' MUHAMMAD YUNUS SURAKHVI, J.---As both the abovementioned appeals arise out of the single judgment of the High Court and common questions of facts and law involved in both the appeals being the same, we dispose them of by this single judgment.
2. The brief facts, giving rise to the above title appeals, are that a plot measuring 100 x 200 feet, situate in Bus Stand near Mirpur Town was jointly allotted to Mir Abdul Wahid and Muhammad Amin Baig (hereinafter to be referred as allottees). They initially transferred the aforesaid plot in favour of Ch. Mehrban, son of Karam Ellahi, through an agreement, dated 14-3-1968. The plot was again transferred by the allottees through an agreement dated 19-11-1977 in favour of Ch. Abdul Hamid, son of Lal Khan. It was further transferred by the allottees to Haji Munshi Khan, the appellant herein. The allottees made a statement in favour of Haji Munshi Khan before the Estate Officer on 28-6-1983 and duly executed pro forma of transfer in respect of disputed plot in his favour. Mir Abdul Wahid, one of the allottees, reaffirmed the transfer in favour of Haji Munshi Khan, appellant herein through affidavit, dated 17-3-1987. The first transferee Ch. Mehrban filed a suit for declaration in the Court of Sub-Judge, Mirpur alleging therein that the plot was transferred to him in the first instance and subsequent transfers in favour of Abdul Hamid and Haji Munshi Khan, the appellant herein, through an agreement or otherwise might be declared as null and void against his rights. Mir Abdul Wahid, one of the allottees, also got his statement recorded as a witness in the Trial Court on 8-9-1997, stating that the plot in dispute was transferred by the allottees (by him and Muhammad Amin Baig) in favour of Haji Munshi Khan and none else. During the pendency of the suit Mir Abdul Wahid, one of the defendants, died on 12-1-1998 and an application was moved in the Trial Court on 7-6-1999 alleging that as the legal representatives of Mir Abdul Wahid were not brought on record within the period of limitation, the suit may be declared to have been abated; the objections were filed to the application stating that as Mir Abdul Wahid had transferred all his rights in favour of Haji Munshi Khan, it was not necessary to bring his legal representatives, on record. Another application was filed on 11-6-1999 for bringing on record the legal representatives of Mir Abdul Wahid. The learned Sub-Judge after hearing the parties declared the suit to have been abated on 10-7-1999 to the extent of share of Mir Abdul Wahid only; the share of Muhammad Amin Baig, the other transferor, was declared as unaffected. An appeal was filed by respondent Karamat Hussain before the District Judge on 18-7-1999 against the aforesaid order of the Trial Court, whereas Haji Munshi Khan, the appellant herein, filed a revision petition before the High Court contending that the suit abated in toto. The High Court postponed the decision of revision petition till the appeal filed by Karamat Hussain before the District Judge was decided. The District Judge accepted the appeal of Karamat Hussain holding that as the plot had been transferred to Haji Munshi Khan, appellant herein, who was already on record, the legal representatives of Mir Abdul Wahid were not necessary to be brought on the record. Thereafter, the order of District Judge was also challenged before the High Court. The High Court after consolidating the revision petition filed by Haji Munshi Khan appellant herein, and the appeal filed by Jamila Begum, the widow of Mir Abdul Wahid, against Karamat Hussain and others, upheld the findings of District Judge observing that there is a difference between a legal representative and a legal heir, a legal heir may or may not be a legal representative within the meaning of relevant provisions of the Code of Civil Procedure governing the matter and that as the interest has devolved on Haji Munshi Khan, Mir Abdul Wahid, deceased, had no interest left in the plot in dispute, it was not necessary to bring his legal representatives on the record. The High Court while disposing of the revision petition and appeal before it, referred to an authority from Pakistan jurisdiction in support of its view that in the instant case the impleadment of legal representatives of Mir Abdul Wahid was not necessary. It is against the aforesaid order of the High Court that the present appeals have been filed.
3. In support of appeals it was vehemently contended by Mr. Muhammad Yunus Tahir, the learned counsel for the appellants in both the appeals, that the High Court has committed an error in passing the impugned order especially when the shares of Mir Abdul Wahid and Muhammad Amin Baig, the original allottees who transferred the plot, are not ascertainable and as such the suit should have been declared abated as a whole. The learned counsel has contended that the authority cited from Pakistan jurisdiction and relied upon by the High Court is not applicable to the case in hand in view of contents of the plaint filed by Ch. Mehrban against Mir Abdul Wahid and others because he had sought a specific relief from Mir Abdul Wahid, deceased, as is evident from the prayer clause of the plaint. The learned counsel also contended that on the application moved for abetment of suit except Karamat Hussain no other respondents filed their objections, as such it shall be deemed to have been accepted on behalf of respondents that the suit filed by Ch. Mehrban had abated in toto. The learned counsel in support of his contentions relied on Lal Din v.
Administrator (Land) Thal Development, Bhakkar and others 1981 SCMR 890 and Sardar Nazir Ahmad Khan v. Muhammad Shaukat Khan and others 1999 MLD 1193.
4. In reply Raja Muhammad Siddique, the learned counsel for respondents in both the appeals, by controverting the arguments raised by the learned counsel for the appellants, has argued that the High Court has rightly passed the impugned judgment and there is no force in the appeals filed by the appellants. The learned counsel has argued that Mir Abdul Wahid, one of the allottees, transferred all his rights of plot in dispute in favour of Haji Munshi Khan by executing a pro forma of transfer in his favour through an affidavit dated 17-3-1987. The learned counsel also contended that Mir Abdul Wahid made a statement in the Trial Court in favour of Haji Munshi Khan that he and Muhammad Amin Baig, the other allottee, had transferred the plot in dispute in favour of Haji Munshi Khan and none else. Thus, no interest of Mir Abdul Wahid, the original allottee remained vested in him after getting his statement recorded before the Trial Court in favour of Haji Munshi Khan. The learned counsel contended that in such an eventuality it was not enjoined upon the respondents to implead the legal representatives of deceased Mir Abdul Wahid. The learned counsel for respondents relied on Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624, Ahmad Din and 7 others v. Abdul Khaliq and others PLD 1979 Lah.898, Dr. Arshad Mehmood v.
Dr. Mumtaz Hussain PLD 1974 Lah.
312.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that the plot in dispute has been transferred thrice by the allottees and the last transferee is Haji Munshi Khan. The allottees got their statements recorded before the Estate Officer of Mirpur Development Authority, a pro forma of transfer of plot was executed in favour of Haji Munshi Khan, Mir Abdul Wahid also got an affidavit executed in favour of Haji Munshi Khan on 17-3-1987 and later on made a statement while appearing as a witness before the Trial Court on 8-9-1997 that he and Muhammad Amin Baig both had transferred the plot in favour of Haji Munshi Khan and none else and the possession is also stated to have been delivered to Haji Munshi Khan in 1997. The above referred facts make it absolutely clear that allottees relinquished and divested of their all rights and interests in the plot and transferred the same in favour of Haji Munshi Khan who is now holding the plot in his own right as a transferee. What would be the effect of transfer made in favour of Haji Munshi Khan or the previous transferees is a matter sub judice before the Trial Court on which the Trial Court has yet to pass its final verdict in favour of one transferee or the other, but for the purpose of bringing on record the legal representatives of deceased Mir Abdul Wahid, it stands clear that all the rights and interests in the plot which were previously vested in Mir Abdul Wahid now vest in the name of Haji Munshi Khan and he can only represent his interest in the plot who is already on record.
6. We may now refer to the case-law cited by the learned counsel for the parties. In a case cited by the learned counsel for the appellants titled Lal Din v. Administrator (Land) Thal Development Bhakkar and others 1981 SCMR 890 it was observed that abatement is automatic after 90 days and the appeal or suit is dead unless the abatement is set aside within 60 days or any further period extended by aid of section 5 of the Limitation Act. It was also held that application for setting aside the abatement could no doubt be made within the period of 60 days of abatement of the suit but this did not imply that the abetment was liable to be set aside automatically if the application was made within this time. At best, the application for setting aside the abatement could be deemed to be within time but the requirement to establish sufficient cause for not impleading legal representatives within the prescribed time of 90 days was still, to be established. The period of 60 days could even be extended if sufficient cause existed by virtue of section 5 of Limitation Act.
' In another case cited by the learned counsel for the appellants titled Sardar Nazir Ahmad Khan v.
Muhammad Shaukat Khan etc. 1999 MLD 1193 it was observed that non-impalement as party due to ex parte proceedings taken against a party does not furnish a legal ground for dispensing with the requirements of bringing her legal representatives on record as Law Reforms Ordinance, 1972 has not been adapted in Azad Jammu and Kashmir and the authority relied upon Khushi Muhammad v. Mst. Aziz Bibi PLD 1988 SC 259 has been given in view of promulgation of Ordinance of 1972.
' In a case cited by the learned counsel for the respondents titled Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 it was observed that on account of death of respondent pending the appeal the legal representatives who were already parties to appeal in such circumstances the appeal does not abate for non-filing application in time for bringing such legal representatives on record.
' In a case reported as Ahmad Din and 7 others v. Abdul Khaliq and others PLD 1979 Lah.898 it was observed that Mst. Sahib Bibi having admittedly transferred her share to Muhammad, and thus, the entire estate was being represented through the contest raised by Muhammad, it was not at all necessary to either implead Mst. Sahib Bibi or her legal representatives on her death and consequently the dismissal of appeal without the judgment on merits of case on account of death of Mst. Sahib Bibi and absence of her legal representative in the circumstances of the case was in any case held as illegal.
' In a case reported as Dr. Arshad Mehmood v. Dr. Mumtaz Hussain PLD 1974 Lah. 312 it was observed that legal representative means a person in law representing estate of deceased or one who intermeddles with the estate of deceased. "Legal representative" is not the same as that of "next of kin". A person can be legal representative of a deceased person only if he succeeds to his estate.
7. The perusal of the above referred case-law shows that so far as the broader proposition is concerned, it is indeed correct that on the death of defendant a plaintiff is required under law to bring on record his legal representatives within 90 days otherwise the suit abates automatically.
However, an application for setting aside the abatement can be made within 60 days provided a sufficient cause is shown, but in the instant case the proposition requiring determination is somewhat different than the authorities relied upon by the learned counsel for the appellants. The precise point involved in the instant appeals is that one of the transferees, Mir Abdul Wahid, transferred his share in the plot in favour of Haji Munshi Khan the last transferee, and made a categorical statement in his favour admitting the transfer of the said plot in his favour and none of the other transferees. In this view of the matter, as stated earlier, Mir Abdul Wahid, one of the original allottees, has relinquished and divested of his all the legal rights vested in the plot in favour of Haji Munshi Khan, appellant herein, therefore, after his death the transferee Haji Munshi Khan in whose favour the deceased has made statement by relinquishing and divesting of his rights in the said plot shall be deemed to represent the interest of deceased in respect of property transferred to him. It has rightly been observed by the High Court that as the plot in question cannot be inherited by legal heirs of Mir Abdul Wahid in succession in view of transfer of plot in favour of Haji Munshi Khan, the last transferee, the question of there being legal representative of deceased does not arise. In Ahmad Din and 7 others v. Abdul Khaliq and others PLD 1979 Lah. 898 it was observed that where a share-holder transferred her share it was held that a transferee represents the interests and it was not at all necessary to implead the share-holder as a necessary party or her legal representatives on her death. Since Haji Munshi Khan stands in place of Mir Abdul Wahid, the transferor, who is already a party before the Trial Court hence the suit does not abate for non-filing application in time for bringing on record the legal representatives of deceased Mir Abdul Wahid.
8. The contention raised by the learned counsel for the appellants that shares in the plot are not ascertainable hence the suit abates in toto is also not tenable for the reason that the plot was allotted in favour of two persons, namely Mir Abdul Wahid and Muhammad Amin Baig. They successively transferred together the said plot and finally in favour of Haji Munshi Khan which implies that their share was equal.
9. In the light of what has been stated above, we find no fault in the judgments recorded by the High Court and the District Judge, therefore, the same are upheld. The appeals being devoid of any legal force stand dismissed, with no order as to costs.