ORDERKHAWAJA MUHAMMAD SAEED, J.- The supra-title appeal has been filed against the judgment and decree passed on 16th July, 1994, by District Bagh, whereby while dismissing the first appeal of the appellants, he maintained the findings recorded by the leamed Sub Judge, Dhirkot on 24th August, 1993.
2. The facts forming background of the present controversy may briefly be stated as under:--
3. The answering respondents brought a suit for declaration with perpetual injunction in respect of suit land comprising survey number 15, measuring 11 kanals and 10 marlas situate in village Chapriyan Tehsil Dhirkot District Bagh Azad Kashmir in the Court of Sub-Judge, Dhirkot on 31st August, 1986.
4. The plaintiffs had impleded, as proforma-defendants, their three brothers, namely, Muhammad Aslam Khan, Mir Afzal Khan and Muhammad Nazir Khan. It was mentioned in the first para of the suit that the above named defendants were not available as such have been imploded as proforma-defendants. During the pendency of the suit, out of proforma-defendants, Mir Afzal Khan and Muhammad Nazir Khan were imploded in the line of plaintiffs on their prayer vide order of the Trial Court dated 22nd September, 1992. Muhammad Aslam Khan, the third defendant in the suit, was-proceeded ex parte vide order dated 19th July, 1987. On 20th December, 1992, one of the plaintiffs, namely, Muhammad Ashraf Khan admitted in the Court that his brother, Muhammad Aslam Khan had died some one year back: The defendants raised an objection that the suit had abated in toto as within the stipulated period, the legal descendants of the deceased defendant, were not brought on record. The Trial Court, vide order dated 28th September, 1993, held the suit of the plaintiffs to have abated to the extent of Muhammad Aslam Khan deceased. This order was assailed in appeal before the learned District Judge Bagh who vide his order under appeal, maintained the order of the Trial Court. Hence the present appeal.
5. I havg heard the arguments of the learned Counsel for the parties and have also perused the record.
6. The leamed counsel for the appellants argued that it was the duty of the plaintiffs to bring on record, the legal heirs of the deceased within the stipulated period. According to him, Muhammad Aslam Khan deceased, being their brother, his whereabouts were in their knowledge. He further argued that admittedly Muhammad Aslam Khan deceased was buried by his brothers in the village. Any explanation, therefore, tendered by the respondents was not justified. He further argued that suit was brought for declaration as well as perpetual injunction. Thus it is clear from its nature that decree for declaration and perpetual injunction was not divisible. If the appeal is allowed, then there is every likelihood that two contradictory decrees shall come into existence. The Courts below have ignored this legal aspect of the case and have fallen in error.
7. While controverting the arguments, the leamed Counsel for the respondents argued that Muhammad Aslam Khan deceased was residing outside the territorial limits of Azad Kashmir. He was proforma-respondent against whom ex perte order was passed on 19th July, 1987. Keeping in view the provisions of Order 9, Rule 7, CPC, ex parte decree ' ould have been passed against him.
Therefore, under the fiction of law, it was not necessary for the plaintiffs to implied his legal heirs in the suit. According to him, even otherwise, the decree for declaration and perpetual injunction was sought against strangers as such can be claimed even by one co-sharer, without impleading the other sharers in the line of proforma-defendants. Therefore, from the nature of the suit, even if, the legal descendants were not brought on record,within the stipulated, period of limitation, this mischief was not sufficient to hold the suit of the appellants to have abated in to.
8. I have considered the respective arguments of the leamed Counsel for the parties and have gone through the record.
9. On 16th March, 1987, Muhammad Afzal and Muhammad Nazir, despite service, failed to appear in the Court as such were proceeded ex parte. Process server reported back that Muhammad Aslam Khan, the third brother was serving abroad, therefore, it was not possible to effect service on him through ordinary means. Later on, when despite service, through proclamation, he failed to tum up before the Court, the Court proceeded ex parte against him, vide order dated 19th September, 1987.
On 22nd September, 1992 the proforma-defendants, namely, Muhammad Afzal and Muhammad Nazir were imploded in the line of plaintiffs. In the meantime, Muhammad Aslam Khan the proforma-defendant died but his legal representatives were not brought on record. On 20th December, 1992, one of the plaintiffs Muhammad Ashraf Khan admitted that his brother Muhammad Aslam Khan has died some one year back. An objection was raised by the defendants that as legal heirs of the deceased were not brought on record within the prescribed periofl of limitation, as such the suit had abated in toto. The Trial Court, as observed earlier, held that suit had abated to the extent of the share of Muhammad Aslam Khan deceased. This finding was upheld by the leamed District Judge vide judgment under appeal.10. In my view, the suit was in fact for perpetual injunction only, ln this regard, the prayer clause is reproduced for reference:- , tX" j U jb* uL# i/V &'* A. d*'>' r{{URDU TEXT }}"-c->
11. Even one co-sharer was legally competent to ask for decree of perpetual injunction against the appellant-defendant. In the light of the averments made in the plaint, the presence or absence of Muhammad Aslam Khan deceased, proforma- defendant or his legal representatives had not any material bearing on the suit of the plaintiffs-respondents. His death, therefore, did not cause any abatement in the suit either partially or in toto.
12. In view of the above, this appeal is hereby dismissed with costs.