' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of a suit for possession or in the alternative, for a declaration and joint possession of the suit land. The plaintiffs had impleaded 11 persons as defendants including Mst. Chiragh Bibi and her mother Mst.
Hussain BIbi. During the pendency of the suit, Mst. Chiragh Bibi died on 27-8-1969. An application for impleading her legal heir was filed on 4-5-1971 alongwith an application under section 5 of the Limitation Act, 1908 for condonation of delay. That application was contested by the defendants.
The learned trial Court framed three issues and recorded the evidence of the parties. Ultimately, it came to the conclusion that the petitioners have full knowledge of death of Mst. Chiragh Bibi and had deliberately withheld the application for bringing on record her legal hairs. Consequently, the application filed by the petitioners was dismissed on 27-11-1972.
2. The respondents moved an application under Order 22, rule 4, C.P.C. Praying that as the heirs of Mst. Chiragh Bibi had not been impleaded as parties, the suit had abated as a whole and, therefore, the same may be dismissed. On that application too, the learned Trial Court framed issues and dismissed the name on 24-2-1973. The order dated 27-11-1972, whereby the application of the respondents' was dismissed, was challenged by filing a revision while the petitioners challenged the order dated 24-2-1973, whereby their application for abatement was dismissed.
3. The learned counsel for the petitioners has argued that the petitioners had no knowledge of the death of Mst. Chiragh Bibi and, in any case, as one of her legal heir was on record in another capacity, the suit did not abate.
4. This contention of the learned counsel is wholly unfounded. From the evidence led by the parties, it was quite clear that the parties were related to each other and were living in the houses adjacent to each other. In these circumstances, the petitioners could not profess ignorance of the death of Mst. Chiragh Bibi.
5. The contention that since Mst. Hussain Bibi, mother of Mst. Chiragh Bibi was on record in another capacity, the suit did not abate, is not supported by law. In Allah Rakha and others v. Nur Bakhsh and others (PLD 1966 Lah. 960), it has been held that presence of one of the legal heirs of the deceased on the record in another capacity does not absolve the contesting parties for making formal application for bringing the legal representatives of the deceased on record within the statutory period.
6. The learned counsel next contended that as Mst. Chiragh Bibi had specified share in the estate, the suit abated to her extent and not in toto. Again this contention is not well-based. Admittedly, the suit was one for possession and in the alterative for declaration. Mst. Chiragh Bibi was a co- sharer in the land. She was a necessary party to the suit and on her death, the suit became incompetent as necessary parties were not on record. Reference in this connection may be made to Wali and others v. Manak Ali and others (PLD 1965 SC 651) and Chulam Qadir and another v. Ditta and others (AIR 1945 Lahore 184).
' As a result of what has been stated above, this petition has no force. It is accordingly dismissed with no order as to costs.