon his these findings, the learned Civil Judge decreed the suit on 9th September, 1974. This decree was challenged by respondents Nos. 1 to 3 through an appeal. As Mst. Janat Bibi did not join as appellant, she was impleaded as respondent. The learned Additional District Judge who was seized of the appeal, reappraised the oral as well as the documentary evidence considered pedigree-tables Exh. D. 1 and D. 2 and accepted the respondents' contention as to their retationship with the deceased right-holder. Disagreeing with the learned trial Court, he further found that as a result of the Partition of the Sub-Continent, respondents Nos. 1 to 3 lost contact with respondent No, 4, and consequently the claim for agricultural land was verified in the latter's sole-name and the land in lieu thereof allotted to her. He was of the view that under the Muhammadan Law, respondents were entitled to inherit their respective shares in the land allotted to Mst. Jannat Bibi, respondent. He, thus determined the share of respondent No, I as 3/9, being the collateral, and of respondents Nos. 2 to 4 as 2/9, each as sisters of the deceased. As regards the sale in favour of the appellant he held that respondent No, 4 was not competent to alienate more than 2/9th share of the land in question. He also turned down the appellant's plea to that effect that she was bona fide purchaser for valuable consideration. The learned Additional District Judge, thus, accepted the respondent's appeal and declared the sale in favour of the appellant to the extent of 7/9th share of the land as incompetent and void. Resultantly, in this behalf the findings of the learned trial Court on Issues No, I and 2-A were reversed. The decree passed by the learned Civil Judge in favour of the appellant was accordingly, modified and confined only to 2/9th share of the land in dispute. It is under these circumstances that the plaintiff/appellant has come to this Court in second appeal, who having died is now represented by her legal representatives.
6. The only argument put forth on behalf of the appellant is that mutations Exhs. P. 11, P. 12 and P. 13, having been sanctioned by the Rehabilitation authorities, the jurisdiction of the Civil Court to entertain declaratory suit challenging the same directly or indirectly, was ousted under the Rehabilitation Laws. To substantiate his this argument the learned counsel for the appellant, also cited some case law. On the other hand the respondents' learned counsel contended that these mutations were got attested by Mst. Jannat Bibi by fraud and misrepresentation, behind the back of respondents Nos. 1 to 3 who were also lawful heirs of the deceased and thus the orders sanctioning the mutations stood vitiated and being void were liable to be ignored. He, too relied upon some authorities laying down the well-known proposition that fraud vitiates even the most solemn transaction. He, thus, canvassed sustenance of the impugned judgment and decree.
7. I have examined the record and considered the arguments advanced by the learned counsel for the parties. It is to be noticed that the contentions now raised were not urged by both the parties at any stage, before the learned Courts below. It would be neither appropriate to entertain these contentions for the first time at the second appeal stage, nor adjudication thereof is necessary for the decision of the appeal, for, there is another weighty ground in favour of the appellant, to warrant setting aside of the decree dated 13th February, 1968. Obviously, the land in dispute, having been sold away by Mst. Jannat Bibi to the appellant, the former was no longer interested in defending the suit filed by respondents Nos. 1 to 3. The appellant was a necessary party to the suit but she was not impleaded as a party. The stand taken up by the respondents, however, is that they were not aware of the sale, made in her favour. Whatever may be the reasons for not arraying her as a party to the suit, the legal position as to the non-joinder of the appellant, remain unaltered. There is no gainsaying that non-joinder of a necessary party is fatal to the suit. For this ground alone, so far as the land in dispute is concerned, the judgment and decree dated 13th February, 1968 are liable to be set aside and the appellant entitled to the declaration and injunction prayed for by her. The learned Additional District Judge did not advert to this aspect of the case and went into the merits of the case as if he was hearing an appeal against the decree dated 13th February, 1968.
8. Accordingly, this appeal is accepted, the impugned judgment and decree are set aside and the appellant's suit decreed. Consequently, the suit (1258 of 1967) filed by respondents Nos. 1 to 3, in the Court of the learned Administrative Civil Judge, Bahawalpur would be treated as pending and the appellant's legal representatives impleaded as defendants to it. As a result of joinder of the appellant, if some additional ground is to be incorporated in the plaint, that may be done, in accordance with law with the permission of the learned trial Court. As this matter is fairly old, the suit shall be decided on merits expeditiously, preferably by 15th May, 1983. The parties are left to bear their own costs. They shall appear before the learned Senior Civil Judge/Administrative Civil Judge, Bahawalpur on 20th October, 1982.