' RAJA MUHAMMAD KHURSHID KHAN, J.-This appeal was originally admitted as a letters patent appeal before a Division Bench of the Azad Jammu & Kashmir High Court. It later on stood transferred by operation of law to the Judicial Board and then in view of the amendment in the Constitution, to this Court.
2. Mst. Begum Noor respondent brought a suit in the Court of Sub-Judge, Muzaffarabad on 22-2- 1960 for possession of land measuring 27 kanals and 6 marlas comprising Survey Nos, 1170, 135 and 162 situate in village Garthama, District Muzaffarabad. She based her claim on the ground that she and pro forma defendants Mst. Bakhat Noor and Alam Noor (her real sisters) being daughters of Kaloo, who died eight years before the institution of the suit, are entitled to inherit the land of their father Kaloo, whose possession was taken forcibly by Habibullah, Nasrullah (since dead) and Muhammad Akbar defendants sons of Jumma, the real brother of Kaloo, five years prior to the institution of the suit.
3. The claim of the plaintiff was controverted by Habibullah, Nasrullah (since dead) and Muhammad Akbar defendants on the ground that Kaloo died in Dogra Regime long before the enforcement of Shariat Act and according to the custom which governed their family at that time, Mst. Begum Noor and other pro forma defendants had lost even their limited right to inherit the property of Kaloo. About Abdullah, their case, in brief, is that though he died during Dogra Regime, her sisters i,e, plaintiff and pro forma defendants are not entitled to inherit his whole property to the exclusion of defendants.
4. The suit was dismissed by the learned Sub-Judge on 29-6-1963 holding that Kaloo and Abdullah had died before the war of Liberation and under custom which governed the family of the parties, plaintiff and pro forma defendants, were debarred to inherit their father's property. On appeal by Mst. Begum Noor, the District Judge upset the judgment of the trial Court on the ground that the trial Court failed to give finding on some issues. The case was remanded to have finding on those issues as well. The Sub-Judge on 20-7-1965 submitted his report about these issues and the learned District Judge on 27-2-1967 dismissed the appeal. The High Court in second appeal struck anew issue on 6-12-1969 :-- "Was the suit land in possession of the various defendants in separate parcels and, therefore, the appeal abates against Nasrullah deceased-respondent alone?" 0. P. P. and remanded the case to the first appellate Court for deciding it after affording the parties opportunity to examine witnesses on the point. It so happened that during the progress of the appeal before the District Judge, Nasrullah defendant son of Jumma died. The legal representatives of Nasrullah were not brought on record within the statutory period of limitation.
The point argued in the first appellate Court was that during the pendency of the appeal, Nasrullah having died and that no proceeding relating to substitution of his legal heirs having, been taken in time, the claim of plaintiffs-respondents had abated against all the defendants-appellants. The learned District Judge gave effect to that contention and held vide his judgment and decree dated 30-1-1971 that the plaintiffs' suit abated as a whole by reason of non-substitution of the heirs of Nasrullah within' the stipulated time and also held that the plaintiffs were not entitled to inherit the property of Kaloo as daughters under custom. Whether the respondents were entitled to get the share as sisters of Abdullah deceased, remained undecided as it was not argued before the learned District Judge.
' Mst. Alam Noor and Mst. Begum Noor went in second appeal before the High Court whereat the learned Single Judge of the High Court vide its judgment dated 10-6-72 upsetting the judgments of both the Courts below, passed a decree for joint possession in favour of Mst. Begum Noor and Mst.
Alam Noor, respectively for a 2/9th share each in 18 kanals 7 marlas of land left by Abdullah deceased. The suit to the extent of the share of Nasrullah was held to have abated. The third sister of Abdullah deceased, Mst. Bakhat Noor, abandoned her claim in favour of defendants appellants and as such she was non-suited.
6. The judgment of the learned Single Judge has been assailed on the grounds:-
(1) That the suit due to the death of Nasrullah abates in totality ;
(2) that the learned Judge in the High Court fell in error in re-opening the case as a whole as no other issue except the date of the death of Kaloo was argued before the learned District Judge and it was conceded by the learned counsel for the respondents thereat that in the event it is proved that Kaloo died before the War of Liberation in 1947, the plaintiffs have no claim to inherit the land left by Kaloo ; and
(3) that the High Court was not entitled to pass a decree in favour of Mst. Alam Noor as she never appealed before the District Judge.
We take up the first point.
' Section 368 of the old Act 14, 1882 gave rise to a number of conflicting decisions on the point. That section was worded :-- "Where the plaintiff fails to make such an application, within the period prescribed therefor, the suit shall abate."
' Ex facie, the language of this section was wide enough and could be construed under the circumstances that the suit abated as a whole. Later on section 368 has been recast in Act 5, 1908, and the phraseology of the corresponding section (Order XXII, rule 4 sub-rule (3) is very different. It reads.
"Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant."
' Thus to say that the whole suit would entirely abate is unsupported by statute which envisages abatement against the deceased defendant only. To, hold otherwise in fact would negative the clear provisions of Order XXII, rule 4, sub-rule (3), C. P. C.
8. We are of the view that the provisions of Order I, rule 9, C. P. C. Have vital bearing on the point. The order reads :- "No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it."
' Under this order, it is clear, that a suit is not to be defeated merely by reason of non-joinder of parties and the Court in every suit has to deal with the matter in controversy as regards the rights and interests of the parties actually before it. There may be cases where the joinder of certain parties is only expedient, and in such cases the death of a party may not be fatal to the rights of the parties before the Court. The possibility, however, cannot be excluded to conceive cases where by reason of the absence of necessary parties there cannot be proper adjudication of the appeal or suit and in the absence of such parties rights and interests of the persons who are actually before the Court cannot be properly and finally determined. In such cases the suit is liable to be dismissed not because the suit has abated under Order XXII, C. P. C. But because the suit ca not be properly heard or disposed of without prejudicing the rights of the parties. Much would depend upon the frame of the suit, nature of the cause of action and relief claimed and the application of this rule shall vary from case to case.
9. It is now settled that where the rights of the plaintiffs and the defendants are ascertained or ascertainable, the death of one or more of them cannot cause the abatement of the entire suit. A suit in such cases shall only abate with reference to such of the plaintiffs or defendants whose legal representatives have not been substituted but rights of other parties shall be adjudicated on the merits of the case.
' Adjudication in the present case relates to property which is distinct and there is no community of interests between the parties. Nasrullah's share with their brothers being 1/3rd is clearly ascertainable and the suit, for non-substitution of the heirs of Nasrullah, cannot as such abate in entirety. Woo' are supported-in our view in AIR 1930 All.
762. In that case it was held that where one out of the several defendants dies and the legal representative is not brought on record within the time allowed by law, the suit abates as against the deceased defendant only if his rights are ascertainable in the property. To the same effect is PLD 1962 Azad J & K 23 (Division Bench case). It was held therein that 'where the shares are defined, the failure to implead a representative of defendant or respondent does not entail abatement of the entire appeal but the appeal would abate only so far the share of the deceased'.
' PLD 1966 Lah. 960 also supports this proposition. It was held therein that where the interests of a deceased defendant could be separated from others the suit shall abate only to the extent of his share.
10. The second contention that the learned Single Judge fell in error in re-opening the case as a whole in passing a decree out of the property of Abdullah in favour of plaintiffs-respondents in our view, is unsupportable in law. The judgment of the learned District Judge, no doubt shows that Syed Zain-ul-Abedin Shah, Advocate for the respondent had abandoned all other issues and focussed his arguments only about the time of the death of Kaloo with the stand that if Kaloo is proved to have died during Dogra Regime, the plaintiffs-respondents have no case.
11. Keeping in view the circumstances of the case, we entertain the belief that the abandonment of other issues was due to either inaptitude of the counsel or lack of his complete grasp of the case.
The appellants have said in para. (b) of their written statement that the plaintiffs have no right to bring a suit for the entire property left by Abdullah deceased (their brother) under Shariat Law, to the total exclusion of the entire body of his heirs including the appellants. Then in para. 1 of the written statement it is written' that the heirs of Abdullah deceased consist of the plaintiff; defendants Nos, 4 and 5 (his sisters) and defendants Nos, 1 to 3 the first cousins of deceased Abdullah. It is thus manifest that defendants admit that inheritance of Abdullah's land shall be governed by Shariat Law and the plaintiffs and pro forma defendants being heirs under Shariat Law, shall get their share out of the property of Abdullah without affecting the shares of defendants who are first cousins of the deceased.
12. The only dispute thus which remained to be determined was about the shares of the parties. To resolve the matter Issue No, 2 which reads:- "What share the plaintiffs who are the sisters of Abdullah get from property of Abdullah according to Shariat" was framed by the trial Court. This is purely an issue of law demanding determination of the shares of the parties accord to Mohammadan Law of inheritance from the property left by Abdullah deceased.
13. It is to be seen whether in the circumstances, plaintiffs-respondents can be bound down by the action of their counsel which does not seem to have been taken with due care and diligence. A pleader's general powers in the conduct of a suit, no doubt includes powers to abandon an issue which in his discretion he thinks inadvisable to press and his client is bound by such action as a situation can arise in which an Advocate may consider proper in the general interest of his client not to press a point but there is one exception to it and that is where concession is erroneously shown by an Advocate on a matter of question of law it does not bind his client and the matter may he raised again at the appellate stage. AIR 1937 Lah. 71 affirms us that the statement on a matter of law made by a counsel is not binding on his client.
14. Besides, an action of a pleader authorised to 'act' on behalf of his client must necessarily be in the proper conduct or the case. If the action of a counsel in abandoning an issue can he construed as not to have been taken in the proper conduct of the case, his client cannot be bound down by his such action. Dealing with the point in PLD 1958 Kar. 458, it was held :- 'Acting' includes all steps which pleader is expected to take in proper conduct of case."
' In view of the state of law, we hold that the abandonment of Issue No, 2 not, being made in the proper conduct of the case, the plaintiffs-defendants are not bound by the action of the counsel and the learned Single Judge in the High Court in the circumstances was competent to re-open the issue.
15. Mr. B. A. Farooqi lastly criticised the judgment of the Single Judge on the ground that the learned Judge erred in passing a decree in favour of Mst. Alam Noor who was a pro forma defendant in the trial Court and was never arraigned as plaintiff or appellant in the trial Court as well as in the first appellate Court. According to him, no valid appeal could be instituted on behalf of Mst. Alam Noor and decree to the extent of her share passed by the High Court has to be reversed. As against this it is contended by Mr. Tariq that a party can join as an appellant even at the stage of appeal. We have given our considered thought to the contention and have come to the conclusion that the argument advanced by Mr. B. A. Farooqi is not well-founded. The provision applicable in such matters is rule 4 of Order XLI, C. P. C. Which reads :- "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, anyone of the plaintiffs or the defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."
' The plain reading of the order shows that when decree appealed proceed on any ground common to all the plaintiffs or all defendants, anyone of the plaintiffs or the defendants can file an appeal from the whole decree and it will be within the powers of the appellate Court to reverse or vary the decree in favour of all the plaintiffs or defendants. We are fortified in our view in PLD 1962 Dacca 23 wherein at page 30, it is observed : "Now coming to the second point it is no doubt true under Order XLI, rule 4 of the Code of Civil Procedure any one of the plaintiffs or the defendants may appeal from the whole decree where there are more plaintiffs and more defendants than one in suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants. It is not clear whether this enabling provision of rule 4 of Order XLI of the Code exonerates the person filing the appeal, from impleading the other plaintiffs or defendants even as a party respondent to the appeal. We need not go into that disputed question but one thing is certain that the appeal must proceed on any ground common to all the plaintiffs or to all the defendants."
' Here before us, Mst. Begum Noor plaintiff claimed decree not only for herself but also for pro forma defendants, her sisters. The contesting defendants are also claiming interest against pro forma defendants too who have common interest with Mst. Begum Noor being their sisters. The appeal thus filed by Mst. Alam Noor before the High Court was a valid appeal on her behalf. But even if she may not have appealed, a decree in her favour could be passed under the provisions of Order XLI, rule 4, C. P. C. Which enables anyone of the parties to appeal from the whole decree when it proceeds on any common ground to all the plaintiffs or to all the defendants.
' In view of the observations made above, the appeal fails which is hereby dismissed. In the circumstances of the case, we pass no order as to costs.