' A sale of 95 Kanals 16 Marlas of agricultural land situated in village Tattar Chachar, Tehsil Khanpur, District Rahimyar Khan made by one Inayat Hussain through Mutation No, 1054, dated 12-1-1973 in favour of Abdul Qadir was subjected to two pre-emption suits filed respectively by Hayat Muhammad, also described at places as Muhammad Hayat, who is represented by the legal heirs Muhammad Shafi etc., respondents Nos. 8 to 13 herein, and Abdul Ghafoor (represented by his legal heirs Abdul Rashid etc., respondents Nos. 1 to 7 herein). Both the suits were resisted by the vendee Abdul Qadir by denying the rights of the plaintiffs and by also relying upon a consent decree, dated 22-12-1973 passed in favour of his father Muhammad Suleman (the petitioner herein) which gave effect to his assertion that in fact he had purchlised the land through his son Abdul Qadir but he had unscrupulously got the mutation sanctioned in his own name. Muhammad Suleman was also consequently joined as a defendant in both the suits which were consolidated for trial and proceedings were held in the suit of Hayat Muhammad. Necessary issues were settled and parties led their evidence in result whereof, by the judgment, dated 8-2-1986, trial Court dismissed the suit of Hayat Muhammad with the finding that he had not been able to prove his claim of being an owner of the estate but decreed the suit of Abdul Ghafoor.
2. Two appeals were there against filed in the District Court at Rahimyar Khan respectively by the defeated pre-emptors Muhammad Shafi etc. (the legal heirs of Hayat Muhammad) and the defendant Muhammad Suleman who, however, did not implead Abdul Qadir as a party in his appeal, on either side. Both the appeals were heard together by a learned Additional District Judge (Mahar Muhammad Siddique Garwah) and were dismissed by his judgment, dated 18-1-1987 by affirming the findings of the trial Court on all the issues and upholding its decrees upon merits, without noticing the defect with regard to omission of Abdul Qadir from the array of parties. There appears to be a typographical mistake made in the judgment of the learned Additional District Judge with regard to the date of sanction of mutation of sale which he has mentioned as 16-1-1975 instead of 12-1-1973. He has also fallen into errors of description with regard to the consent decree secured by Muhammad Suleman which has been stated by him to have been obtained "against his own father Abdul Qadir vendee" and, again in para. 12, he has mentioned Abdul Qadir to be the father. Actually, Muhammad Suleman is the father and the name of the son is Abdul Qadir. These errors are not material for the purposes of this case because they have not affected its decision on merits but they do point to the need for the learned Judge being more careful in recording his judgments with greater attention.
3. Muhammad Suleman has now come up to this Court in this Second Appeal filed by him against the successful pre-emptors impleaded as respondents Nos. 1 to 7 and the rival pre-emptors as respondents Nos. 8 to 13. Even Abdul Qadir has been joined in this appeal as respondent No, 14 despite the fact that, as mentioned already, he had not been joined in the appeal filed by Muhammad Suleman in the District Court.
In Thakar Hari Ram v. Central Government through Secretary Commerce Department, Delhi AIR 1941 Lah. 120, a necessary party to an action, appeal or other proceeding was defined as the one whose presence on the record is enjoined by law or in whose absence no effective decision can at all be given. It was also laid down therein:-- "It is the duty of the person bringing the action, appeal or proceeding to implead all necessary parties to it and his omission to do so is a fatal defect which if not remedied with the permission of the Court within the period prescribed by law results in its dismissal."
' The above definition of a necessary party was approved in Gul Muhammad and another v. Mir Zaman and another PLD 1954 Lah.
406. To the same effect is also National Bank of Pakistan v. Syed Muzammal Hussain PLD 1965 (W.P.) Kar.
633.
Abdul Qadir being a co-judgment-debtor under the trial Court's decree passed without making any distinction, he was a necessary party required to be joined in the appeal below. No doubt he is a son of the appellant and even if the father and son may have a community of interests in the venture to dislodge the claim of the pre-emptors, still he had to be joined in the appeal of Muhammad Suleman either as his co-appellant or as a respondent but could not be simply left out. In Musmar and another v. Khairullah Khan and others PLD 1954 Pesh. 52, it has been held:-- "Where a decree has been made in favour of several persons C against several defendants without making any distinction whatsoever, the appeal cannot proceed if all the plaintiffs and the defendants are not impleaded in the case as appellants or as respondents." ' and it was concluded that since, for the failure to so implead all the parties, the appeal below was rendered incompetent and should have been dismissed on that ground alone, the judgment of the trial Court would stand intact.
' It cannot be accepted that a litigant may, to his pleasure, leave out of his appeal a necessary party as arrayed in the suit and then rejoin him subsequently to his convenience.
4. Since the trial Court had passed one joint and indivisible decree against both the defendants, in favour of the heirs of the deceased pre-emptor Abdul Ghafoor, on 8-2-1986 and the imperfect appeal there against was filed by the appellant on 12-3-1986 by leaving out Abdul Qadir, therefore, the trial Court's decree had become final and indefeasible as regards him and his being joined improperly in this Second Appeal instituted on 14-2-1987, after more than one year of the trial Court's decree, cannot be of any avail because appellate Court's power to implead parties to an appeal under Order XLI, rule 20 of the C.P.C. Was examined in Rameshwar Das v. Official Receiver, Delhi and another, Debtors and others AIR 1938 Lah. 325 and it was held:-- "Where an appeal against a respondent has become barred by time, he ceases to be "a person who is interested in the result of the appeal" within the meaning of XLI, rule 20 and his name cannot be subsequently added as a respondent under Order XLI, rule 20."
' To the same effect is also Hayat and other v. Mutelli and others AIR 1938 Lah. 35 which was followed along with the case of Taja Singh v. Katar Kaur AIR 1937 Lah. 180 b: another learned Judge of this Court in Shangara Singh and others N, . Imam Din and others AIR 1940 Lah, 314 to conclude that:-- "Court is not competent to allow the appellant to implead a person for the first time after the limitation for the appeal has expired."
' Obviously enough, if a prayer may have been made in the lower appellate Court for joining Abdul Qadir in the appeal, it could not have succeeded, then, how may it be that the appellant may on his own choose to join Abdul Qadir in this Second Appear-An act which is not capable of being done even with the leave of the Court, rather, for which even a Court does not have the power to grant permission, cannot be accomplished by a litigant just by himself by simply omitting to ask for its permission. The name of Abdul Qadir has, therefore, to be treated as non-existent for the purposes of this appeal. It is firmly settled that where a necessary party is left out in an appeal there it cannot be proceeded with and becomes liable to be dismissed as being imperfectly constituted. While considering the question of array of parties in an appeal, their Lordships of the Supreme Court have, in a different context, observed in Shah Muhammad and others v.
Muhammad Bakhsh PLD 1972 SC 321 as under:-- "It will be totally wrong to hold that an appellate Court can proceed to hear an appeal, even if the necessary parties are not before it." ' and, in the same judgment, while examining the scope of the provision made in rule 4 of Order XLI of the C.P.C., it has been held:-- "The provision of Order XLI, rule 4 of the C.P.C. Is merely an enabling provision which confers a privilege on one of the plaintiffs or defendants to prefer an appeal from a decree which proceeds on any ground common to all the plaintiffs or to all the defendants. It nowhere lays down that any person, F who is a necessary party to the appeal, can be excluded and still the appeal will be properly constituted." and therein also stands approved a Full Bench Judgment of this Court reported as Nanak, deceased, represented by Umra and others v. Ahmad All and another AIR 1946 Lah. 399 which had held that this provision cannot be applied where the non-appealing plaintiff or defendant, as the case may be, has not been impleaded in the appeal at all. In the case of Rameshwar Das (ibid) it is also held:-- "No memorandum of appeal, whether in a Letters Patent Appeal or in any other appeal can be considered to be complete unless it mentions the names of all the parties against whom relief is sought."
' Following the rule laid down in an earlier judgment reported as Khaira v. Saleam Raj I L R (1920) 1 Lah. 21, a Division Bench of this Court held in Chajju Ram and others v. Singh Ram and others AIR 1925 Lah. 392-1 that an appeal cannot be proceeded with if necessary parties to the appeal are not impleaded.
' As has been seen above, the omission to so implead Abdul Qadir had to inevitably result in rejdction7tit the appeal below and, for practical purposes, it does not make the least difference that it was in fact heard to be only dismissed on merits, in complete oblivion of the defect resulting from the omission of his name. It stands amply brought out in the above-cited judgments that the implement of a party to an appeal after the ,expiry of the limitation for filing the appeal is just not possible. Neither Rule 4 of Order XLI of the C.P.C., is open to be pressed into service in such a situation nor can Rule 20 thereof be invoked in this context. Hence, the unauthorised inclusion of the name of Abdul Qadir in this second appeal has to be simply disregarded because for the purposes of this appeal he is a new party and no new party can be added in an appeal. In the absence of Abdul Qadir, even the provisions of Rule 33 of Order XLI of the C.P.C. Cannot be used for reversing the decree passed and upheld below in favour of respondents Nos. 1 to 7 which has become unassailable as regards him. The power can thereunder "be exercised in favour of all or any of the respondents or parties" but not in favour of a non-party so that this second appeal is liable to be simply dismissed on this short ground.
5. Inconsistent decrees cannot be brought about to co-exist in one and the same case and since the result of ultimate success of this appeal cannot be that whereas the trial Court's decree remains in the field against Abdul Qadir, it may be set aside against Muhammad Suleman, therefore, no useful purpose can be served in proceeding with such an appeal which has, accordingly, to be held not liable to be proceeded with and is, hence, dismissed in limine.