BASHARAT AHMAD SHAIKH, J.---This appeal has been filed, with leave of the Court, by legal representatives of Muhammad Qasim, Muhammad Afzal and eight others, as well as the legal representatives of Muhammad Amir Khan, Mst. Nazira and six others, to challenge the judgment of the High Court in Civil Appeal No,6/94 titled Mst. Mansha v. Muhammad Afzal and others which was accepted by the High Court on 26th June, 1998. The High Court set aside the judgment passed by the learned District Judge, Bagh on 28th December, 1993 and restored that of learned Sub-Judge, Bagh announced on 28th February, 1993. The dispute between the parties began when Muhammad Zaman, father of respondent Mst. Mansha Bi, executed a gift deed on 6th June, 1961 to transfer his immovable property to respondent Mst. Mansha Bi. Its mutation was attested on 26th June, 1961. Mst. Mansha Bi subsequently transferred the property gifted to her by her father to her husband Sher Alam. The gift deed was registered on 6th May, 1974 and its mutation was attested on 23rd May, 1974. Muhammad Afzal and others, appellants Nos.1 to 9 filed a suit for cancellation of the gift deeds and mutations mentioned above, in the Court of learned Sub-Judge, Bagh on 18th January, 1980. During the pendency of the suit husband of Mst. Mansha Bi, Sher Alam, died. The plaintiffs, Muhammad Afzal and others moved an application in the Court of Sub-Judge Bagh on 6th February, 1988 that defendant Sher Alam had died on 23rd March, 1987 when the case was pending in the High Court. They stated that an application for impleading his legal representatives was moved in the High Court on 14th May, 1987, but till then the legal representatives had not been brought on the record. They attached a list of legal representatives. The application was contested by the other side by stating that no application as averred was moved in the High Court. A certificate from Registry of the High Court was placed on record of the trial Court which was to the effect that no application for bringing on record the legal representatives of deceased Sher Alam was filed in the High Court nor any application was available on record of the High Court. An objection was also raised that the present application was hopelessly time-barred. The learned Sub-Judge rejected the application as being not maintainable and held that since legal representatives of deceased Sher Alam had not been brought on the record the suit had abated.
2: Muhammad Afzal Khan filed appeal before the learned District Judge before whom it was pleaded that two counter suits were pending in the Court of Sub-Judge which had been consolidated and the Additional District and Sessions Judge, Bagh had directed on 16th October, 1986 that the cases be decided together. These pleas were accepted by the learned District Judge and he directed that the two cases may be decided together. The learned District Judge held that application for bringing on record the legal representatives of the deceased was filed in the cross suit titled Mst. Mansha Bi v. Muhammad Feroze Khan which was duly accepted by the Sub-Judge. It was further held that, suits having been consolidated, the legal representatives brought on the record in one case shall be deemed to have been brought on the record in the other case filed by Muhammad Afzal and others. Mst. Mansha Bi filed appeal in the High Court to challenge the order passed by the learned District Judge. A learned Judge in the High Court perused the record and came to the conclusion that there was no order on the record to show that the two suits under reference had ever been consolidated. The learned Judge observed that consolidation has to be express and after consolidation both the cases have to be heard together but both these A elements were missing. The learned Judge observed that interim orders were independently recorded in the case out of which the appeal arose and there was no consolidation. The learned Judge also rejected the plea that an application for bringing on record the legal representatives was filed in the High Court by observing that the certificate issued by the Registry of the High Court was clear on the point and also that no application was available in the file of the High Court. The learned. Judge also dealt with fresh application mentioned earlier and held that it was hopelessly time-barred. Therefore the learned Judge took the view that since Sher Alam deceased was the sole. Owner of the land in dispute, the suit abated on his death. The learned Judge observed that contents of the order of the learned District Judge against which appeal had been filed in the High Court were not borne out by the record and therefore it was set aside. Subsequently the judgment of the learned Sub-Judge was restored.
3. We have heard the arguments of Sardar Rafique Mahmood Khan in support of the appeal but he has failed to persuade us that the view taken by the High Court in any way suffers from infirmity of any kind. The position is clear that the record unmistakably shows that the two suits had not been consolidated at any stage. The learned counsel submitted that in both the files the same dates of hearing were fixed and also that the subject-matter of the B two suits was the same. We regret that we cannot accept the proposition that these two elements make out a case of consolidation. We agree with the 'learned Judge in the High Court that consolidation has to be express. It was rightly pointed out by Raja Muhammad Yunus Tahir, the learned counsel for the respondent, that in one suit there were two survey numbers and in the other there were nine and also that some of the parties were different.
4. Sardar Rafique Mahmood Khan relied on the case titled Abdul Aziz v. Mst. Babu Jan 1990 CLC 1924, a judgment of this Court, and another unreported judgment of this Court in Civil Appeal No,18 of 1992 titled Mst. Azad Jan and others v. Muhammad Rahim Khan and others. In both these cases it was laid down that if two suits are consolidated legal representatives impleaded in one case will be deemed to have been impleaded in the cross case. Since the position is clear that there was no consolidation in the present case, these judgments are of no avail to the learned counsel.
5. Consequently there is no force in this appeal and we order its dismissal with costs in this Court.