' On 20-1-1983 the respondents Nos.1 to 3 alongwith Mehmood Ahmad son of Mst. Ghafooran and Manzooran, the daughters of Ghulam Qadir filed suit against petitioner and Mst. Niamat Bibi, respondent No,4. In the plaint it was stated that the suit-land is owned by the said plaintiffs and the said respondent No,4 being the heirs of late Ghulam Qadir, that 14/15 years ago the said person shifted their residence to another village and the land was given on contract to Inayat Muhammad for 12 years and the respondent No,4 accepted the terms on behalf of respondents Nos.1 to 3 who were minors at the relevant time; that it has now come to their knowledge that the said Inayat got the mutation of sale attested on 18-3-1970 in favour of his son i.e the petitioner. It was further stated that respondent No,4 had never been appointed as a guardian of the minors. With these averments a declaration was sought that the said mutation of sale is illegal and void. The suit was contested by the petitioner who objected that the suit is barred by time; that it is collusive inter se the mother and the children who were the plaintiffs. On merits it was stated that the land had been purchased for consideration. Issues were framed. Evidence of the parties was recorded. Vide a judgment and decree dated 16-1-1988 the learned trial Court partly decreed the suit inasmuch as the suit of the respondents 1 to 3 was decreed against the petitioner while the suit of the said 3 plaintiffs was dismissed. The reason recorded for the said partial decree was that the respondents 1 to 3 were minors at the time of the sale and as such the sale was void. Against the said decree dated 16-1-1988 the petitioner filed a first appeal. It is a matter of record that the other 3 plaintiffs whose suit had been dismissed also filed a first appeal. Both the appeals were heard together by a learned Additional , District Judge, Faisalabad. The learned Additional District Judge found that although the respondents 1 and 2 were minors yet the sale being voidable and not void the suit tiled by them beyond 3 years of attaining majority was barred by time. The appeal filed by the said other plaintiffs was also dismissed. Despite the said finding on the question of limitation, the learned Additional District Judge dismissed the appeal of the petitioner on the sole ground that he had not impleaded the said other 3 plaintiffs in his first appeal. This was done vide a consolidated decree dated 11-3-1992.
2. The said other plaintiffs have not but the petitioner has filed this civil revision to challenge the said judgment and decree of the learned Additional District Judge.
3. Learned counsel for the petitioner relying upon the case of Sarshar Ali v. Roberts Cotton Association Ltd. And another (PLD 1963 SC 244), Haji Sikandar v. Malik Khan Muhammad and another (1973 SCMR 420) and Noor Muhammad v. The State (1983 SCMR 420) argues that in the first instance no relief was asked against the non-impleaded plaintiffs and in the second the said persons have themselves tiled an appeal and both the appeals were heard together and as such the appeal could not be have been dismissed on the sole ground of non-joinder of the parties. - Learned counsel for the respondent on the other hand, relying upon the case of Abdul Qadir and 5 others v. Muhammad Umar and others (PLD 1987 Lahore 232) and Muhammad Suleman v. Abdul Rashid and 13 others (PLD 1987 Lahore 387) had argued that the said letter out plaintiffs were necessary parties and could not have been impleaded after the lapse of the period of limitation for the first appeal. Learned counsel also objects that the civil revision was filed against Niamat Bibi respondent No,4 when she had died on 27-3-1991. Her L. Rs, were impleaded on 16-4-1994 and according to the learned counsel the civil revision has become barred by time and is liable to be dismissed. Relies upon the case of Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286). Further contends that the mutation was entered on 18-3-1970 whereas the certificate of guardianship was issued on 20-3-1970 and as such the sale was void and not voidable.
4. 1 have gone through the records of this case with the assistance of the learned counsel for the parties. There is no denial of the fact that out of the 6 plaintiffs who filed the suit against the petitioner the suit was decreed in favour of the 3 while it was dismissed regarding the remaining 3 plaintiffs. It is also an admitted fact that in the first appeal the said plaintiffs whose suit was dismissed had not been impleaded. It is also a matter of record that the said plaintiffs had tiled their own appeal and as such both the appeals were heard together by the learned Additional District Judge. Another fact which I would like to note is that the first appeal was filed by the petitioner against the judgment and decree of the learned trial Court dated 16-1-1988 on 11-2-1988 i,e, well within time. From the perusal of the impugned judgment of the learned Additional District Judge (relevant discussion in para. 11 thereot) it appears that the objection was taken or the defect was noticed at the time when the appeal was being heard and decided. It further appears that the question of impleadment of the said left out parties did not crop up. As the learned Additional District Judge thought it fit to dismiss the appeal forthwith upon noting or raising of the said objection. Be that as it may, the fact remains that the said persons had also filed an appeal and all the parties were heard. So far as the judgments cited by both the parties are concerned I do find that the judgment reported as 1973 SCMR 420 does support the contention of the learned counsel for the petitioner. In a later judgment in the case of Said Muhammad and another v. M. Sardar and others (PLD 1989 SC 532) the rigid view taken in the case of Labha Ram and others v. Ram Partab and others (AIR 1944 Lah. 76), therefore, followed by this Court consistently, was not approved of.
5. Since in the present case all parties were heard and decision was recorded by the learned Additional District Judge, on all issues I feel that a remand would not serve any purpose. The said finding of the learned Additional District Judge holding the first appeal to be incompetent is accordingly set aside.
6. Coming to the said contention of the learned counsel for the respondents it is true that the sale was reported on 18-3-1970, however, the matter was taken up by the Revenue Officer on 21-3-1970 when he took note of the fact that Niamat Bibi is the certified guardian of the minor vendors. A copy of the said certificate is on record as Exh.D.2. According to this document guardianship Case No,52/2 was instituted on 14-5-1969 and was decided on 11-3- 1970. 1t is true that the certificate was issued on 20-3-1970. However, the certificate was issued pursuant to the orders passed on 11-3-1970 and it cannot be said that Niamat Bibi was not a certified guardian of the minors on the said date. This being so the learned Additional District Judge has correctly held that Article 44 of the Schedule to the Limitation Act, 1908 would apply and suit filed by the respondents Nos.1 and 2 after expiry of 3 years of the date of attaining of majority would be barred by time and is liable to be dismissed , under section 3 of the Limitation Act, 1908, the sale transaction being voidable and not void. Nothing therefore, turns on the said contention of the learned counsel.
7. As to the defect pointed out in this civil revision I find that the lady died on 27-3-1991 when the first appeals were still pending. The petitioner may not be but respondents being children of the lady must have been aware of the said fact but it was not brought to the notice of the Court of Appeal and the L.Rs, were not brought on record. The result was that in the decree sheet prepared by the learned Additional District Judge the name of the lady appeared as a party. In any case the lady was impleaded only as a pro forma defendant in the suit and no relief was claimed against her. Upon a report made on the process that the lady is dead, application for impleading the L.Rs, was filed who were accordingly impleaded. No prejudice stand caused in the matter to the deceased lady or her L.Rs, Besides keeping in view the attributes of revisional jurisdiction and its exercise even non-impleading of the said lady would not be material so far as the decision of the civil revision on the merits is concerned.
8. For all that has been stated above this civil revision is allowed and the result would be that the suit filed by the respondents 1 and 2 as well as stand dismissed while suit only of Mst. Shehnaz Akhtar, respondent No,3 shall stand decreed, in her favor and against the petitioner to the extent of her share in the suit-land. No orders as to costs.