' MOHAMMAD ASLAM MIAN, J:-- This Letters Patent Appeal has been brought from a judgment dated 6-7-1971 of a learned Single Judge whereby Writ Petition No.369/R-65 filed by Syed Rahat Hussain Zaidi, Sardar Mohammad, Gulzar Mohammad and Mohammad Shafi, seeking the setting aside of an order dated 20-2-1965 passed by Mr. Mohammad Saeed-uz-Zaman, Settlement Commissioner, Lahore, was dismissed.
2. It may be mentioned at the very outset that initially the Letters Patent Appeal was filed by Syed Rahat Hussain Zaidi only. However, an application bearing No. C.M.2/71 was submitted on 27-9-1971 by Sardar Mohammad, Mst. Ejaz Begum widow, Khalid Mehmood Gull, minor son, Bushra Parveen and Azra Parveen, minor daughters of Gulzar Mohammad who had died in the meantime and Mohammad Shafi, with the prayer that since Syed Rahat Hussain appellant misunderstood and under a wrong assumption did not make them as co-appellants in the L.P.A., therefore, their names were to be added as co-appellants of Syed Rahat Hussain Zaidi appellant. A learned Division Bench of this Court vide its order dated 30-9-1971 allowed this application.
3. Briefly the facts of the case are that on a C.H. Form submitted by Syed Nasir Kazmi predecessor of respondents Nos.2,3,4 and Syed Ansar Kazmi respondent a house built on plot No.50 (Khasra No.4263/40) being evacuee property and in their occupation was transferred to them vide order of the D.S.C. Dated 26-1-1960. The house was described as 64.S.30, allegedly having a compound wall overlaping adjacent plots Nos.48 (Khasra No.4265/40) and 49 (Khasra No.4264/40) situated in Krishan Nagar Lahore. Later on 13-5-1960 plots No.98 and 49 were put to auction. Plot No.48 was purchased by Rahat Hussain Zaidi appellant while plot No.49 was purchased by Sardar Mohammad, Gulzar Mohammad and Mohammad Shafi. The auction was confirmed on 4-6-1960 and 18-11-1960 by the Addl. Settlement Commissioner. The P.T.O's were accordingly issued on 13-12- 1960 and appellants Nos.2 and 3 put into possession of their respective plots through police on 23- 10-1961.
4. Syed Nasir Kazmi predecessor of respondents Nos.2,3 and 4 and Syed Ansar Kazmi filed an appeal before the Addl. Settlement Commissioner Lahore on 25-10-1961 stating therein that plots Nos.48 and 49 were part and parcel of property No.SW-III-64-S-30 transferred to them and the same had been used as a courtyard of the aforesaid property by the non-Muslim owner before Partition. The Addl. Settlement Commissioner vide his order dated 22-1-1962 accepted the appeal and remanded the case to the Deputy Settlement Commissioner concerned with a direction first to depute a Patwari or a Rehabilitation Inspector to make a report with a plan after spot inspection and then to decide the matter on merits after hearing the parties.
5. On remand the Deputy Settlement Commissioner after spot inspection and hearing the parties observed vide his order dated 18-4-1962 that the house in dispute was 21 storeyed building and its correct No.As per corporation record was SW-III-105-S-8 and not as 64-S-30 against which that was originally transferred to the occupants in full vide P.T.O. No.373776 before the auction of the alleged courtyard of the said house took place. The total area of the site in which that house was built was one kanal and 8 marlas as per P.A. List of Lahore Corporation (attached) the spot inspection revealed that there were 28 marlas of land out of which 8 marlas had been constructed.
Since the auction was confirmed by the Addl. Settlement Commissioner so the Deputy Settlement Commissioner Mr. Maqarrab Khan referred the case for orders to the Addl. Settlement Commissioner on 18-4-1962.
' The Addl. Settlement Commissioner on reference again took up the matter and after hearing the parties sent the case back to the D.S.C. For a decision on merits. That was vide order dated 6-9- 1962. Thereafter, Ch. Ghulam Rasul Deputy Settlement Commissioner dealt with the matter. He being fully conscious of the emand order, inspected the spot and after hearing the parties came to the conclusion that, "as the open sites bearing khasra No.4264 and 4265 are two independent plots and are not part of the house transferred to the appellants. I, therefore, hold that the auction of the plots is in order and rightly confirmed and the appellants claim over the plots is rejected." This was vide order dated 31-12-1962.
' The respondents again went in appeal before the learned Addl. Settlement Commissioner, Lahore who vide his order dated 1-7-1963 dismissed the same on the ground that since the auction was confirmed by an Addl. Settlement Commissioner, therefore, he having parallel jurisdiction could not sit in judgment over the issue.
' The respondents then filed a revision before the Settlement Commissioner, Mr. Mohammad Saeeduz Zaman, Settlement Commissioner ' who vide his order dated 20-2-1965 accepted the revision petition observing, "I have heard them and the counsel for the auction purchasers. I also visited the spot on 23-1-1965 in the presence of the parties. The file shows that Khan Muqarrab Khan the then DSC of the Ilaqa after spot inspection held the plots to be part of the House No.S.W.IIl-64-S-30 but Ch. Ghulam Rasul DSC without getting the approval of appropriate authorities reversed the order of Khan Muqarrab Khan. Ch. Ghulam Rasool by his order dated 31-12-1962 has created confusion instead of clarifying the situation and involved the parties in unnecessary worry and expenses. These plots No.48 and 49 bearing khasra No.4264, 4265 are shown in an approved scheme as different plots but the construction of latrine and compound wall shows and proves that Evacuee Owner who used to live in House No.S.W.III-64- S-30 himself changed his mind and included these plots in his residential house.
' The construction of the compound wall and that of latrine is of the same type as that of the house itself and appears to be of pre-independence days. I, therefore hold that these plots are the integral part of the house No. SE. III-64-S-30. The auction of these plots was not justified and therefore, cancelled.
' Aggrieved therefrom the appellants filed a Constitutional petition bearing No.369/R-65 which came up for hearing before a learned Judge of this Court who vide his judgment dated 6-7-1971 dismissed the same.
6. The learned Single Judge as to the basic question raised before him that whether the three plots constituted one property or three separate and distinct properties, observed that the question so raised was not only a question of fact but was also a question which under paragraph No.14 of the Schedule to the Displaced Persons (Comp. & Reh.) Act, had to be decided entirely by the Chief Settlement Commissioner or by any other officer authorised by the Central Government in that behalf and not by this Court in the exercise of its writ jurisdiction. The learned Single Judge did not agree with the learned counsel appearing on behalf of the appellants that there existed any ground for interference though the High Court could interfere with a finding which was based on no evidence or on a complete misreading of evidence. He found the order of the Settlement Commissioner embodying the reason as to his finding. However, he observed that, that might be that the finding of the learned Settlement Commissioner was not correct or was not based on eloquent evidence but certainly that could not be said that the same was based on no evidence or upon a complete misreading of evidence. According to the learned Single Judge the appellants had failed to make out any case for interference with the finding of the learned Settlement Commissioner (being mainly a finding of fact) in writ jurisdiction and for that he also relied upon M.A. Latif etc. v. Fazal-ur-Rahman etc. (1968 SCMR 1411).
7. In the appeal against the aforesaid order of the learned Single Judge the learned counsel for the contesting respondents has raised a preliminary objection that the appeal as brought was not properly constituted since it was filed only by Syed Rahat Hussain Zaidi without impleading Sardar Muhammad, Gulzar Muhammad and Muhammad Shafi as co-appellants or respondents, therefore, the appeal is liable to be dismissed. Sardar Muhammad, the legal representatives of Gulzar Muhammad and Muhammad Shafi were added as co-appellants on 30-9-1971 by which time their right to appeal had become time-barred and as the necessary parties were added to the appeal after the limitation, the entire appeal must be dismissed. In his words the appeal to the extent of all the appellants is time barred because it became properly constituted after the time for filing the appeal had run out for which neither any sufficient reason for condonation of delay was given nor any application for the same had been filed. The learned counsel has relied in support of his objection upon Devi Dayal v. Narain Singh and others (AIR 1928 Lah. 33) wherein it has been held that if a necessary party is joined as plaintiff or defendant after the time for the suit has run out, the entire suit must be dismissed; Qasim Khan and another v. Mst. Malkai and others (PLD 1963 (W.P.) Pesh. 58) in which it was held that where a party to the suit was not made as respondent in the appeal, it could not be added as respondent after the period of limitation against such a party, had expired; Mehtab Beg and 2 others v. Ghulam Muhammad and others (PLD 1975 Lah. 580) in this case it has been observed that when the parties are added by the Court after the institution of a suit under Order I rule 10 (2) CPC, section 22 of the Limitation Act, provides that the day when they are added is to be deemed to be the date of the institution of the suit so far as they are concerned for the purposes of limitation and the rights which they may have acquired under the Limitation Act are therefore, sufficiently safeguarded. The addition of a respondent whom the appellant has not made a party to the appeal is expressly dealt with in Order XLI Rule 20 C.P.C. The rule empowers the court to make such party a respondent when it appears to the court that it is interested in the result of the appeal. No doubt it is a question for the Court in its discretion to determine in each case whether or not it will make an order for the addition of a party as contemplated by the rule, such power is not to be exercised or, the application of party. It is well established rule of law that this power should be exercised very cautiously because a person in whose favour the lower Court has passed a decree against which an appeal is not filed within the period of limitation has a substantive right of a valuable kind which should not be lightly treated; Mst. Maqbool Begum etc. v.
Gullan and others (PLD 1982 SC 46) wherein it was held tha' where the decree appealed from by some of the defendants was joint and indivisible, the failure to implead the remaining defendants or any of them rendered the appeal as incompetent; Syed Khadim Ali Shah and others v. The Additional District Judge (1982 CLC 577), in this case it has been observed that under section 22 of the Limitation Act the amendment if allowed would not be effected retrospectively but will take effect from the date on which the amendment is permitted to be made. In these circumstances if the name of Syed Shabbir Hussain Shah is allowed to be added the suit of the plaintiff against him will be barred by time.
' The learned counsel for the contesting respondents has also tried to co-relate the effect of non- joining of the co-writ petitioners by appellant Rahat Hussain Zaidi with that of the case of failure to implead the legal representatives, of a party dying during the pendency of an appeal so as to be co-extensive with the concept of the total abatement of the appeal. He ha's referred to Shah Muhammad and others v. Muhammad Bakhsh (PLD 1972 SC 321) in which it was held that Order XLI Rule 4 C.P.C. Is merely an enabling provision which did not lay down that a necessary party to an appeal could'be excluded. The provision also did not exclude the operation of Order XXII C.P.C. In determining the question as to abatement of an appeal one had to consider whether the decree was indivisible or not. Shah Muhammad etc. Were jointly occupying a portion of the premises in dispute. The decree in the circumstances was indivisible and each person was a necessary party to the appeal. The death of one of such parties without substitution of its heirs resulted in the total abatement of the appeal; Mst. Murad Begum etc. v, Muhammad Rafiq etc. (PLD 1974 SC 322), in this case it has been observed that once it is found that the decree appealed from by some of the defendants was joint and indivisible against all the defendants then it follows that their failure to implead the remaining defendants or any of them rendered the appeal incompetent. The principle underlying this rule is that otherwise inconsistent and contradictory decrees would come into existence regarding the same subject matter and as a result of the same litigation; Muhammad Yousaf v. Punjab Province (1983 CLC 2425),in this case an Intra-Court Appeal was filed by 68 persons out of 105 who had originally filed the writ petition which was dismissed. The interest of all was indivisible as all had jointly applied for the approval of establishment of feeder market, jointly purchased the land and jointly offered to transfer two plots for construction of office of the Market Committee. The omission to implead 37 writ petitioners either as respondents or appellants was regarded as fatal to the structure of the appeal.
8. The learned counsel for the appellants has in reply submitted that the application under Order I Rule 10 (2) read with section 151 C.P.C. For impleading Sardar Muhammad, legal representatives of Gulzar Muhammad and Muhammad Shafi, as co-appellants was allowed without subjecting the order to just exceptions, therefore, no objection now can be raised. In answer the learned counsel for the contesting respondents has submitted that the application for impleading them as co- appellants was allowed without any notice to the respondents, therefore, in such a situation it is open to the respondents to take an exception at the time of the hearing of the appeal, in support hereof the learned counsel has relied upon Aon Muhammad v. The Rehabilitation Commissioner and another (PLD 1966 (W.P.) Lah. 319), Mr. Manzoor Qadir v. Amatul Hussain and 2 others (PLD 1971 Lah. 537) and Binjamin Sirajuddin and another v. Haji Abdul Latif and 4 others (1983 SCMR 836).
9. The learned counsel for the appellants has next submitted that it was only out of mistake that appellants Rahat Hussain Zaidi had forgotten to name his co-writ petitioners in the L.P.A. As co- appellants and as the co-writ petitioners/appellants believed that their names would be included by Rahat Hussain Zaidi as appellants who was himself under the impression that his co-writ petitioners would be filing the L.P.A. Separately (so filed the present appeal in his own name) therefore, to cover up such a situation Order XLI Rule 20 C.P.C. Can be pressed into service. He has relied upon Saru Khan v. Jan Muhammad and others (AIR 1928 Lah. 33) in which the pleader for the plaintiff/appellant did not implead the co-plaintiff in the appeal under mistaken view of Order XLI Rule 4 C.P.C. The Court allowed them to be joined as respondents at the hearing under Order XLI Rule 20, C.P.C.; Feroze A. Cooper v. Secretary of State (AIR 1928 Lah. 947) wherein it has been observed that Order XLI Rules 20 and 33 should be sparingly used in cases where the appellant omits to implead the necessary respondents through over-sight. It is only in cases where full justice cannot be done or where the appeal anyhow re-opens the whole of the question decided that the power under Order XLI Rule 33 should be exercised.
10. The learned counsel has further submitted that even if the co-writ petitioners are not treated as having been added to the appeal, Rahat Hussain Zaidi appellant can appeal from the whole order without joining them as parties to the appeal as the order appealed from proceeds on a ground common to all the original writ petitioners and this Court can reverse or vary the order in favour of all the writ petitioners under Order XLI Rule 4 read with Rule 33 C.P.C. He has read out the rules which are:-
0. XLI, R.
4.-- "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.
0. XLI, R.
33.-- ' The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or, made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may bot have filed any appeal or objection: ' Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeals preferred has omitted or refused to make such order."
' As to the interpretation of the afore-quoted rules he has relied upon Mt. Parwati Kuer & others v.
Manna Lal Khetan & others (AIR 1956 Pat. 414 (FB), there in a mortgage suit the learned Subordinate Judge passed a preliminary mortgage decree for the total amount... In favour of the plaintiff an appeal from which was presented to the High Court on behalf of three defendants. There occurred a discrepancy in the name of the third appellate who was described as Jai Narain Ram in the memo on appeal and as Jai Narain Prashad defendant (No.13) in the trial Court. There was an order of the Bench that the discrepancy should be reconciled and as the order was not complied with the name of appellant No.3 namely defendant No.13 stood expunged from the memo of appeal. A preliminary objection was taken at the time of the hearing of the appeal on behalf of the plaintiff/respondents that the appeal was incompetent since defendant (No.13) had been expunged from the category of the appellants and the preliminary decree for sale granted by the lower Court had become final so far as defendant No.13 was concerned. It was contended that the remaining appellants namely defendants 11 and 12 were not entitled to seek relief under the provisions of Order XLI Rule 4 C.P.C. In the absence of defendant No.13 from the record of the appeal and maintained that Order XLI Rule 4 and Order XLI Rule 33 could not be applied unless defendant Jai Narain Prasad was on the record either as appellant or as respondent with an emphasis that the appellate Court was not competent to reverse or vary the decree in favour of a person who was not impleaded as a party either as an appellant or a respondent. It was observed:- "If Order XLI Rule 4 is read alongwith Order XLI Rule 33 it is clear that if one of the defendants prefers an appeal and the appeal proceeds on a ground common to all the defendants the appellate Court is competent to pass such decree as the case may require and this power may be exercised in favour of all or any of the respondents or parties though such respondents or parties may not have filed any appeal. It is clear from the language of Order XLI Rule 33 that the exercise of this power by the appellate Court is not confined only to the case of respondents who are parties to the appeal but the power can be exercised in favour of persons who are parties to the suit. If Order XLI Rule 4 and Order XLI Rule 33 are read together there can be no doubt that one of the defendants can file an appeal without impleading the other defendants as respondents and if the appeal proceeds on a ground common to all the defendants the appellate Court may exercise the power of varying the decree in favour of the non-appealing defendants though they had not been made parties to the appeal. The effect of these two rules therefore is that the appellate Court is authorised to pass a decree in favour of a party who has not been heard but the appellate Court is not authorised to pass a decree against a person who is not party to the appeal. It is clear that the wide powers conferred to the appellate Court by Order XLI Rules 4 and 33 cannot be exercised to the prejudice of a person who has not been given a hearing."
11. In reply to this exposition of the law having been relied upon by Ch. Muhammad Arif, , Advocate the learned counsel for the contesting respondents Mr. Riaz Anwar, has maintained that the view of our Courts than that of the Patna High Court as cited above is different. In this behalf he has relied upon Saru Khan v. Jan Muhammad & others (AIR 1928 Lah. 43) in which it has been held that Rule 4 cf Order XLI C.P.C. Authorises one of the plaintiffs to an action in which other co-plaintiffs are also interested to appeal for the benefit of the latter, only if they are made parties to the appeal; Mattak V. Ahmad Ali (AIR 1946 Lah. 399 (FB), in this decision the above said Lahore decision as to the applicability of Order XLI Rule 4 C.P.C. Was regarded as laying down the correct view; Allah Dad and others v. Nawab and others (PLD 1960 (W.P.) Lah. 277) in which it has been held that the provisions of Order XLI Rules 4 and 33 C.P.C. Are enabling provisions. Rule 4 CPC confers a privilege on one of the plaintiffs or defendants to appeal from a decree which proceeds on any ground common to all the plaintiffs or to all the defendants but certainly it does not mean that the persons who are necessary parties to the appeal are exempted from being made parties to the appeal. Similarly rule 33 CPC deals with the powers of the Court but it does not mean that the Court can exercise these powers even in favour of those persons or against them when they are not made parties to the appeal; Shah Muhammad and others v. Muhammad Bakhsh (PLD 1972 SC 321), in this decision, Manak v. Ahmad Ali (AIR 1928 Lah. 43), Allah Dad v. Nawab and others (PLD 1960 (W.P.)
Lah. 277) alongwith other decisions were considered and as to the significance of Order XLI Rule 4 CPC it was observed that it was nowhere laid down that any person who was a necessary party to the appeal could be excluded and still the appeal would be properly constituted. This point was considered in relation to the then provisions of Order XXII of the Code; Hassan Muhammad v. Jan Muhammad and 5 others (PLD 1982 Lah. 132), in this case it has been observed that the rule no doubt gives power to the Court but it does not confer any right upon a party. The exercise of the power being discretionary towards just rights of the parties in accordance with justice, equity and good conscience- -he rule is not to be applied in favour of a party which has been ,silty of negligence, more particularly in favour of a party so as to enable it to evade or affect the bar of limitation; Punjab Road Transport Board v. Tanvir Ahmad and four others (1983 CLC 1160), in case granting a decree jointly and severely for damages against the driver and the owner i.e. Punjab Road Transport Board, an appeal was filed by the Punjab Road Transport Board in which the driver was not impleaded as a party who had himself not filed any appeal. An application was made under Order XLI Rule 20 CPC for impleading the driver as respondents on the ground of inadvertent omission. The application was disallowed since no detail as to the inadvertent omission had been given to enable the Court to judge that's correctness. It was held that the law did not brook the acceptance of a petition under Order XLI Rule 20 CPC made by a party who was guilty of gross negligence and as the rule provided discretion which could hardly be exercised in the cases of extreme negligence. On the question that the appeal was not properly constituted having omitted a necessary party from the array of respondents against the submission of the learned counsel that the Court could exercise powers under Order XLI Rules 4 and 33 C.P.C. And proceed to adjudicate upon the appeal on merits, it was observed that for the exercise of discretionary power, under Order XLI Rules 4 and 33 C.P.C. The necessary parties must have been before the Court before it could make any order under the rules AIR 1946 Lah. 399, PLD 1960 (W.P.) Lah. 277 and PLD 1972 SC 321 were referred.
12. As has been set out above the learned Division Be'nch allowed the application under Order 1 Rule 10 CPC for impleading Sardar Muhammad, Muhammad Shafi co-writ petitioners and legal representatives of co-writ petitioner Gulzar Muhammad as co-appellants without notice to the other party. It is well settled that when and order is passed during the pendency of an appeal without notice to the other party an objection can be raised to that at the time of hearing of the appeal when the other party happens to have the notice. The reliance of Mr. Riaz Anwar, Advocate, in this behalf is well placed. Such orders are generally treated as subject to just exceptions even if it is not expressed so.
13. As to the objection that whether the appeal as filed by Syed Rahat Hussain Zaidi was properly constituted, the answer is in the affirmative in the sense that so far as Syed Rahat Hussain Zaidi was concerned the appeal as filed as to his right was competent even though he had not impleaded the co-writ petitioners as co-appellants or respondents, the reason for which is that the co-writ petitioners were not the necessary parties qua the claim of Syed Rahat Hussain Zaidi appellant as the interest claimed by him was separate and not joint since the claims were as to two different plots, one was being claimed by Syed Rahat Hussain Zaidi appellant and other by the co-appellants jointly. The parties against whom the relief was being claimed were there. The rule of law is that a non-joinder or mis-joinder of parties will nct by itself defeat a cause and the Court is to deal with the matter in so far as it regards the parties actually before it and is to dispose of the cause provided that can be effectively done so between the parties on the record.
Reference is made to East and West Steamship Co. v. Queensland Insurance Co. (PLD 1963 SC 663), George Hanoman v. Archibald Rose (PLD 1957 P C 24) and Kh. Muhammad Saeed v. Mr. Justice Shabbir Ahmad and 12 others (PLD 1965 Lah. 92). A non-joinder by itself has not been regarded as fatal unless accompanied by other considerations, for instance where there is a non- joinder of a necessary party meaning thereby that a party who ought to have been joined because of the relief having been claimed against it and in whose absence an effective decree cannot be passed and the suit will ultimately fail then the non-joinder is per se fatal. See United Provinces v.
Mt. Atiqa Begum and others (AIR 1941 FC 16). To make it more comprehensive the appeal filed by Syed Rahat Hussian Zaidi appellant for himself could be and can be proceeded with because the interest of the absent parties is distinct and separate in view oi. Which the concept of two contradictory orders is not entertainable. The decisions relied upon by the learned counsel for the contesting respondents that on the happening of certain events an appeal becomes either incompetent or abates, are applicable to the cases where the interest or the decree is indivisible.
14. In the absence of the co-writ petitioners here the Court can render justice between the parties before it and if an order is made in favour of Syed Rahat Hussain Zaidi appellant then in the absence of the others the order is not likely to be injurious as to affect the interest of the parties not joined and final determination in that behalf cannot be regarded as inconsistent with equity and good conscience. The co-appellants can be regarded as interested in the controversy in so far as the plot claimed by them is concerned and as to the plot claimed by Syed Rahat Hussain Zaidi they cannot be regarded as interested in the controversy, then if it is strictly construed though they had a joint front yet the interest being separate cannot be regarded as indispensable parties.
Therefore, the appeal of Syed Rahat Hussain Zaidi filed in his own right was competent and properly constituted despite the omission to join the others and was pending as such.
15. Order 1 Rule 10 CPC as enacted sufficiently empowers a court to add any person as a party who ought to have been joined or whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon all the questions involved in the suit. This rule when read with section 107 CPC is applicable also to an appeal. In the present case it is true that the right of the co-appellants to appeal therefrom the judgment, had become time-barred by 65 days when they were added as co-appellants to this appeal but this will not have its impact upon their position when so added so as to say that the appeal regarding them will be treated to have been filed when they are added as parties as is in the suits. Section 22 of the Limitation Act enunciates:- (1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.
(2) Nothing in subsection (1) shall apply to a case where a party is added or substituted owing to an assignment or devaluation of any interest during the pendency of a suit or where a plaintiff is made a defendant or defendant is made plaintiff.
' Now from the language used herein the counting of time limit is there but it is applicable only to the suits and as there is no parallel provision as to appeals within the Limitation Act or to say that a plaintiff and the defendant shall include an appellant and respondent respectively, so the appellate court has the discretion to substitute or add an appellant or respondent after the period of limitation prescribed for an appeal for which reliance can safely be placed upon. The Court of Wards on behalf of the Raja of Kantit v. Gaya Prasad & others (I L R All. Series Vol.II (1879), in which it has been observed:- ' The first question arising in this appeal is whether or not the appeal so far as it affects Ram Manorath is barred by limitation. By some carelessness he was not at first made a respondent and the period prescribed for appeal had expired before he was brought on the record as a respondent. By 22nd section of the Limitation Act it is provided that when after the institution of a suit a new plaintiff or defendant is substituted or added, the suit shall as regards him will be taken to have been instituted when he was so made a party. There is no analogous provision with respect to appeals, and therefore, it is competent to the court to exercise its discretion in allowing a party to be added to the record after the period prescribed for the admission of an appeal has elapsed ' When in the present appeal the co-appellants were allowed to be impleaded or added as parties it appears that the Bench so allowing the application was convinced as to the reason in support thereof as set out in the application under Order 1 Rule 10 CPC. Now after hearing the learned counsel for the contesting respondents who has only attacked upon the competency of the appeal on the question of constitution and limitation, we do not find any justification to interfere with the discretion so exercised by the learned Judges of the Division Bench in allowing the application. As to the competence of the appeal as it is now constituted our conclusion is that it can be proceeded with without giving any countenance to the objection raised by the learned counsel in this behalf. In view of this conclusion the other aspects and the points raised respectively by the learned counsel as to the competence of the appeal require no discussion.
16. The learned counsel for the appellants has on merits submitted that in the year 1942 one Lala Devi Dayal had obtained a sanctioned Housing Scheme and according to Massavi in 1945 no house was built upon the plots in question. It was only in 1945 that one house was built on plot No.50. The house was built by one Soshila Devi. The total area of the house was only 12 Marlas including the courtyard which did not enclose plot Nos. 48 and 49 which plots remained in the ownership of Lala Devi Dayal. The number of the house in plot No.50 as shown in the P.A. List for 1946 was S.W.III.64-S-30 and its assessed rent was Rs.63.8 Annas per month. In 1955 as it appears the number was changed to SW-III-105-S-8 although in the P.A. List for 1946 it was shown as a single storeyed house but actually it was 2 1/2 storeyed. That appears to have been raised to that extent after 1946. The documentary evidence whatever is available stands to the effect that those were three separate and independent plots. The learned counsel has contended that since the finding of the Settlement Commissioner is based on no evidence therefore the learned Single Judge has erred in law in upholding the same. To hold that plots Nos .98 and 49 are part of the house raised on plot No.50 on the strength of boundary wall and latrine, is erroneous. The learned Settlement Commissioner rather delved into the realm of conjectures by holding that the construction of latrine and compound wall showed and proved that the evacuee owner who used to live in house No.SW-III-64-S-30 himself changed his mind and included those plots in his residential house.
Unless there happened to be some evidence to that effect such a speculation was not open to the Settlement Commissioner and as to the observation that the construction of the compound wall and the latrine was of the same type as that of the house itself and appeared to be of pre- independence days, such an eye observation and mere thinking could not be regarded as conclusive because that could be arranged and set up at any time, secondly the learned Settlement Commissioner was not an expert in that branch of the knowledge so as to conclude that all were of the same type, as such, of pre-independence days. His conclusion was against the documentary evidence whatever placed to show that all the three plots were independent of each other.
' The next contention raised by him is that the observation of the learned Single Judge that the appellants should have moved the Chief Settlement Commissioner under para No.14 of the Schedule to the Act, is not correct in law because para 14 is not attracted in this case and even the Settlement Commissioner had not purported to act under para 14 of the Schedule to the Act. He has also relied upon N.M. Khan v. Chief Settlement Commissioner (1970 SCMR 158) whereby it has been held that a property bearing two different property numbers though situated within one compound and having a common owner cannct be transferred as one property.
17. The learned counsel for the contesting respondents has supported the order of the learned Settlement Commissioner relying upon the reasons which found favour with the learned Single Judge in dismissing the writ petition. The learned cousel has laid an emphasis on the well-known principle that a finding of fact even based upon insufficient evidence cannot be interfered within the scope of writ jurisdiction. He has maintained finally that the spot inspection made by the Settlement Commissioner himself and his observations thereon must have their due weight.
18. The most striking observation of the learned Single Judge which is capable of assuming another meaning or significance as well is:- "It may be that the finding of the learned Settlement Commissioner was not correct or was not based on eloquent evidence but certainly it cannot be said that the same was based on no evidence or a complete misreading of evidence."
' From this observation it can be inferred that the learned Single Judge was himself conscious of the probative value of the evidence but he thought it as not to interfere because according to him the case could not be termed as of no evidence or of misreading of evidence. What we gather - from the order of the learned Settlement Commissioner is that the learned Settlement Commissioner after having agreed that the plots Nos. 48 and 49 bearing Khasra No. 4264 and 4265 were shown in an approved scheme as different plots, should have looked for some solid evidence to come to his conclusion rather than to have speculated from the construction of the latrine and the compound wall. We do not know, from the latrine and the compound wall which could be raised at any time how the learned Settlement Commissioner was competent without any evidence in that behalf to infer that, that had proved that the evacuee owner who used to live in the house No.SW-III-64-S-30 himself changed his mind and included those plots in his residential house. Such a fact can be taken to have been established only when some evidence worth its name is adduced or found towards that. He being not an expert could not opine that the construction of the compound wall and of the latrine were of the same type as that of the house itself and as such appeared to be of pre-independence days. What the law prefers is to base a conclusion upon the evidence by its probative value sufficient to come to a result. A speculation however, richer that may be cannot atone for evidence or be a substitute of it. A conjectural domain is not allowed in law to be paced with towards the determination of the rights of the parties. In our opinion it will not be wrong to observe that the order of the learned Settlement Commissioner is based upon no evidence which further means that an elaborate inquiry worth its name was not conducted by the learned Settlement Commissioner. For the decision of the matter in issue the case still requires an elaborate inquiry so as to resolve the factual controversy after looking into the documentary as well as other type of evidence.
19. In the result we accept this appeal, set aside the judgment of the learned Single Judge dated 6- 7-1971 as well as that of the learned Settlement Commissioner dated 20-2-1965 and remand the case to a notified officer competent to deal with the matter to decide the issue afresh after an elaborate inquiry, with due notice to the parties, as to whether plots Nos. 48,49 and 50 are three independent plots or one so as to say that plots Nos.48 and 49 are the part of the house raised on plot No.50. In the circumstances of this appeal, there is no order as to costs.