SYED JAMSHED ALI, J.-~ 0n 1.9.1973, Inayat Ali and 11 others filed a suit against Yousuf Ali and 9 others claiming a declaration that house No. 2090-P Ward No. 9, Mohallah Douglaspura, Lyallpur (Now Faisalabad) was jointly owned by the appellants and respondents Nos. 1 to 9 and that the decision dated 14.98.1973 rendered by Inam Ali Shah, who was arrayed as defendant No. 10, was illegal and in-operative qua the rights of the plaintiffs. Permanent injunction was also claimed by way of consequential relief in terms that respondents 1 to 5 be restrained from interfering in the possession of the plaintiff and that the unauthorised additions carried out by them be ordered to be demolished.
2. By way of applications dated 30.11.1973 and, 21.1.1974, plaintiffs Nos. 4 to 8, 10, 11 and 12 applied for withdrawal from the suit. Respondents Nos. 6, 7 and 9 confessed judgment while the suit was contested by defendants 1 to 5 and 10. They filed a written statement and took up the position that by way of the decision dated 14.8.1973, of the President' of Pakistan Peoples Party Douglaspura, the house was partitioned and the parties are in possession of their respective shares. The form of the suit was also objected to.
3. On the pleadings of the parties, necessary issues were framed and the parties led evidence in support of their respective pleas. The learned Trial Court, found that the house in question stood partitioned. It was also held that the plaintiffs had not brought on record the impugned decision dated 14.8.1973, and therefore, no findings could be given without examining the said document. On issue No. 1 the learned trial Court held that the house was in the joint ownership of plaintiffs 1, 5 and 12 and defendants No. 1 and 5. Nevertheless on the basis of his findings on issue No. 4, the learned trial Court held that the house stood already partitioned and, therefore, the plaintiff was estopped to bring the suit, which was, accordingly, dismissed.
4. An appeal was taken up before the learned District Court. The array of parlies reflects that all the plaintiffs were arrayed as appellants and all the defendants as respondents but para 1 of the impugned judgment shows that except for Inayat Ali respondent all others had abandoned the contest. The learned Addl. District Judge set aside the judgment and decree of the learned trial Court with the result that the declaration' prayed for, was granted and the respondents were restrained from making any further alteration in the building in dispute or from dispossessing plaintiff No. 1-respondent from the portion of the house in his possession as a co-sharer. However, the injunction for removing the additions was not granted.
5. Yousuf Ali and 3 others have approached, this Court in the Second Appeal. I have heard the learned counsel for the appellant. Despite notice, nobody appeared for the respondent Inayat Ali.
6. The learned counsel has submitted that decision dated 14.8.1973 was that of a mediator, it was acted upon and therefore the suit filed by Inayat Ali etc was incompetent. He further submitted that even the P.W supported the case of the appellant and that, the learned Addl. District Judge while reversing the judgment and decree of the learned Court did not consider the evidence on record.
7. I have heard the learned counsel and examined the record with his assistance. This appeal is not properly constituted. A perusal of the memo of appeal before the learned District Court shows that all the parties to the suit were party to the appeal. All the plaintiffs had filed appeal through Sheikh Naeem Shaukat, Advocate. Faisalabad and a duly executed Vakalatnama, by all of them in his favour is on the record. The decree sheet of the learned first appellate Court also shows all 12 plaintiffs as appellants.
8. I have also noticed that plaintiffs 4 to 8, 10, 11 and 12 had applied for withdrawal from the suit, but due to opposition of other plaintiffs, they were not allowed to withdraw and issues were framed as is borne out by the order dated 30.9.1973, of the learned Trial Court.
9. I could not see anything on the record of the learned first appellate Court to suggest that any of the appellants before him had withdrawn the appeal. The by the learned first appellate Court enures to the benefit of at least those who were held to be co-sharers by the learned first Court including respondent Inayat Ali. However, except for Inayat Ali, none else was impleaded in the R.S.A. In this view of the matter, this appeal cannot proceed in the absence of the necessary parties.
10. In view of the considerations that the by the learned first appellate Court declares the contesting parties as co-sharers, they have a remedy for Seeking partition of the property and no substantial damage to any one involved and that it is and old matter pending before this Court since 1976, I am not inclined to exercise my power under rule 20 of Order 41 of the C.P.C. Resultantly, this appeal is dismissed with no order as to costs.