' This judgment shall dispose of two connected Appeals Nos.65 and 170 of 1966, as they arise out of the same order of partition and involve identical factual and legal issues.
2. Appellants M/s. Jeevan Bakhsh deceased son of Ameer Bakhsh and Ghulam Hussain son of Jeevan Bakhsh filed a suit against M/s. Fazal Ahmad and others respondents, seeking a declaration to the effect that the order of partition passed by the Revenue Court in relation to the agricultural land measuring 385 Kanals, 4 Marlas jointly owned by the parties is illegal as the plaintiffs were never impleaded as parties thereto nor were heard although they were recorded co-owners. The suit was contested and following issues were framed:
(1) Does not Civil Court have jurisdiction to try the suit? OPD
(2) Is not the suit in proper form? OPD
(3) Is not the suit properly valued? If so, what is the correct value? OPD
(4) Are the plaintiffs in possession of the suit land? OPP
(5) Is the partition ultra vires and illegal? If so, on what ground and with what effect? OPP
3. Evidence was recorded and arguments were heard and case was fixed for orders, but the suit could not be decided and the Presiding Officer was transferred as a result whereof the hearing of the case had to take place afresh by the successor learned Civil Judge, who heard arguments afresh on 10-10-1963. After the hearing had been concluded before the previous learned Civil Judge, but before the case was fixed for arguments and hearing had concluded before the successor learned Civil Judge, M/s. Ghulam Muhammad defendant No,41 and Mst. Muhammad Bibi defendant No,31 in the suit died on 24-8-1963 and 18-1-1962 respectively. Their legal representatives were not brought on record within the stipulated period of time. The suit was ultimately decreed as prayed for.
4. Aggrieved of this judgment and decree Sultan Ahmad son of Muhammad Azam deceased defendant/respondent No,2, in this appeal filed regular first appeal in the District Court of Gujranwala. During the pendency of the appeal Muhammad Zareef one of the respondents in appeal died on 20-6-1964. An application for bringing on record his legal representatives was filed by the appellants. This application was contested on the ground that the same has been moved after the fixed period of limitation, hence, is barred by, time. Another application was brought on 27-11-1964 for setting aside of abatement qua him. The main reason as mentioned in the application, for filing of a time-barred application is, that the appellants had gone to Chak No, 38 Hann Abdal, Tehsil Phalia, District Gujart and, therefore, could not come to know of the death of the said respondent and that even otherwise he had already been served in the appeal and had not come forward to contest the same and that keeping in view large number of respondents the appeal will not abate. Another application was filed by the appellants for bringing on record the legal representatives of Mst. Muhammad Bibi and Ghulam Muhammad deceased respondents who had died during the pendency of the suit and who had been cited as respondents in the appeal. Both the applications were contested. Learned lower Appellate Court settled following issues:
(1) Whether Muhammad Zarif died on 19/20-6-1964? OPR
(2) If issue No,1 is proved in the affirmative, whether the appeal has not abated in toto and if so, to what extent it has abated? OA
(3) Whether the applications for setting aside the abatement is within time? If not whether there are reasonable grounds for the extension of time? OA
(4) If issue No,3 is proved in the affirmative, whether there are reasonable grounds for setting aside the abatement?
(5) If the findings is that the legal representatives of Muhammad Zarif can be brought on the record whether the appeal can be allowed to be amended to raise the plea that the decree was given against dead persons and of the suit abated in the lower Court on account of the death of Mst. Muhammad Bibi and Ghulam Muhammad?
(6) If the appeal can be amended whether Mst. Muhammad Bibi and Ghulam Muhammad died in the pendency of the suit and what is its effect?
(7) Whether Muhammad Iffat is also the legal representatives of Mst. Muhammad Bibi and Mst.
Meraj Begum and Mst. Rasul Bibi the daughter and widow respectively of Ghulam Muhammad? If so, what is its effect?
5. Vide order dated 26-5-1965 as regards issue No,1 it has been held that Muhammd Zareef respondent has died on 20-6-1964 during the pendency of the appeal. As regards isssue No,2, it has been held that the appeal has not abated as a whole but qua the share of Muhammad Zareef respondent alone. As regards issues Nos.3 and 4 it has been held that although the appeal has abated qua the share of Muhammad Zareef respondent yet the abatement has been set side on the ground that the applicant was not in the know of death and legal representatives of Muhamad Zareef respondent, and his L.Rs, have been brought on record as respondents. As regards issues Nos.5, 6 and 7 it has been held that the decree passed by the learned Civil Judge to the extent of share of Muhammad Bibi and Ghulam Muhammad is nullity in the eyes of law, therefore, the appeal shall be heard and decided excluding their shares. Their names as respondents have been deleted. Rest of the appeal has been ordered to be heard on merits.
6. After hearing arguments in the main appeal on merits learned lower Appellate Court vide judgment and decree dated 30-6-1965 reversed the findings of the learned trial Court on issue No,5 and held that the plaintiffs/appellants were represented by their vendors who were parties to the partition proceedings, therefore, the provisions of Order XXII, Rule 10 will apply hence the partition proceedings are lawful. The appeal hence was accepted and the suit has been dismissed with costs throughout. This judgment and decree has been challenged in R.S.A. No,65/66.
7. Facts giving rise to R.S.A. No,170/66 are, that Administrator Hafizabad Municipal Committee had purchased some land from Muhammad Zareef on 20-6-1935. Later on in the partition proceedings referred to above the Khasra purchased by the Committee had fallen to the share of Sultan Ahmad deceased and as no land in lieu thereof had been given to the plaintiff/appellant, therefore, the suit was filed seeking a declaration to the effect that the Municipal Committee is owner of said Khasra and that the partition proceedings as a result thereof the Municipal Committee was deprived of the said land is ultra vires. The suit was contested by the defendants and was dismissed by the learned trial Court while holding that the partition proceedings are quite lawful and that Administrator, Municipal Committee was not competent to institute the suit. In this suit also during its pendency, Ghulam Muhammad and Mst. Muhammad Bibi defendants had died but their L.Rs, had not been brought on record likewise the other suit. Abovesaid judgment and decree was challenged in first appeal during pendency whereof Muhammad Zareef respondent died whose L.Rs, were not brought on record within limitation, however, delayed application filed for setting aside of abatement and bringing on record his L.Rs, has been allowed by the learned Additional District Judge vide order dated 20-5-1965. The decree passed by the learned trial Court to the extent of share of Mst. Muhammad Bibi and Ghulam Muhammad has been held to be a nullity in the eyes of law. The main appeal thereafter was heard on merits and dismissed vide judgment and decree dated 30-6-1965. Main reason for dismissal of the appeal which has found favour with the learned District Judge, is that more land has been given in the name of Fazal Ahmad, the vendor, which includes the land purchased by the Municipal Committee as well, therefore, no fault can be found with the partition proceedings. Aggrieved of this judgment and decree the plaintiff has filed R.S.A. 170/66. Arguments in both the appeals have been addressed together and both are being disposed of by this consolidated judgment and decree.
8. Dr. A. Basit, Advocate, learned counsel for the appellants in R.S.A. 65/66 has argued that the appellants being bona fide purchasers for value and recorded co-owners in the joint Khata which has been partitioned, were neither impleaded as parties to the partition proceedings nor were given any notice thereof, hence the impugned order is void ab initio and is liable to be set aside; that less area has been given to the predecessor-in-interest of the appellants in the partition proceedings, therefore a question of title having arisen therein the Revenue Court did not have jurisdiction to further proceed with the matter which had to be referred to the Civil Court for decision, that findings of the learned District Judge to the effect that the suit stood abated to the extent of share of Mst. Muhammad Bibi and Ghulam Muhammad defendants is illegal inasmuch as the written arguments in the suit were filed on 2-10-1961 and the case was adjourned for orders to 17-11-1961, but the suit was not decided as the Presiding Officer was transferred and his successor had adjourned the case for arguments to 10-10-1963, on which date the arguments were heard and the suit was decided. Mst. Muhammad Bibi defendant No,31 and Ghulam Muhammad defendant No, 41 in the suit had died on 24-8-1963 i,e, after the written arguments had been submitted in the suit on 2-10-1961 and the case had been adjourned by the previous Civil Judge for announcement of orders on 17-11-1961, therefore, hearing of the case was complete, as such, death of two defendants thereafter would not result in abatement of the suit in part or in toto, hence, the judgment and decree to that effect/extent is not maintainable; that the provisions of Order XXII, Rule 4 having been amended by the Law Reforms Ordinance, 1972, as such, the suit could not have abated on account of death of a party to the suit as the procedural law will apply retrospectively and on this account as well the suit could not have been held to have been abated as against the deceased defendants. In support of his contentions learned counsel placed reliance on cases of Allah Rakha and another v. Muhammad Yusuf and others (PLD 1991 SC 601) and Abdullah and another v. Mian Tafazzul Hussain an another (PLD 1961 Baghdad-ul-Jadid 58).
9. Mr. Atta Ullah, Advocate, learned counsel for the appellant in R.S.A. 170/66 has adopted the arguments addressed by Dr.A. Basit, Advocate, and has further contended that it has been held by the learned Courts below that although the appellants should have been impleaded as parties to the partition proceedings as the Municipal Committee is a recorded owner in the joint Khata yet the order has been upheld merely for the reasons that more land has been given to the predecessor-in-interest of the appellants, which finding according to the learned counsel is not a valid ground for upholding the void order. Learned counsel pray that both the appeals may be accepted, the impugned judgments and decree may be set aside and both the suits may be decreed as prayed for.
10. In reply to the abovenoted arguments addressed by the learned counsel for the appellants, Mr. Abdul Rasheed Chughtai, Advocate, learned counsel for respondents had contended that two of the defendants namely Mst. Muhammad Bibi and Ghulam Muhammad who were necessary parties to the suit being joint owners of the suit land, having died prior to the conclusion of the hearing of the case which was completed on 10-10-1963, their L.Rs, having not been brought on record within time, the suit stood abated in toto, therefore, should have been dismissed on this account but the learned trial Court decreed the suit of the plaintiffs/appellants in this appeal without being even conscious of the factum of the death of the two necessary parties and the learned District Judge illegally held that the suit had abated only to the extent of share of the two defendants although it being joint decree the suit had to abate in toto as held in the case of Wali and 2 others v. Manak Ali and 2 others (PLD 1965 SC 651); that the plaintiffs/appellants in Appeal No,65/66 having purchased the land from the joint Khata during the pendency of partition proceedings which had been initiated on 21-3-1956, were neither proper nor necessary parties and as admittedly the partition proceedings were held after impleadment of all the recorded owners, issuance of notice to them and giving them full opportunity of hearing, no fault can be found with the order of partition. Similarly the Administrator, Municipal Committee also has been throughout associated with the partition proceedings; has never raised an objection to the legality and vires thereof in the hierarchy provided under the Land Revenue Act, therefore, shall be deemed to have accepted the validity thereof and as the land purchased by the Municipal Committee has been included in the Khata of their predecessor-ininterest who were parties to the partition proceedings it cannot be said that the partition proceedings in any manner are defective on account of initial nonimpleadment of the Administrator as a party to the partition proceedings. It is hence prayed that the judgment and decree impugned in these appeals are unexceptionable, therefore, are not liable to be interfered with in the second appeals.
11. I have considered the arguments addressed by the learned counsel for the parties and have perused the record. Application seeking partition was filed by Sultan Ahmad son of Muhammad Azam co-sharer on 21-3-1956. Mode of partition was settled vide order dated 10-8-1957 and order of partition was passed on 25-1-1958. Mutation of partition on the basis thereof was sanctioned on 11-3-1960 and possession thereunder was delivered on 26-6-1960 (Exh.D1). The appellants in Appeal No, 65/66 had purchased agricultural land out of the joint Khata vide sale-deed Exh.P1 on 1-9-1956 mutation on the basis thereof was sanctioned in their name on 4-6-1957, therefore, they were not recorded owners on the date on which the partition proceedings had been initiated and the notice had been issued to the recorded co-owners of the joint Khata hence as per provisions of section 113 of the Land Revenue Act, as the appellants purchased the property during the-pendency of partition proceedings as such no defence can be found with the partition proceedings on account of their non-implement as their predecessor-in-interest had been admittedly impleaded as party thereto and have been heard who had contested the partition proceedings, consequently the arguments of the learned counsel for the appellants to the effect that the appellants neither have been impleaded as party nor had been heard, hence, the order of partition is illegal, is misconceived and is repelled, and the findings rendered by the learned first Appellate Court in this behalf . Being unexceptionable are upheld.
12. As regards the question of abatement of the suit, the facts are admitted by both the sides. As mentioned earlier in the earlier part of this judgment, that after recording of evidence, the written arguments were filed before the learned trial Court on 2-10-1961 and the case was fixed for announcement of order on 17-11-1961, however, before the order could be announced the presiding officer was transferred and his successor adjourned the case for addressing of arguments to 10- 10-1963, on which date arguments were addressed by the learned counsel for the parties and both the suits were finally decided thereafter. The dates of death of Mst. Muhammad Bibi defendant No,31 and Ghulam Muhammad defendant No,41 in the suit are 18-1-1962 and 24-8-1963 respectively, therefore, necessary parties to the suit had died before ultimate hearing in the suit was concluded. There is no cavil with the proposition that hearing of arguments is not always necessary and hearing of the case shall be deemed to have been complete after the evidence is recorded if no date for addressing of arguments is either fixed or on the date fixed for arguments parties choose not to address arguments as held in case of Abdullah and another v. Mian Tafazzul Hussain and another (PLD 1961 Baghdad-ul-Jadid 58) and case of Allah Rakha and another v.
Muhammad Yousuf and others (PLD 1991 SC 601). In case of Abdullah (supra) at pages 60 and 61 of the report it has been held as under: "3. The provision of law relied upon by learned counsel for the plaintiff-respondents is in the following terms:-- ' Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the-pronouncing of the judgment but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."
' The main question that requires determination is at what stage the hearing of a case concludes for the purposes of this provision. Learned counsel for the appellants urged that the hearing of a case concludes with the conclusion of the arguments and as Mr. Dilshad Ali had heard arguments before passing the decree appealed against and he did this at a time when Haveli Khan was no longer alive and his legal representative had not been brought on the record, the judgment and the decree were a nullity. In support of this contention, learned counsel for the appellants relied on the following decisions:--
(1) Krishan Mills Ltd. v. Sunder Sindh (AIR 1917 Lah. 306).
(2) Maniramlala v. Ambarsingh (AIR 1917 Nag. 99).
(3) Kehr Singh v. Chanda Singh (AIR 1936 Lah. 578) and
(4) Vishvanath Dnyanoba v. Lallu Kabla (4 IC 137).
After going through these decisions I have arrived at the conclusion that the only ones that were relevant are AIR 1917 Nag. 99 and AIR 1936 Lah.
578. I am not prepared to accept the contention of the learned counsel for the appellants that Order XVIII, rule 2 of the Code of Civil Procedure makes the hearing of arguments by the trial Court absolutely necessary because all that can be said on the language used in that provisions of law is that if the parties or their counsel want to address arguments, the trial Court has to give them an opportunity to do so, but the hearing of arguments before disposing of the case is, not essential.
4. Learned counsel for the plaintiff-respondents contended that hearing of arguments was not a prerequisite for the disposal of a suit and, therefore, the hearing of a suit terminates when the evidence of the parties concludes. Just like that of learned counsel for the appellants, this argument of learned counsel for the plaintiff-respondents is too generally worded. It is true that the hearing of arguments is not enjoined on the trial Court by the code of Civil Procedure, but that does not mean that if arguments are heard what is done by hearing them is not a hearing in the case. I am clearly of the view that if arguments are not heard before judgment is passed, the hearing will, for the purpose of Order XXII, rule 6, be deemed to have concluded with the conclusion of the evidence of the parties, but if arguments are heard the stage at which the hearing concludes is the one when arguments conclude. It was next contended by learned counsel for the plaintiff- respondents that even if arguments in a case when addressed were a part of hearing in the case, the hearing in the present suit had concluded when Malik Abdur Rashid agreed that counsel for the parties shall put in written arguments and, therefore, Order XXII, rule 6 of the Code of Civil Procedure could be invoked by the plaintiff-respondents. I cannot accept this contention because it is established that Mr. Dilshad Ali, who succeeded Malik Abdur Rashid, did hear arguments of counsel for the parties before disposing of the suit, and I am clear in may mind that step taken by Mr. Dilshad Ali before disposal of the suit was a part of hearing of the suit and could not be overlooked when considering whether or not Order XXII, rule 6 of the Code of Civil Procedure could be invoked by the plaintiff for the death of one of the defendants before the passing of the decree against him being ignored.
5. Another argument of learned counsel for the plaintiff-respondents may now be dealt with.
' He contended that as even the counsel for defendant No,1 did not bring it to the notice of Mr. Dilshad Ali that Haveli Khan had died before the hearing of arguments and that even in the application under Order XXII, rule 5 of the Code of Civil Procedure which was attached to the memorandum of appeal presented in this Court it had not been mentioned that Haveli Khan had died long before the suit had the 3rd of January, 1961 that it was pleaded that the decree was a nullity by reason of the fact that Haveli Khan had died before it was passed, it should be held that there were sufficient grounds for setting aside the abatement of the suit which automatically took place and as the legal representative of Haveli Khan was already on the record as an appellant, this appeal should be disposed of on merits. The fact that the ground that the decree against Haveli Khan was a nullity on account of his death before it was passed was not taken in the original grounds of appeal can be of no avail to the plaintiff-respondents, because the date of death of Haveli Khan not being controverted, the decree against him in the present case was a nullity in the eye of law and the omission to take a specific ground of appeal to that effect could not clothe it with validity. The other two points mentioned by the learned counsel for the plaitniffrespondent no doubt appear weighty, but it is clear that this Court cannot pass any order with regard to the setting aside of the abatement of the suit which had occurred in the trial Court and an application for setting aside the abatement has to be made in the trial Court."
' In case of Allah Rakha (supra) at pages 603 and 604 of the report it has been held as under: "Leave was granted to consider the question whether the date given for hearing of the arguments was not a step short of 'the conclusion of the hearing' for the purposes of Order XXII, Rule 6, C.P.C.
And hence the suit did not abate for not bringing his legal representatives on the record.
' Sh. Abdul Rashid, learned counsel for the appellants, has submitted that the hearing could not be said to have concluded because hearing of arguments is a part of the proceedings under Order XVIII, Rule 2, C.P.C. Notwithstanding the fact that the death of a party took place after the evidence was closed as the arguments were still to be proceeding had not concluded.
' We observe that the same plea was raised before the learned Single Judge also but it was repelled relying on the judgment of the West Pakistan High Court in Abdullah and another v. Mian Tafazzul Hussain and another PLD 1961 Baghdad-ul-Jadid.
58. In this case too, the question was whether the hearing of a case concluded only after the conclusion of the arguments and it was held that the hearing of arguments is not enjoined on the Court by Civil Procedure Code, 1908 and all that can be said on the language used in Rule 2 of Order XVIII, C.P.C. Is that if the parties or their counsel want to address arguments, the trial Court has to give them an opportunity to do so, but the hearing of the arguments is not essential before disposing of the case. It was further held that if the arguments are not heard before the judgment is passed the hearing will, for the purpose of Order XXII, Rule 6 of the Civil Procedure Code, 1908 be deemed to have concluded with the conclusion of the evidence of the parties, but if the arguments are heard, the stage at which the hearing concludes is the one when arguments conclude.
' In this case, although a date was given for hearing of the arguments but none of the parties appeared to address the arguments which showed that in fact they were not interested in addressing the arguments and, indeed, did not wish to address arguments. In these circumstances, the Courts below were right in considering that for the purposes of Order XXII, Rule 6, C.P.C. The hearing will be deemed to have concluded with the conclusion of the evidence of the parties in this case.
' Sh. Abdul Rashid could not cite any authority in which a different view than that taken in PLD 1961 BJ 58 has been taken by any Court in Pakistan and we consider that there is no need to unsettle the settled law which appears to be based on good sense and is also otherwise quite reasonable.
' The result is that no case for interference has been made out. This appeal is, therefore, dismissed but since no one has appeared to contest it, there shall no order as to costs."
' Similar view has been taken in case of Muhammad Yaqoob v. Shamsul Haq and 2 others (1984 CLC 3312) by a learned Single Judge of this Court, wherein at pages 3315 and 3316 of the report it has been held as under:-- "On merits as well, I do not agree with the learned counsel that the petitioner had the right to be impleaded as a party to the proceedings. It is not disputed that after recording the statement of Insar Ahmad, Advocate, Saleh Muhammad, Arbitrator and Khizar Hayat, the general attorney, the matter was fixed for order for 14th April, 1982. The argument of the learned counsel for the petitioner that as the application for impleading was filed and as the proceedings thereon were taken, it cannot be said that the hearing had concluded and that no judicial proceedings were taken in the interval between 27th March, 1982 and 14th April, 1982, the date on which the judgment was to be pronounced. He argued that the proceedings on the application for impleading having been taken, the view expressed in the case of Kehr Singh (supra) applies. In the aforenoted Lahore case, the facts were that the suit was tried and arguments were finished on 7th July, 1932 and 14th July, 1932 was fixed for delivery of judgment. It so happened that the trial Judge at the suggestion of some of the parties decided to inspect the locality. He obtained necessary permission of the District Judge and fixed a date for local inspection. The parties and their pleaders were which present and measurements were taken with the help of Revenue Records which were specifically sent for. These proceedings went on right up to the month of August, 1932, and in the meantime on 22nd July, 1932 one of the plaintiffs died. His legal representatives were brought on record and the trial Court on 7th November, 1932 decreed the plaintiff's claim. The defendants in the appeal pointed out that as the legal representatives of Kehr Singh, one of the plaintiffs, had not been brought on record in the trial Court, the whole suit abated. In these circumstances, dealing with the submission that the death of Kehr Singh had not made any difference because he died between the conclusion of the hearing and the pronouncement of the judgment, as according to them the hearing concluded on 7th July, 1932, it was pointed out that a series of proceedings were taken after 7th July, 1932. In view of the above-noted circumstances, the learned Judge observed that, 'it cannot be said that the hearing had concluded on 7th July, 1932 and no judicial proceedings were taken in the interval between that date and the date on which the judgment was pronounced.
' Learned counsel sought to rely on the aforesaid observations by adding that judicial proceedings in the instant case were also held on the application moved by the petitioner and as such, the rule laid down in Kehr Singh's case fully applies. The judicial proceedings contemplated in the aforesaid precedent mean 'all the proceedings which lead to the disposal or decision of the suit as such because the hearing of a case cannot be said to be concluded where anything remains to be done or finished by either party as a basis for consideration which is to end in judgment. See Lachmi Narayan v. Balmakund AIR 1924 PC 198, Manohar Das v. Birandari AIR 1936 Lah. 280 and Jungli Lall v. Laddu Ram Marwari AIR 1919 Pat.
430. Thus, the hearing in the context of Order XXII, rule 6, C.P.C. Refers to all the stages of the trial of suit, namely, the setting of issues, taking of evidence and hearing of arguments or other proceedings tending to a final adjudication of a suit."
13. Examined the case in hand on the touchstone of the law declared in the aforementioned case it become crystal clear that hearing in the case in hand was not completed before 10-10-1963 and as two necessary parties to the suit referred to above had died on 18-1-1962 and 24-8-1963 and their L.Rs, were not impleaded within period of limitation prescribed under the law, the suit stood abated in toto and not only to the extent of share of the deceased defendants. Partial abatement shall take place only if the two decrees are not inconsistent and can independently stand. In the case in hand if the suits are decreed against the remaining defendants/respondents, it shall only be possible if the order of partition as a whole is set aside as each co-owner has a right to get the partition of every inch of joint property, therefore, if the order of partition to the extent of share of two defendants is upheld that would amount to depriving them and also other co-sharers benefit of having the joint land partitioned, therefore, two contradictory decrees shall have to be passed, if the view taken by the learned District Judge is upheld. The above taken view finds support from law declared in case of Wali and 2 others v. Manak Ali and 2 others (PLD 1965 SC 651) at page 656 of which report it has been held as under: "Three grounds have been mentioned in decided cases for holding that there has been ' total abatement', of a suit or appeal. They are--
(i) that the suit or appeal would be imperfectly constituted in the absence of the deceased party;
(ii) that a decision on the merits may result in inconsistent decrees; and
(iii) that an effective decree cannot be passed against the living party."
' Therefore, the findings of the learned District Judge are set aside and it is held that the suit shall stand abated in toto.
14. As regards the arguments of Dr. A. Basit, Advocate, learned counsel for the appellants that the amendment brought in the provisions of Order XXII by virtue of Law Reforms Ordinance, 1972 shall apply retrospectively the same is misconceived and is not in consonance with the settled law on the subject as held in case of Ghulam Haider v. Mst. Raj Bhari and others (PLD 1986 SC 169) wherein it has been specifically held that the principle of abatement will apply to those cases where the death has occurred prior to the death of the abovesaid Ordinance and the period to implead the L.Rs, has expired, hence, there is no substance in the above-referred arguments of the learned counsel for the appellants and does not advance his case, which is as such repelled.
15. As regards the arguments of the learned counsel for the appellants to the effect that the partition order is illegal due to the fact that lesser area has been given to the predecessor-in- interest of the appellants during the partition proceedings, the same has no substance for the reasons that in the partition proceedings while allocating the partitioned land quality thereof is to be kept in view, therefore, balance is to be created vis-a-vis the value of the land and not the extent thereof, as rightly held by the learned first Appellate Court that no fault can be found with the partition order on this score, as such the findings rendered by the learned first Appellate Court in this behalf is upheld.
16. As regards the arguments regarding the fact of formal non-impleadment of Administrator, Municipal Committee as a party to the partition proceedings at the initial stage which has been found as a mater of fact and is also established on record that the Administrator, Municioal Committee has been associated with the partition proceedings and in lieu of the purchased by the Municipal Committee land has been allocated to the Khata of their predecessor-in-interest who has throughout been a party to the partition proceedings. The Administrator had neither challenged the mode of partition nor is the order in the hierarchy as provided under the Revenue Laws, therefore, not entitled to challenge the partition proceedings now before the Civil Court in exercise of its discretionary jurisdiction, for exercise whereof no case has been made out. Even otherwise in view of findings to the effect that the suit stood abated of two defendants who were necessary parties to the suit during the pendency thereof, the case of the appellants is not advanced on the above-referred score as well, hence, concurrent findings of fact rendered by the, two Courts below on this issue are affirmed.
17. Resultantly, for what has been held above, I see no force in both these appeals which are dismissed, however, keeping in view the difficult legal questions involved in these cases, both the parties shall bear their own costs.