' The appellants filed a suit for possession of the suit land. It was alleged in the plaint that M/s. Umeeda and Balla sons of Malook, the predecessors-in-interest of the plaintiffs, sold land measuring 12 Kanal and 16 Marlas (khewat land) in favour of Madara son of Kaura through mutation No,16 attested on 20-2-1999. It was specifically pleaded that the said vendors did not transfer share of Shamilat appurtenant to the said land. This land was further alienated and ultimately ended up with the respondents. As a result of the partition of the Shamilat during the consolidation proceedings an area of 796 Kanal and 12 Marlas i,e,, the suit land, was allocated to the respondents. The case of the appellant was that since the sale was without share of Shamlat, the suit land could not have been allocated to the respondents. In their written statement, the respondents accused the plaintiffs Nos.10 and 11 in the suits (sons of the said Madara) to be in connivance with the other plaintiffs; jurisdiction of Civil Court was denied; and the suit was also said to be barred by time. They insisted that the initial sale was with share of Shamilat. Following issues were framed:--
(i) Are plaintiffs Nos.10 and 11 estopped from bringing this suit? OPD.
(ii) Did the parties agree in the consolidation proceedings to the sale in favour of Madara predecessor-ininterest of plaintiffs Nos.10 and 11 to be with shamilat rights? If so, are the plaintiffs estopped from bringing this suit? OPD.
(3) Is the suit barred by time? OPD.
(4) Is the jurisdiction of this Court barred by law? OPD.
(5) Was the sale in favour of Madara vide mutation No, 16, dated 20-2-1969 without shamilat rights? OPP.
(6) Is Mst. Noorai a necessary party to the suit?
(7) Relief.
(8) Whether the suit is barred by the principle of res judicata? OPD.
(9) Whether plaintiff No,12 is not a necessary party to the suit? If not, its effect? OPD.
(10) Whether the plaintiffs have a cause of action? OPP.
(11) Relief.
' Evidence of the parties was recorded. The learned Trial Court dismissed the suit of the petitioners vide judgment and decree, dated 22-11-1973. An appeal filed by petitioners was heard by a learned Additional District Judge, Mianwali, who dismissed the same on 26-3-1978.
2. Mr. Allah Wasaya Malik, learned counsel for the petitioners argues that the impugned judgments and decrees are contrary to law enacted in West Pakistan Land Disposition (Saving of Shamilat)
Ordinance, 1959. Mr. Altaf-ur-Rehman, learned counsel for the respondent, on the other hand, has tried to support the impugned judgments and decrees.
3. I have gone through the records of the learned Trial Court with the assistance of the learned counsel for the parties. It is by now an admitted position and otherwise an established fact on a reading of mutation No,16, dated 20-2-1909 (Exh.P.l) that the sale was made without share of Shamilat. Even the learned counsel for the respondents concedes the said fact. Section 3(1) of the West Pakistan Land Disposition (Saving of Shamilat) Ordinance, 1959 reads as under:--- "(3) Shamilat not included in disposition of land unless specifically mentioned as subject-matter of the disposition.---(1) Notwithstanding any law, usage or custom to the contrary, in any disposition of land, whether testamentary or otherwise, effected by the maker by means of a writing or orally and whether made before or after the commencement of this Ordinance, words or phrase of a general nature, purporting to convey rights or interests, incidental, contingent, or collateral, to that land, shall not be so construed as to include therein the Shamilat or any portion thereof appurtenant to such land, unless such Shamilat or a portion thereof has been specifically mentioned as the subject-matter of the disposition."
' It will, thus, be seen that by no stretch of imagination could it be held in the absence of a specific mention in the mutation that the share of Shamilat is being alienated as well, that the share of Shamilat has been alienated by the said predecessor-in-interest of the appellants. The learned Trial Court while passing its judgment, appears to be simply impressed by the fact that at some point of time the names of Balla and Umeeda stood removed from the Revenue Records and since after the death of Balla and Umeeda no Shamilat land was mutated in favour of their successors, the Trial Court assumed that the Shamilat share had been so alienated. The Trial Court has committed a serious error inasmuch as the wording of the statute reproduced above are so clear as to leave no manner of doubt that unless and until Shamilat has been specifically mentioned as A the subject-matter of the disposition, by no process of reasoning or imagination can a transaction be said to include the Shamilat. The learned Additional District Judge found a much simpler remedy for the purpose. He simply held that Umeeda and Balla did not have a right in the Shamilat. While so observing the learned Additional District Judge conveniently lost sight of the fact that it is the case of the respondent before him that the origin of his claim to the suit land, which admittedly forms part of the share of Shamilat appurtenant to the said land of Umeeda and Balla, is the initial sale by Umeeda and Balla in favour of Madara. I consequently reverse the findings of the learned Courts below on issues Nos. 5 and 10 and hold that the sale evidenced by mutation No,16, dated 20-2-1909 was without Shamilat right.
4. Learned counsel for the respondent vehemently pressed issue No,2. This issue is in two parts. I find that there is no evidence on record and neither has any been referred to by the learned Courts below in their respective judgments in support of the first part of the issue. There is no question of estoppel simply because of the circumstance that plaintiffs Nos.10 and 11 in the suit happened to be the sons of Madara, the vendee from Umeeda and Balla. It is but an established rather admitted fact that the sale was without Shamilat share and so was the sale by Madara in favour of his vendees. Once it is held that the sale was without the share of Shamilat, then the only fact is that the said share of Shamilat remained intact with Umeeda and Balla and came to devolve upon whoever is successor and there is no dispute that the appellants are the successors of said Umeeda and Balla including the said sons of Madara. I reverse the findings on issue No,2 and consequently on issue No,1 as well. The findings on issue No,3 by the Courts below holding the suit to be barred by time are also against law. In almost similar circumstances a suit filed in 1960 to challenge the sale made on 26-10-1958 for possession of the Shamilat, which was pleaded to have not been sold, was found to be within time by . The Supreme Court of Pakistan in the case of Ghulam Hussain and others v. Allah Baldish and others (1991 SCM R 1386). The present suit was filed on 4-7-1964. Admittedly, the Shamilat was partitioned and came in possession of the respondent in the year 1958. The suit was well within time prescribed by Article 144 of the Limitation Act, 1908.
Issues Nos.2, 4, 6 and 8 have not been pressed by the learned counsel for the respondent while issue No,9 is not pressed by the learned counsel for the appellants. Regarding issue No,9, I may observe that misjoinder of any of the parties is not fatal to the suit at all.
5. As a result of the above discussion, this R.S.A. Is allowed, the judgments and decrees of both the learned lower Courts are set aside and the suit of the appellants is decreed with costs throughout.