1. ANWARUL HAQ, J---The litigation forming the subject-matter of this appeal, by special leave of the Court, has a chequered history, spreading over nearly half a century.
2. A suit for the possession of the land in dispute, situate in Mauza Lahorwah in tehsil Lehri of Kalat district was instituted in 1925 by the father and uncle of the present appellant Atta Muhammad in the Court of an Officer described by the designation of Mustafi, Tehsil Lehri, against the respondents. The suit was transferred by this Officer to the Kazi of Mirpur for disposal according to Shariat. Out of the thirteen defendants, two namely, Khanun and Bakhshu, admitted the claim of the plaintiffs, whereas ,he rest disputed the same. The suit was decreed by the Kazi to the extent of one-third, of the share of these two defendants, but dismissed as against the rest. This was apparently in 1942 or 1943, the exact date of this judgment trot being easily available on the record.
3. On 31-8-1344 the present appellant, as successor-in-interest of the original plaintiffs, made an application to the Wazir-e-Azam, Kalat, for perm to produce evidence to prove his case against the remaining eleven defendants. This application was entrusted to the Majlis-e-Shura, before which defendant. Allah Waraya admitted the plaintiff---s claim, where upon the suit was also decreed against him, but dismissed as against the rest.
4. Being still dissatisfied, the appellant preferred an appeal against the judgment of the Mailis-e- Shura, but the said appeal was dismissed by the Wazir-e-Muarif of Kalat State on 5-6-48. The appellant then applied for a review of this judgment, but the sane was rejected. Thereafter, the appellant filed an application before the Wazir-e-Azam requesting him to take evidence in the case. This application was referred to Wazir-e-Muarif, but the evidence was heard by Maulvi Taj Muhammad, Naib Wazir-e--Auzrif, and he decreed the suit against the remaining ten defendants by his judgment dated the 29th of September 1950. It appears that this order was endorsed by the Wazir-e-Muarif, namely, Maulvr Shamasul Haq on 16-11-50, when he refused to take any action on miscellaneous applications submitted by the respondents.
5. Aggrieved by the judgment and decree of the Naib Wazir-e-Muarif, the defendants filed a regular appeal before the Wazir-e-Muarif, which was however; dismissed on 11-3-51, with the result that the decree in favour of the appellant became final, as no further appeal was taken to the Wazir-e- Azam.
6. When the appellant flied an application for the execution of the decree, difficulties arose, as the Officers deputed to effect the partition of the land expressed their inability to do so on the ground that the boundaries could not be clearly demarcated. It is not necessary to narrate the details of the various report made by these officials, arid it would suffice to state that on 1-4-53 the learned Wazir-e-Muarif made an order dismissing the appellant's suit. For the last twenty-tyro years the appellant has been making frantic efforts to get this order or judgment of the Wazir-e-Muarif act aside, but he has not yet been heard on merits by any Court or authority.
7. On 3-5-53, ho filed an appeal before the Wazir-e-Azam under section 24 of the Dasturul Amal Divani of Kalat State which had been enforced by that time. Certain preliminary steps were taken by the Wazir-e-Azam, but it appears that this appeal was never finally disposed of until the formation of One-Unit of West Pakistan with effect from the 14th of October 1955.
8. On some date in 1954, the appellant also apparently filed an appeal before the Civil fudge of tile Balochistan States Union against the order of the Wazir-e-Muarif dated the 1st of April 1933. It was disposed of by this Officer on 12-8-54, upholding the claim of the plaintiff against the three defendants who had confessed judgment, but dismissing the suit as against the remaining ten defendants. The order of the learned Civil Judge wrongly concludes that the appeal was being dismissed, as it was in fact being partly allowed and only partly dismissed.
9. On 24-8-54, the appellant filed an appeal before the Wazir-e-Azam of the Kalat State against the judgment of the learned Civil Judge dated the 12th of August 1954. This appeal was still pending with the Wazir-e-Azam when the State was amalgamated with the other States and Provinces of West Pakistan. Under subsection (5) of section 7 of the Establishment of West Pakistan Act, 1955, the appeal stood transferred to the high Court of West Pakistan, and came up for bearing before a Division Bench consist--ing of Inamuilah and R. B. Munshi, J. The learned Judges allowed the appeal by their order dated the 8th of September 1958, on the view that the learned Civil Judge of the Baluchistan States Union was subordinate to the Wazir-e-Muarif whose jurisdiction was equal to that of a District Judge, and accordingly the Civil Judge had no jurisdiction to entertain an appeal against the judgment of the Wazir-e-Muarf. The learned Judges concluded that "the result of this order will be that the judgment of Wazir-e-Muarif will hold the field till it is upset." They further observed that as the appeal before them was directed against the judgment and decree of the Civil Judge of the Baluchistan States union and not that of the Wazir-e-Muarif, they did not propose to deal with the correctness and legality of the judgment of Wazir-e-Muarif dated the 1st of April 1953, Having failed to obtain relief from the High Court the appellant filed a review petition before a tribunal known as the Majlis-e-Shura, Kalat, which had replaced the erstwhile Wazir-e-Muarif. The Majlis rejected this application on 23-7-59 on the grounds that an earlier application for review had already been dismissed by the Wazir-e-Muarif on 3-5-53, and that they did not have any jurisdiction to review an order passed by any other Officer. The result was that the order of the Wazir-e-Muarif ,dated 1-4-53 remained intact.
10. Thereupon, the appellant filed Second Appeal No. 12 of 1963 in the High Court of West Pakistan, Quetta Circuit, which was, however, dismissed on 31-5-62 by a Division Bench comprising Waheeduddin Ahmad and A. S. Farooqi, JJ. The learned Judges upheld the view taken by the Majlis-e---Shura on both the points. The appellant then invoked the writ jurisdiction of the High Court by filing Writ Petition No. 21 of 1962, contending that the order of Wazir-e-Muarif dated the 1st of April 1953 was passed without jurisdiction. This petition was also summarily dismissed by a Division Peach of the High Court comprising Inamullah and J. H. Rizvi, JJ. By their order dated the 27th of August 1962. The learned Judges observed that the order made by Wazir-e-Muatif on let of April 195-1 against the appellant Atta Muhammad was appealable, and therefore, tile remedy provided under Article 98(2) of the 1962 Constitution was not available to him. On the question of the filing of the appeal before the Wazir-e-Azam, they rejected the appellant's contention on the ground that no such fact was mentioned on the previous two occasions when the matter had been brought before the High Court in 1958 as well as in 1962. They observed that they could not permit this point to be urged at that stag. Finally, they stated that if the petition was to be treated as being directed against the order trade on 1-4-53, then it was highly belated.
11. Aggrieved by this order Muhammad filed C. P. S. L. A. No. 289 of 1962, but the same was dis--missed by a Division Bench of this Court on the 6th of February 1963. The learned Judges observed that "the legal position, therefore, is that the petitioner's appeal against the order of the Wazir-e-Muarif remains undisposed of till today. The petitioner's remedy is obviously to approach the authority that is competent to hear that appeal for its disposal instead of coming to this "Court for special leave to appeal from the order of the High Court."
12. In the light of the observations made by this Court the appellant once again approached the High Court of West Pakistan. Quetta Circuit, by means of a Civil Miscellaneous Application No. 110 of 1963.
13. This application was dismissed in limine by a Division Bench of the High Court by its order ,Dated the 29 of July 1965, After tracing history of the litigation between the parties at some length, file learned Judges came to the conclusion that appellant Atta Muhammad had not filets any appeal against the judg--ment of the Wazir-e-Muarif dated 1-4-53, and the only appeal filed by him was against the judgment and decree of the Civil Judge, Baluchistan States Union, dated the 12th of August 1954, which appeal was numbered as C. A. 35 of 1956 and disposed of by the High Court by its order dated the 8th of September 1958. They further observed that the observations made by this Court, while dismissing Atta Muhammad's petition for special leave to appeal bearing Leo. 289 of 1962, regarding the pendency of such ate appeal, were not binding on them, as "it is difficult to concede the proposition that their Lordships gave any decision on a question of law in any undefended proceeding in which the respondents had no notice to appear."
14. The appellant once again cane to this Court by way of C. P. S, L. A. No. 116 of 1966, which was dismissed by a Division Bench of this Court on the 27th of May 1966, observing that it appeared that the facts were misrepresented before this Court on the basis of which certain observations were made while disposing of C. P. S. L. A. No. 289 of 1962. It was concluded that "the learned Judges of the High Court have, therefore, rightly held that no appeal was pending in that Court from line order of, the Wazir-e-Muarif.--- The appellant then preferred Civil Review Petition No. 30 of 1966, on which an interim order was made by this Court on the 10th of October 1966, stating that "what is necessary, it seems, is to ensure the petitioner right to one appeal from the decision of an original Court which has gore against him. There is need for determination of the question which Court is competent to hear an appeal from the decision of the Wazir-e-Muarif dated the 1 of April 1953." It was directed that "in the first instance, the record of the appeal before the Civil Judge Baluchistan States Union be sent for.
15. The matter again came up before the Court on 30-11-66, when the appellant's prayer for review of the order of this Court dated the 27th of May 1966, was granted. It was also directed that a competent counsel shall be appointed as amicus curiae if the appellant cannot afford one.th st The original petition for leave to appeal filed bar the appellant, namely, 116 of 1966, came up for fresh hearing before the Court on the 4th of April 1967, and leave to appeal was granted to examine the question whether the appellant's appeal against the order of the Wazir-e-Muarif of the now merged State of Kalat remains undisposed of till today.
16. From the foregoing somewhat lengthy narration of facts relating to the various stages of litigation between the parties, spreading over the last fifty years, it would be seen that the only question requiring determina--tion by us is whether the appellant had indeed filed an appeal against the order dated the 1st of April 1953, passed by the Wazir-e-Muarif of the former Kalat State, by which his suit was dismissed.
17. Our examination of the original record shows that on page 455 of the file relating to the appellant's suit there is an appeal addressed to the Khan--e-Muazzam Tajdar-e-Baluchistan, i.e. The Ruler of Baluchistan. This appeal is dated the 3rd of May 1953 and is directed against the order of the Wazir-e-Muarif Dated the 1st of April 1953. This appeal was properly entertained by the Ruler and ht passed an order on 6-9-53 directing the Wazir-e-Azam to consider the arguments and objections of the appellant and to do justice in the matter. This order appears at the bottom of the second page of the memorandum of appeal.
18. The appellant Atta Muhammad followed up this appeal by submitting a number of petitions to various authorities including the Wazir-e-Muatif himself. One such- application is dated 28-7- 53.On page 456 of the file, on the reverse of which there is a note by Maulvi Shamsul Haq, Waair-e- Muarif, dated the 30th of July 1953, stating that the petitioner had already filed an appeal against his judgment before the Wazir-e-Azam, and that this application may also be forwarded to the Wazir-e-Azam. There is atial another application addressed by the appellant to "Agha Sahib", meaning Agha Abdul Hamid who was then Prime Minister of Kalat State drawing attention to the disposal of his pending appeal. This is followed by further applications dated the 29th of September 1953, 26th of January 1954 and 15th of February 1954, all addressed to the Wazir-e- Azam, Kalat State, for the expeditious disposal of his appeal, as the matter had been pending for the last thirty years.
19. There is no indication on the file regarding the disposal of this appeal, but on page 462 of the file, there is an order dated the 2Ab of April 1954 directing the parties to appear before the Civil Judge of the Baluchistan States Union on the l5th of June 1954. On the succeeding pages there are some interim orders made by the learned Civil Judge, and-on pages 466 and 467 appears his decision dated the 12th of August 1954, to which reference has already been made. The file then contains some interim orders and notices etc. Issued in connection with the appeal filed by Atta Muhammad against the decision of the learned Civil Judge dated the 12th of August 1954.
20. It thus appears that the appeal filed by Atta Muhammad on 3-5-53 before the Ruler of Kalat, and forwarded to Wazir-e-Azam, Kalat, for dis--posal was never decided by the Wazir-e-Azam, and instead the only decision given in the matter was by the Civil Judge of the Baluchistan States Union, apparently in another appeal filed by Atta Muhammad before this Officer, which order was rightly set aside by the High Court of West Pakistan on 8-9-58 in Civil Appeal No. 35/1956. That the appeal dated the 3rd of May 1953, has remained pending is also clear from a report made by the Law Secretary of the Baluchistan States Union on the 28th of April 1955, a copy of which has been placed on the record of this Court on pages 9 to 15 of Part III of tile Paper Book. This Officer expressed the opinion that the decree passed by the Civil Judge. Baluchistan States Union, had no legal validity and could only be treated as a mere report to the Wazir-e-Azam and not a decree.
21. On a consideration of these documents and orders we have come to the conclusion that the appellant Atta Muhammad had indeed filed an appeal in the Court of the Wazir-e-Azam on 3-5- 53 against the dismissal of his suit by the Wazir-e-Muarif on 1-4-53 and this appeal had not beer, disposed of by the Wazir-e-Azam by the time the State of Kalat was merged with the other Provinces and States of West Pakistan. As already stated, under section 7(5) of the Establishment of West Pakistan Act, 1955, this appeal was to be deemed to be pending in the High Court of West Pakistan with effect from 14-10-55. The High Court has still not disposed of the same.
22. The fact that the appellant also filed an appeal in the Court of the Civil Judge of the Baluchistan States Union can have no effect on the pendency of the earlier appeal filed by him before the Wazir-e-Azam. On the contrary, as the order made by the learned Civil Judge on 12-8-54 has been found to be without jurisdiction by the High Court of West Pakistan, even this appeal could have been treated as a pending appeal to be disposed of by the authority having jurisdiction in the matter, namely, the Wazir-e--Azam of the Kalat State before the formation of One-unit and the High Court of West Pakistan thereafter. However, it is not necessary to pursue this matter any further, for the reason that there is an earlier competent appeal filed by the appellant on 3-5-53 in the Court of the Wazir-e-Azam of the Kalat State which has remained pending for all these years.
23. It is indeed unfortunate that the appellant had to run from pillar to post for the last twenty-two years to get a hearing on merits against the dismissal of his suit by the Wazir-e-Muarif by his order dated 1-4-53. It is obviously necessary to ensure that the appellant has at least one right of appeal against the order of the original Court.
24. As a result, we would accept this appeal, set aside the order made by the High Court of West Pakistan in Civil Miscellaneous Application No. 110 of 1963 on 29-7-65 and direct that the appeal filed by the appellant on 3-5-53 be now disposed of expeditiously on merits by the High Court of Sind & Baluchistan.
25. As no one has appeared to contest this appeal on behalf of the respondents, there will be no order as to costs.