' NASIR ASLAM ZAHID, J.---This petition has been filed by the legal heirs of late Sardar Abdul Qayyum and 5 others seeking leave against the judgment dated 11-5-1998 of the Balochistan High Court whereby their revision petition was dismissed. We have heard at length the arguments of Mr. Muhammad. Zafar, -learned Advocate Supreme Court for the petitioners, and, with his assistance, referred to the record.
2. Respondents are Government of Balochistan; Political Agent/Deputy Commissioner, Killa Saifullah; Assistant Commissioner, Muslim Bagh; and Chairman, District Council, Killa Saifullah; and two private persons. The facts of the case have been recited in para. 2 of the impugned judgment of the High Court as follows:-- "Briefly stated the facts of the case are that petitioners/plaintiffs filed a suit for declaration and permanent injunction on 20-5-1991 against respondents /defendants with the averment that petitioners/ plaintiffs and his relatives remained owners of land bearing Khasra No.1948, Khatooni No.29 which according to settlement pertaining to year 1902 was recorded in the name of Ulus Qume Sargarha. It is further averred that in the year l950 some portion of the kind was given to Political Agent Zhob for construction of library and the remaining land remained with petitioners/ plaintiffs as owners but in settlement made in the year 1955-56 the Khasra No. 1948 was mutated in the name of Political Agent due to inadvertent omission and same continued in the name of Political Agent for the settlement pertaining to year 1966-67. It is further stated that the said Khasra numbers were substituted with new Khasra numbers i.e. 1797 and 1806 without any intimation to the petitioners/plaintiffs and they remained unaware regarding the said change in record of rights. It is stated that the respondents/defendants now started construction whereby they came to know that Khasra Nos. 1797 and 1806 was got mutated in the name of Provincial Government. It is further the case of plaintiffs/petitioners that, cause of action arose in the year 1959 and subsequently in the year 1967=68 and fresh cause of action arose to them when official respondents/defendants allotted some portion of the land to private respondents/defendants. The respondents/defendants contested the suit by repudiating the claim of petitioners/plaintiffs and asserted that they were legal owners of the land pertaining to Khasra Nos. 1806/1797 since 1950 and they have also constructed a Library on the land in dispute in year 1955 and subsequently a building for Club was also constructed over the disputed land which remained in their possession and in their name in the settlement record pertaining to year 1967-68 and as such the petitioners/plaintiffs have no right whatsoever regarding the land in question."
' The suit was decreed by the Civil Judge but the appeal filed by the respondents was allowed and, resultantly, their suit was dismissed. As observed, revision petition filed by the petitioners has been dismissed by the impugned judgment of the High Court. It may be noted here that during the pendency of the litigation, plaintiff No.1 Sardar Abdul Qayyum died and his legal representatives were brought on record.
3. In the impugned judgment, the High Court noted that the suit was not filed by Ulus Qume Sargarha and it is also an admitted position that the suit was not filed in a representative capacity by the plaintiffs; contents/provisions contained in Order I, Rule 8, C.P.C. Had not been complied with.
It was further observed by the High Court that the plaintiffs, who were 6 in number could not be aquated to Ulus Qume Sargarha.
' On scrutiny of the evidence, the High Court came to the following conclusions:-- "I have thoroughly gone through the evidence as led by the petitioners/plaintiffs. A careful scrutiny of the statement of Muhammad Asif (one of the plaintiffs) would indicate that he was unaware as to how much land was given for the construction of library to Political Agent. He also failed in giving a proper description of the land in question. He conceded frankly that no application whatsoever was moved regarding correction of entries in the revenue record. He also admitted that the land in question was not under cultivation and no construction was being made upon it. Similarly the statement of Muhammad Umar hardly renders any assistance to the case of petitioners /plaintiffs.
During cross-examination while answering one of the questions he admitted in a category manner that he was unaware regarding the allotment or any lease deed pertaining to the land in question.
It is worthwhile to mention here that description as given by him is contradictory to that of as pointed out by Muhammad Umar. It can thus by inferred safely that they are unaware regarding the exact description of property and the land in question may not be out of place to mention here that Haji Muhammad Anwar (P.W.1) even could not mention the Khasra number of the disputed land. He also failed to point out as to when the settlement was carried out in their lands. He showed his ignorance as to whether settlement was made in the year 1955-56. The deposition of Haji Qalandar (P.W.2) hardly renders any assistance to the case of petitioners/plaintiffs. He could not point out as to how much land was given for the construction of Library. He failed to point out the Khasra number and Khatooni number of the land in question. He mentioned in a categoric manner that the land pertains to Qume Sargarha but suit was never filed in representative capacity. He showed his unawareness as to whether the land in question was mutated in the name of Government vide settlement made in 1955-56 and 1966-67. Jalat Khan (P.W.3) has mentioned in an ambiguous manner that he was not aware regarding land which was given to Qutne Sargarha and besides that he could not mention as to land in question pertained either by Sardar Abdul Qayyum or Haji Abdul Karim. A careful analysis of the entire evidence would show that petitioners/plaintiffs have failed miserably to substantiate their claim by producing cogent and concrete evidence."
4. Mr. Muhammad Zafar, learned counsel for the petitioners, vehemently argued that deceased plaintiff No.1, Sardar Abdul Qayyum, was the head of the Sargarha Tribe and as the land in dispute belonged originally to the tribe and was so entered in the record of rights, he could prosecute the case on behalf of the tribe and once the illegal entries in the name of Government of Balochistan were set aside, the individual rights and extent of such rights of the individual members of the tribe could later on be determined amicably or through proceedings in the nature of partition etc. ' We find no substance in the contention inasmuch as we are of the view that deceased Sardar Abdul Qayyum had no right in law to represent the entire members of the tribe if at all the land at any stage in the past belonged to the tribe to maintain a suit on behalf of the tribe. He may have been a Sardar and it may also be assumed for the sake of argument that he was recognized as Sardar of the tribe, yet under the law he could not maintain the suit. In the context we may refer to a judgment of the Balochistan High Court in the case of Malik Khanan v. Malik Baz Muhammad Khan (PLD 1983 Quetta 30). Petitioner in the cited case had filed a Constitutional petition alogwith an application under Order I, Rule 8, C.P.C. Seeking permission to pursue the proceedings in representative capacity. This right of the petitioner in that case was contested by the respondents.
The claim of the petitioner there was that he was the Chief of the concerned tribe and he had been prosecuting the case of the tribe before the Commissioner/Political Agent and the Shahi Jirgas. The plea of the petitioner to represent the tribe was rejected and it was inter alia observed by the High Court as follows:- "The argument that the petitioner had been presenting the case of the tribe before different authorities has no force. It is common knowledge that the Tribal Chiefs or the Maliks have been taking up the cudgel on behalf of the tribe. Politically they are considered to be the spokesmen of the tribe or the clan. But it does not mean that they represent the tribe as recognized agent before a Court of law or derive by authority to lawfully act on behalf of the tribe in a representative manner. This argument does not carry any weight."
' Approving the above view of the Balochistan High Court it may be observed that late Sardar Abdul Qayyum could not represent and prosecute the suit on behalf of the Ulus Qume Sargarha.
5. As regards the 6 plaintiffs including late Sardar Abdul Qayyum, the admitted position is that they did not produce any document to show what ownership rights they had in the land; what share they had in the said lands and the lands owned by them were also not described so that the same could be identified. The High Court has in some detail, while reappraising the evidence, pointed out the particular deficiencies, infirmities and vagueness in the evidence of the plaintiffs. Mr. Muhammad Zafar, learned counsel for the petitioners, could not controvert any of the said infirmities pointed out in the judgment of the High Court.
' It may be noted here that during the arguments, learned counsel had referred to a judgment of this Court in the case of Saleh Muhammad v. Jumma Khan Agha 1983 SCM R 587. For the proposition that provisions of Order I, rule 8, C.P.C. Being only enabling and permissible in nature are not mandatory in nature, the suit was not necessarily to be instituted in a representative capacity in case there being several persons interested in the suit or proceedings. The reported decision of this Court relied upon by learned counsel for the petitioners does not advance the case of the petitioners as, according to learned counsel, the suit had been filed by the Head of the Tribe in a representative capacity which, as observed, was not competent and secondly petitioners were not able to establish their individual rights and their extent through evidence, documentary and/or oral, in the suit.
6. Finding no substance in this petition, leave is refused and this petition is dismissed.