' The revision petitions entitled above are being disposed of by this single order as they arise out of the same order of the District Judge, Muzaffarabad and involve common questions of facts and law for decision.
2. The brief facts giving rise to the above applications for revision are that the petitioners in Petition No. 80 of 1985 filed in a suit on 27-3-1979 in the Court of Additional Sub-Judge, Muzaffarabad against the respondents for a declaration to the effect that their adverse possession on the land measuring 21 Kanals 141 Marlas out of Khewat No. 22 and Khatas Nos. 66 to 68, measuring 43 Kanals and 9 Marlas situate in village Nakka Shakerpattian, Tehsil and District Muzaffarabad had matured into ownership and as a consequential relief also prayed for the grant of perpetual injunction restraining the respondents from interfering in their possession over the suit land or alienating the same. On the same day, the petitioners in Revision Petition No. 81 of 1985 also filed a suit for declaration and perpetual injunction against the respondents in the said petition in which the declaration was sought that their adverse possession on the land measuring 63 Kanals 11 Marlas comprising Khewats Nos. 20 and 21 had ripened into ownership and as a consequential relief the permanent injunction restraining the respondents from interfering in any way in their possession of the suit land or transferring the same to anybody else by way of sale or mortgage, was also prayed for.
3. The respondents in each of the above petitions also filed counter-suit against the petitioners. The petitioners in Revision Petition No. 38 of 1984 who are respondents in Revision Petition No. 81 of 1985, filed a suit for possession against the respondents who are petitioners in Revision Petition No. 81 of 1985, in the Court of Additional Sub-Judge, Muzaffarabad on 10-2-1981 in respect of the land measuring 63 Kanals and 11 Marlas out of Khewats Nos. 20/20 and 21/21, situate in village Nakka Shakerpattian, Tehsil and District Muzaffarabad while on the same day, the petitioners in Revision Petition No. 39 of 1984, who are respondents in Revision Petition No. 80 of 1985, filed a suit for possession against the respondents, who are petitioners in Revision Petition No. 80 of 1985, in the said Court in respect of the land measuring 21 Kanals 141 Marlas out of Khewat No. 22 and Khatas Nos. 66 to 68, situate in the same village.
4. All the above cases were consolidated by the Additional Sub-Judge, Muzaffarabad for the purpose of hearing and commenced proceedings only in the one filed by the petitioners in Revision Petition No. 80 of 1985 and other cases were ordered to be put up alongwith the same (hereinafter the petitioners in Revision Petitions Nos. 80 and 81 of 1985 but respondents in Revision Petitions Nos.
38 and 39 of 1984 to be referred as petitioners and petitioners in Revision Petitions Nos. 38 and 39 but respondents in Revision Petitions Nos. 80 and 81 of 1985 to be referred as respondents).
5. The respondents in their written statements filed in the suits instituted by the petitioners took up the plea that Rahim Ullah and Mst. Gulshan Bibi, defendants in the above suits were already dead at the time of the institution of the same while Mst. Shah Jehan Begum had died in the year, 1979 after their institution and accordingly prayed for the dismissal of the suits of the petitioners on the ground that the same had been instituted also against two dead persons while the legal representatives of one deceased respondent were not impleaded as parties to them within the period of limitation.
6. On the above objections being raised, the petitioners on 25-3-1981 put in an application in each of the suits filed by them for bringing on record the legal representatives of Mst. Gulshan Bibi and Mst. Shah Jehan Begum, deceased-defendants on the ground that they had come to know about their death only on 12-2-1981 as they were living far away from them in Pakistan at Ghari Habibullah Khan of District Hazara. On 17-5-1983, the petitioners made another application in each of their case praying therein for the striking off the names of all the above deceased-defendants on the ground that their legal representatives were already on the record. The above applications were resisted by the respondents by way of filing written objections on the ground that the deceased- defendants were not alive at the time of the institution of the suits by the petitioners and the prayer for their dismissal was made on that score. The petitioners then filed another application, on 6-5- 1984, before the trial Court for permission to withdraw their suits with liberty to institute fresh suits on the ground that the same suffered from formal defect of dead persons having been made parties to them. The respondents contested the above applications. The learned trial Court vide his order, dated 31-5-1984, disallowed the above applications for permission to withdraw the suits and also dismissed the suits of the petitioners to the extent of Rahim Ullah and Mst. Shah Jehan Begum, deceased-defendants and declared the same to have also abated against deceased-defendant, Mst. Gulshan Bibi.
7. Feeling aggrieved by the above order of the trial Court, the same has been challenged in the above revision petitions.
8. I have heard the learned counsel for the parties and have also gone through the record of the cases. It is contended by Mr. Nazir Ahmad Khan, Advocate, counsel for the petitioners that the learned trial Judge has erred in disallowing petitioners' applications for permission to withdraw their suits with liberty to institute fresh suits as well as dismissing their suits to the extent of the deceased-defendants. In elaboration of his above contention, it is contended by him that the suits of the petitioners suffered from only formal defect of having been also brought against dead persons and as such the trial Court should have permitted them to withdraw the same with liberty to institute fresh suits and that in any case, the same could not be dismissed to the extent of the deceased-defendants as an application for impleading their legal representatives had been filed before the trial Court but without deciding the same, the above order of dismissal of the suits was passed while disposing of their other unconnected applications for grant of permission to withdraw their suits. It is further contended by him that in the facts and circumstances of the case, the legal representatives of the deceased-defendants should have been brought on record by the trial Court.
9. On the other hand, it has been contended by the learned counsel for the respondents that since the petitioners had also filed suits against two dead persons and had also failed to apply in time for bringing on record the legal representatives of one deceased-defendants, their suits ought to have been dismissed in toto and not only to the extent of the deceased-defendants as in their absence the same could not be continued because of the suit land in them being joint and indivisible.
10. I have given my due consideration to the above arguments of the learned counsel for the parties in the light of the facts and circumstances of the cases after which I am of the opinion that the order under revision is neither wholly correct nor wholly incorrect but is only partially legal and partially unlawful. In my view, it is perfectly lawful and correct so far it relates to the dismissal of the applications of the petitioners for permission to withdraw their suits but its remaining part dismissing the suits of the petitioners to the extent of the two defendants who were dead when the same were instituted and declaring it to have abated against the third deceased-defendant whose legal representatives were not substituted within the period of limitation, is illegal and consequently unmaintainable. It is admitted by the learned counsel for the parties and is also established from the record of the cases that Rahim Ullah and Mst. Gulshan Bibi, defendants in the suits of the petitioners had died before, while Mst. Shah Jehan Begum after the institution of the suits by the petitioners against the respondents. Thus, as regards the suits of the petitioners against the above-named dead persons, the same were the nullity in the eyes of law and could not be deemed to have been legally instituted. Similarly the legal representatives of Mst. Shah Jehan Begum, deceased defendant were not impleaded within the period of limitation for which reason the suits of the petitioners against her had abated and thus the only remedy available to them in this respect was to have got the said A abatement set aside by the trial Court.
11. In the above circumstances, when two out of many defendants in the suits of the petitioners were dead at the time of filing the same and the legal representatives of one of defendants who had died during their pendency were not impleaded in time, the permission to the petitioners to withdraw their suits with liberty to bring fresh suit, could not be granted as the same cannot be said to be suffering from any formal defect nor there was any other sufficient cause for exercising discretion in favour of granting permission to withdraw them. Therefore, the trial Court was perfectly justified in not acceding to the request of the petitioners to permit them to withdraw their suits with liberty to institute fresh suits and dismissing thei application for the purpose. For the above reasons, the impugned order of the trial Court to the extent of rejecting the applications ofi the petitioners for the grant of permission to withdraw their suits, does not suffer from any illegality or material irregularity requiring rectification in revision but so far it dismissed the suits of the petitioners to the extent of the deceased-defendants who were dead at the time of their institution and declared the same to have abated to the extent of the deceased-defendant whose legal representatives were not brought on record within the time limited by law, it cannot be defended on any ground and is illegal and unsustainable. As said earlier, there were large number of defendants in the suits of the petitioners out of whom two were not alive at the time, the same were instituted but their shares in the suit land in each of the above suits were distinct and specific according to the entries in the Revenue record and in view of the nature of the suits of the petitioners which were for declaration to the effect that their adverse possession on the suit land had ripened into ownership, the non-joinder of the legal representatives of the dead persons in them, did not entail their dismissal as the same could proceed without their being parties to them.
The petitioners were not debarred from filing separate suits against the heirs of the deceased- respondents who were dead before the filing of the suits by the petitioners against the respondents merely on account of their having not been made parties to the said suits.
12. Since the persons who were dead at the time the institution of the suits of the petitioners, were not the only defendants in the said suits but there were numerous other defendants as well, the provisions of Order I, Rule 10(2), C.P.C. Were fully attracted in the cases which are intended to be made use of by the Courts in such like circumstances and situation as existed in the cases of the parties before the trial Court whose order is impugned in these revisions petitions. The above provisions of law enables the civil Court to strike out the name of any party to the suit who is improperly joined as such or add the name of any person either as plaintiff or defendant in it who ought to have been joined as such or whose presence may be necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. In the cases of the parties before the trial Court, the heirs of the dead persons were made defendants in the counter-suits filed by the respondents against the petitioners and the suits of both the parties were consolidated for the purpose of trial. Thus, the legal representatives of the dead persons were at least proper parties in the suit of the petitioners as in case of their being parties to the above suits, it would have enabled the trial Court to effectually and completely adjudicate upon and settle all the questions involved in the said suits of the parties filed by them against each other thereby avoiding the needless multiplicity of the suits. In the above view of the matter, the right and proper course to be adopted by the trial Court was to have pressed into service the provisions of Order I, Rule 10(2), C.P.C., and struck off the names of Rahim Ullah and Mst. Gulshan Bibi, from the suits of the petitioners as they were improperly joined as defendants in them despite their being dead at the time of filing the said suits and instead added the names of their legal representatives as defendants in them. But instead of doing so, the trial Court dismissed the suits of the petitioners against the above-named deceased-defendants and thereby committed, if not an illegality, a material irregularity which needs rectification by this Court in exercise of its revisional powers.
13. Similarly, the order of the Court below under revision is also not justified to the extent it had made a declaration about the suits of the petitioners having abated against Mst. Gulshan Bibi, deceased-defendant (here the name of Mst. Gulshan Bibi is wrongly mentioned and the lower Court in fact meant Shah Jehan Begum, deceased-defendant). Mst. Shah Jehan Begum, deceased-defendant is admittedly to have died during the pendency of the cases of the petitioners before the trial Court. The petitioners have made an application on 25-3-1981 before the trial Court in which it was specifically mentioned that the petitioners had no knowledge of her death as she and other respondents lived far away from them in Ghari Habibullah Khan of Hazara District of Pakistan. In view of the above ground taken by them for not bringing on record in time the legal representatives of the said deceased-defendant, the trial Court ought to have exercised its discretion in favour of treating the aforesaid application of the petitioners as an application for setting aside the abatement of their suits that had taken place to the extent of the deceased- defendant under discussion and decided the same on merits after giving opportunity to the parties to lead their evidence in support and rebuttal of the same. But instead of adopting the above course which was proper and right one in the circumstances of the cases, the trial Court while deciding the application of the petitioners for granting permission to them to withdraw their suits, declared the suits of the petitioners having abated against Mst. Gulshan Bibi, deceased-defendant (by which it meant Mst. Shah Jehan Begum, deceased-defendant) by reasons of non-impleading of her legal representatives within the period of limitation. The trial Court after rejecting the above application of the petitioners for allowing them to withdraw their suits with liberty to bring new suits was legally bound to take up their application for substituting the legal representatives of the deceased-defendants and decide it on its merits in accordance with law but it failed to do so and passed the above impugned order without deciding the above application.
14. The sum total of the above discussion is that that part of the' impugned order of the Additional Sub-Judge, Muzaffarabad by which the application of the petitioners for permission to withdraw their suits was dismissed is lawful but it is illegal and unsustainable to the extent it dismissed the suits of the petitioners against Rahim Ullah and Mst. Gulshan Bibi, deceased-defendants and also declares their (petitioners) suits to have abated against Mst. Shah Jehan Begum, deceased- respondent.
15. For the foregoing reasons, partially accepting the Revision Petitions Nos. 80 and 81 of 1985, the order of the Additional Sub-Judge, Muzaffarabad, dated 31-5-1984 is set aside except to the extent it dismisses the applications of the petitioners for permitting them to withdraw their suits with liberty to institute new suits. The trial Court is directed to strike off the names of Rahim Ullah and Mst. Gulshan Bibi, deceased-defendants from amongst the array of defendants from the respective suits of the petitioners and to add the names of their legal representatives as defendants in the said suits and also to treat the applications of the petitioners filed by them on 25-3-1981 before the trial Court in their suits for impleading the legal representatives of the deceased-defendants as an applications for setting aside the abatement that had taken place against Mst. Shah Jehan Begum, deceased-defendant and decide the same on merits in accordance with law in the light of the observations made in this order.
16. In the circumstances of the case, the parties are left to bear their own costs.