MOHD. SHEIR Versus MOHD. KHAN

By this second appeal, Muhammad Sher appellant (defendant in wait) leas called in question the judgments and decrees passed by the learned trial Court and the first appellate Court on 23‑12‑70 and 6‑7‑71 respectively whereby the suit filed by the paternal uncle of the appellant, namely. Muhammad Khan and his sons for declaration (and injunction) to the effect that Muhammad Khan respondent (plaintiff in suit since deceased) was the owner in possession of the suit land, was decreed.

2. For the purpose of convenience of understanding the facts of the case with reference to the relationship of the parties, it is necessary to put the connection of the parties with each other in the form of a pedigree table which is as follows:‑

ATA MUHAMMAD = died in 1931

Ghat s Muhammad=died in Muhammad Khan=Respondent (plaintiff the War | ‑No. 1) died during of 1914. | the pendency of first

| appeal on 17‑4‑1971)

Muhammad Sher | appellant (defendant) |

|

|

Sultan Muhammad Nawaz respondent (plaintiff No. 3) respondent (plaintiff No. 2)

Legal Representatives of Muhammad Khan (deceased)=respondents

|

|

Rab Nawaz (son)

Fateh Muhammad (son)

Jehan Khan (son)

Muhammad Iqbal (son)

Abdul Razzaq (son)

Fateh Khatun

Pathani (daughter)

Bakht Bhari (daughter)

Hamida (daughter)

Sahib Khatun (Widows)

Fateh Khatun (Widows)

3 The history of the case starts with the advent of this century. Ata Muhammad, the head of the family, was a grantee of about two squares of land in Chak No. 54‑Shumali on Lower Bari Canal, District Sargodha, from Government on Horse Breeding conditions under the Colonization of Government Lands Act. Ghaus Muhammad, the elder son of Ata Muhammad, died during the First World War leaving Muhammad Sher appellant (then a child) as his successor. Muhammad Khan, uncle of appellant, was then helping his father Ata Muhammad in managing the land. It was claimed in the suit that before his death in 1931, Ata Muhammad wanted to compensate Muhammad Khan for his labour and services which in ordinary routine inheritance was not possible as the then prevailing law would have allowed Muhammad Sher appellant, the son of the eldest son of Ata Muhammad, to inherit the entire horse breeding grant. A family `settlement' was, therefore, resorted to in which it was decided by Ata Muhammad that on payment of the dues to the Government and after obtaining the proprietor ship, one square of land would go to Muhammad Khan. However, till the formal grant of proprietary rights, it was further decided that Muhammad Khan would remain in possession of the land in question. As all the members of the family agreed on this settlement, therefore, Muhammad Khan in the above circumstances came into possession of the land under the claim of ownership. On death of Ata Muhammad in 1931, the mutation of the horse breeding grant was sanctioned on the basis of rule of primogeniture in‑ favour of Muhammad Sher appellant. Muhammad Khan however, on account of the family Settlement, remained in possession of that land and continued receiving benefit therefrom. In 1939‑40, the Government decided to grant proprietary rights in horse breeding grants. After few years, both the appellant and his uncle Muhammad Khan, it was further claimed, jointly deposited the proprietary dues in equal share. The proprietary rights were obtained, pre sumably in the name of the appellant only formally but in reality, Muhammad Khan claimed in the plaint, he continued to remain in possession as owner of one square of land because after the grant of proprietary rights the appellant continued to accept and operate the family settlement. At the time of the filing of the suit, i e., in February 1968, Muhammad Khan claimed to be in possession of the suit land and claimed ownership therein on the basis of the family settlement as also adverse possession, but the need for filing the suit was felt by him because as asserted in the plaint the appellant, in connivance with the Patwari, got wrong entries made in his favour in Khasra Girdawari and also failed to get the entries made and corrected in other revenue papers so as to include the name of Muhammad Khan plaintiff as owner of one square of land‑which resulted into an application for, and order of, ejectment of Muhammad Khan and his two sons (co plaintiffs Nos. 2 and 3). It was also claimed that the other two plaintiffs, were cultivating the land under their father who, as explained above, was the owner in possession of the land and as the ejectment orders were intended to be implemented, therefore, the suit for declaration and injunction was filed.

4. Apart from a preliminary objection with regard to proceedings before the revenue authorities and competency of the civil Court to decide the question of possession, the appellant in his written statement admitted his relationship with Muhammad Khan and Ata Muhammad and that his father bad died during First World War but denied that Muhammad Khan had helped Ata Muhammad in managing the land. On the other hand, it was asserted that the latter bad himself brought the entire land under cultivation and fulfilled all the conditions of the grant. The other assertions made in the plaint with regard to the family settlement were denied and at the same time it was averred that Ata Muhammad had no power to make any settlement with regard to the horse breeding grant. It was also denied that the members of the family had agreed on any settlement as claimed by the plaintiffs or that they were concerned with it. The year of death of Ata Mohammad was admitted but it was denied that Muhammad Khan was or continued in possession under any family settlement. The appellant claimed that he himself paid the proprietary dues and obtained the rights. He also denied having endorsed any family settlement by his conduct. On the other hand, he averred that if the plaintiff remained in possession of any piece of the land included in the grant it was as tenant‑at‑will and, therefore, was not entitled to ownership of the land. The appellant also denied the part payment of proprietary dues by Muhammad Khan. The entries in the revenue record were claimed to be in accordance with the factual position qua ownership arid possession, with a further assertion that the appellant was not legally or morally bound to associate Muhammad Khan plaintiff in the ownership of the land by effecting any change in the revenue records. The ejectment order passed against plaintiffs Nos. 2 and 3, which it was stated was upheld up to the Board of Revenue, was claimed to be based on law and facts and because they had been ordered to be ejected, therefore, the appellant accused them of having prevailed upon their father I.e. Muhammad Khan plaintiff, to file the suit with mala fide intention.

5. On the pleading of the parties, following issues were framed:

(1) Whether Ata Muhammad deceased had given land to the plaintiffs by way of family settlement? O. P. P.

(2) Whether the plaintiffs have become owners of the same land by adverse possession for more than 12 years? O. P. P.

(3) Relief.

Both the learned Courts below, after careful consideration of the evidence, decided both the issues against the appellant and decreed the suit whereupon Muhammad Sher filed this second appeal.

6. Before I analyse and deal with the findings of fact which have also been challenged in this appeal, it is necessary to deal with several preliminary objections raised by Mian Muhammad Shafi, learned counsel for some of the respondents, on the questions of limitation and competency of this appe‑11. It is also necessary to state more facts with regard ‑to the proceedings before this Court and the first appellate Court so as to understand the nature of the preliminary objections. The suit was decreed on 23‑12‑70. The first appeal was filed on 12‑2‑71. During the pendency of this first appeal, Muhammad Khan plaintiff/respondent died on 17‑4‑71. The application for impleading the legal representatives was filed on 24‑4‑71 which having been allowed, about half a dozen adjournments were necessitated in order to secure attendance/representation of the legal representatives; which formality having been completed in June 1971 the arguments were heard on 3‑7‑71 and appeal was dismissed on 6‑7‑71; with the result that the judgment and decree of the trial Court was affirmed. This Regular Second Appeal was filed on 23‑11‑71. Through mistake, the learned counsel (Sh. Bashir Ahmad since deceased) instead of impleading the legal representatives of Muhammad Khan as respondents filed the appeal against Muhammad Khan deceased and his two sons, namely, Muhammad Nawaz and Sultan who were the plaintiffs before the trial Court. The reason for this mistake, on the face, at least appears to be the fact that the learned first appellate Court, while dismissing the appeal and preparing the consequential decree in appeal, failed to mention in the judgment and decree (which mistake crept in and continued in the copies subsequently supplied) the names of the legal representatives of Muhammad Khan. His name continued to be mentioned as respondent No. 1. This appeal was heard in motion and admitted on 20‑12‑71. The Process‑server reported in March 1972 that Muhammad Khan had died, therefore, he could not be served; on which two petitions (Civil Misc. Nos. 1406/C & 1407/C of 1972) under Order I, rule 10, sections 151, 152 C. P. C., and Order XXII, rule 4, C. P. C. were filed on 20‑3‑72 for setting aside of the abatement if any, and for impleading the legal representatives, respectively. On 24‑4‑72, the Court issued notices in these applications to the two respondents, namely, Muhammad Nawaz and Sultan sons of Muhammad Khan as also to all the legal representatives of Muhammad Khan listed in para. 4 of Civil Misc. No. 1407/C‑72. It needs to be mentioned here that Muhammad Khan left two widows and several sons and daughters who got divided into two groups‑one, siding with the appellant, and the other with Nawaz and Sultan sons of Muhammad Khan, his co‑plaintiffs. In the mean while, proceedings under the Martial Law (Land Reforms) Regulations commenced. Muhammad Sher appellant, who was shown in the revenue records as the owner, was, it appears, required to surrender the excess land/ units. Actions of the Land Commission Authorities were challenged by bringing forth the dispute which is the subject of the civil litigation. On account of these side proceedings before the Land Commission Authorities, it became necessary to implead those authorities as parties. Consequently, two Civil Misc. Petitions (Nos. 2574/C & 2575/C‑73) were filed by the appellant on 7‑8‑73‑one, for impleading the Land Commission Authorities, and the other for the stay of resumption of any part of the suit land by the Land Com mission Authorities. Vide order dated 8‑8‑73, those authorities were implead ed as respondents and were required to maintain the status quo, subject to notice. As the question had arisen with regard to disposal of the suit land under Land Reforms Regulation, the tenants who could be beneficiaries thereunder filed two separate petitions on 8‑9‑73‑one, Civil Misc. No. 2828/73 for being impleaded as parties and the other, Civil Misc. No. 2829/73 for vacation of the order of status quo. The first one was allowed subject to notice and the second one was ordered to be put up with Civil Misc. No. 2575/73. Yet another set of two petitions was fined by the appellant, namely, Civil Misc. Nos. 477/C‑74 and 478/C‑74 on 18/20‑2‑74 during the hearing of this appeal‑one, for permission to add stamp worth annas eight on appeal and the other, for impleading the legal representatives of Mst. Pathani. Another petition, Civil Misc, No. 789/C‑74 was filed on 20‑3‑74 during the hearing of the appeal by Mr. Zia Mahmood Mirza. learned counsel for Mst. Pathanr, laying information that she, had died leaving three heirs who were her legal representatives. One of them, Muhammad Nawaz (the husband of the lady) had proceeded on Haj and the other two were stated to be minors. It may be straightway noted that Muhammad Nawaz had engaged Mr. Zia Mahmood Mirza to represent their interest. The learned counsel appeared . on behalf of and represented the legal representatives of Mst. Pathani and by way of abundant caution sub sequently informed the Court that on return from Haj, Muhammad Nawaz had ratified the act of, and representation made by, the learned counsel.

7. Mian Muhammad Shafi, learned counsel for some of the respondents, raised the following preliminary objections:‑----

(i) that the applications under Order I, rule 10, C. P. C. (Civil Misc. Nos. 1406/C & `1407/C of 1972) filed by the appellant were not competent, with the qualification that they could not be made at any earlier stage than during the hearing of the appeal;

(ii) that the appeal, as it is, is not competent;

(iii) (a) that the appeal is time‑barred;

(b) that the late filing of application under Order I, rule 10 also made the appeal time‑barred if otherwise it was within time.

Lengthy arguments were addressed in elaboration of the above‑noted contentions. Relying on Municipal Committee, Sonepat v. Dharam Chand and others (A I R 1935 Lab. 632), Teja Singh and another v. Kartar Kaur and others (A I R 1937 Lab. 180 ), Shangara Singh and others v. Imam Dln and others (A I R 1940 lab. 314), Labhu Ram and others v. Ram Partap and others (A I R 1944 Lab. 76 ), Qazi Mehar Din v. Mst. Murad Begum and others (P L D 1951 B J 1) and National Bank of Pakistan v. Pak Enterprisers and others (P L D 1968 Kar. 47 ), it was argued that the attempt to implead the legal representatives of Muhammad Khan respondent under Order I, rule 10, Order XLI, rule 20 or section 151, C. P. C., cannot succeed. As noted earlier, the factual basis of this contention are that in reality Muhammad Khan had died much earlier‑during the pendency of the first appeal‑but on account of mistake, this fact was not noted in the judgment and decree brought under challenge in this appeal wherein the same mistake crept of impleading Muhammad Khan deceased himself as respondent instead of his legal representatives. According to him, rule 20 of Order XLI, C. P. C., could not be of any avail to the appellant because it could be resorted to only during the hearing of the appeal and that too only if it appears to the Court Itself that any person who was a party at an earlier stage and who is interested in the result of the appeal may be made a respondent. But, as the learned counsel thought, a person against whom an appeal has become time‑barred is not interested in the result of the appeal as held in V. P. R. V. Chockallngam Chetty v. Seethai Ache and others (AIR 1927 P C 252 ), therefore, this Court has no alternative but to dismiss the appeal. On the second point, again relying on Teja Singh and another v. Kartar Kaur and others (already referred to above), learned counsel argued that the decree being joint, one decree‑holder‑his legal representatives‑not having been impleaded in time, the appeal itself becomes incompetent. On the question of limita tion, the reasoning of the learned counsel was that the decree impugned in this appeal filed on Z3‑11‑71 was passed on 6‑7‑71. As the legal representa tives of Muhammad Khan deceased had not been impleaded as respondents at the time of filing of the appeal, subsequent petitions filed on or after 20‑3‑72 for impleading the legal representatives would not be of any help to the appellant because, according to the learned counsel, the provisions con tained in Order I, rule 10, Order XLI, rule 20, sections 151 and 152, C. P. C. or section 5 of the Limitation Act are of no help to the appellant as they are not applicable. Thus, apart from the objection that the appeal had incom petently been filed, learned counsel argued, even if certain petitions for impleading legal representatives of Muhammad Khan at subsequent stage be treated as having been made with competence, it had by then become barred by time. One reason why according 'to the learned counsel section 5 of the Limitation Act would not be attracted is that it would apply only to an appeal which was yet to be filed and as, according to him, there was no appeal, therefore, it would n9t be attracted. The second part of the argument of the learned counsel on the question of limitation relates to the payment of stamp duty in this appeal. The copy of the impugned judgment (that of District Judge) was not stamped by one, annas eight, stamp nor there was any requisite certificate by the Stamp‑vendor explaining the non‑supply f one stamp. That being so, the copy was not properly stamped as required Under section 28 of the Court Fees Act. On this premise and relying on Mohammad Fazal Etahl v. Ram Lal and another (A I R 1935 Lab. 124(2)); Har Narain v. Jai Gopal and others (39 P L R 502 ); Shahadat and others v. Hukam Singh (A I R 1924 Lab. 401) ; Imam Din and others v. Sahib Din and others (A I R 1934 Lab. 272 ) and Abdul Shakur v. Khalas Khan, learned counsel con tended that copy of the impugned judgment being improperly stamped, the stamp duty has not been properly paid on the appeal and thus on account of this reason, before the stamp was supplied with Civil Misc. No. 477/C‑74 in February 1974 during the hearing of the appeal, it had already become time barred. Learned counsel also argued in alternative that if at all section 5 of the Limitation Act is held to be applicable, on merits the appellant is not entitled to exercise of discretion in his favour because, firstly, according to him a false affidavit was filed about the time of the knowledge qua impleading of the legal representatives of Muhammad Khan as respondents‑contents of para. 2 of Civil Misc. No. 1407/C‑72 were relied upon in this behalf; that the appellant definitely knew that Muhammad Khan had died and that his legal representatives had already been brought on the file of the first appellate Court; that he bad also known that in the impugned judgment and decree the names of the legal representatives were omitted, therefore, there is no question of the knowledge in this behalf having been gained for the first time on 6‑3‑72. Alternatively, learned counsel contended that the appellant should have applied to the District Judge for amendment of the decree/judgment‑rather he, in fact, resorted to this remedy and an application made in this behalf is still pending before that learned Court and because the aforementioned application is still pending, relying on L. Janakirama lyer and others v. P. M. Nilakanta lyer and others (AIR 1962 S C 633 ), he further contended that unless and until the same is disposed of, this Court cannot do anything in that behalf so as to remove the defect. It may be straightway noted here that later on it turned out to be an admitted position that an objection was raised on behalf of the respondents before the learned Additional District Judge that in the second appeal filed in this Court, an application had also been made for bringing on record the legal representatives of Muhammad Khan and, therefore, the application filed before that learned Court could not be decided. This objection was upheld and for the same reason that applica tion was kept pending so as to await the result of the present appeal and the applications made therein.

8. Sh. Maqbool Ahmad, learned counsel for the appellant, in reply to the preliminary objections, distinguished some of the rulings cited in support of the objections and considered others as in his favour. He argued that the impugned decree was to be prepared by the Court concerned in accordance with Order XLI, rule 35 read with Order XX, rule 6, C. P. C. High Court Rules and Orders, Vol. I, Chapter 11‑B, para. 6 was also referred. The learned first appellate Court, according to the learned counsel, committed serious violation of the law in not including the names of the legal representa tives (which had been brought on its record), in the formal decree and because the appeal is always from the decree, therefore, unless the decree is properly prepared either by the Court concerned or corrected by the next appellate Court (in the present case, this Court), the appeal could not in law be deemed to have been filed against the legal representatives of the decease& till the correction of the decree and the time could not start running till then. Relying on Order I, rule 10, sections 151, 152, 153 read with section 107, C. P. C., and Lachmibai and another v. Dowlatram Devldas and others (A I R 1930 Sind 96) and Brij Inder Singh v. Lola Kanshi Ram and another (AIR 1917 P C 156). learned counsel contended that this Court can and should in the circumstances (as the mistake is accidental) make the correction and as soon as the correction is made, the decree would then become complete and thus the present appeal in the above circumstances can, even though technically filed earlier, be deemed to have ‑ been filed in time after the completion and correction of the impugned decree notwithstanding the fact that during all this legal correcting processes, the decree remained lying on the records of this Court. He also relied heavily on section 5 of the Limitation Act for condonation of delay if it is thought that the appeal was filed against the incorrect decree‑both for the purpose of condoning the delay in filing the application for bringing on record the legal representatives as also, in case for that reason the appeal is prima facie treated as time‑barred, for the purpose of condoning the delay to the appeal itself. He, however, agreed with the learned counsel for the respondents that Order XLI, rule 20, C. P. C., is not attracted to this case as, according to him, it would apply only if there is no mistake. Relying on some of the observations in Mubarak Shah v. Acharaj Ram and others (A I R 1936 Pesh. 192) and Mohammad Shafi and another v. Mohammad Mustaqeem and another (1973 S C MIR‑298), he also contended that there is nothing illegal in the appellant having made an application under Order I, rule 10, C. P. C., for impleading the legal representatives of Muhampiad Khan. He, in particular, analysed the cases in V. P. R. V. Chockalingam Chetty v. Seethai Ache and others and Labhu Ram and others v. Ram Partap and others (both referred to earlier) so as to show that the present situation in this appeal is not at all covered by those rulings. Instead, the Supreme Court ruling in Mohammad Shofi and another v. Mohammad Mustaqeem and another would cover it (situation). He pointed out that the law laid down in Mehar Singh v. Labh Singh (A I R 1932 Lah. 305) wherein reliance was placed on A. Gopala Krishnayya v. Lakshmana Rao (A I R 1925 Mad. 1210), as also in Dr. Dwarkaprasad and another v. Mi. Sajurabai and others (A I R 1958 Madh. Pra. 307) and Sher Mohammad and others v. Khuda Bux and another (P L D 1961 Lah. 579 ) and the commentary on the Civil Procedure Code by D. V. Chitaley, 7th Edition, Vol. II, page 1830 give sufficient support to the proposition that such a complicated situation not due to any fault of the party concerned can be corrected under sections 152, 153 (read, if need be, with section 107, Civil Procedure Code). At this stage of the arguments, both the learned counsel realised that there was considerable case‑law on the point involved. On my asking, learned counsel gave the following comparative study of cases where, according to them, in the situation like the present one section 151 and other remedial provisions of C. P. C. could be applied and those where they could not be applied:‑----

Cases in the first category are:

Brij Inder Singh v. Lala Kanshi Ram and others A I R 1971 P C 1561 Jai Berham and others v. Kedar Noth Marwarl and others A I R 1922 P C 269; Pandit Balgobind v. Sheo Kumar A I R 1924 All. 818(2); (Adusumilli) Gopalakrishnayya and another v. Adivi Lakshmana Rao A I R 1925 Mad. 1210; Lachm1bai and another v. Dowlatram Devidas and others A I R 1930 Sind 96; Mehr Singh v. Labh Singh A I R 1932 Lah. 305; Karim Bux and others v. Khesa and others A I R 1935 Lah. 316; F. O. Verhomal Khemchand and another v. Tahilram Tejasing and others A I R 1935 Sind 214; H. H. Darbar Alabhai Vajsurbhai and others v. Bhura Bhaya and others A I R 1937 Bom. 401; Mahomedally Tyebally and others v. Safiabai and others A I R 1940 P C 315; Shand Lai and others v. Firm Hira Lai Sheo Narain through Ship Karan Das and others A I R 1941 Lah. 402; Dr. Dwarkaprasad and another v. Mt. Safurabai and others A I R 1958 Madh. Pra. 307; Sher Mohammad and others v. Khuda Bux and another P L D 1961 Lah. 579 and Mohammad Shafi and another v. Mohammad Mustaqeem and another 1973 S C M R 298.

Cases in the second category are:

V. P. R. V. Chockalingam Chetty v. Seethai Ache and others A I R 1927 P C 252; Municipal Committee, Sonepat v. Dharam Chand and others A I R 1935 Lah. 632; Teja Singh and another v. Kartar Kaur and others A I R 1937 Lah. 180; Shangara Singh and others v. Imam Din and others A I R 1940 Lah. 3141 Labhu Ram and others v. Ran Partap and others A I R 1944 Lah. 76 and National Bank of Pakistan v. Pak Enterprisers and others P L D 1968 Kar. 47.

On the question of deficiency in court‑fee, learned counsel for the appellant thought that the only defect in this behalf which could at all be noticed by this Court is that there is no certificate attached showing that one eight‑anna stamp was not available, otherwise the value of the stamp axed being eight annas, it cannot be said that the duty has not been properly paid. He relied on some of the observations made in Abdul Shakur v. Khalas Khan (P L D 1955 Lah. 565) and thought that while the first part of that judgment would apply to this case, the second according to him not being correct law would not be attracted. He in this behalf offered that in case an enquiry is thought necessary by this Court to ascertain whether on the relevant day one eight anna stamp was available with the Stamp‑vendor, he is ready to produce witnesses even now. Learned counsel had made enquiries from the persons concerned and made a confident statement that even though they did not want to give affidavits on his asking, they were ready to appear in Court and support the‑ appellant's position. It was also contended by the learned counsel that section 28 of the Court Fees Act did not debar the High Court from giving a direction for putting in a fresh stamp particularly when the office of the High Court received the appeal without raising any objection and because one eight annas stamp has been presented with petition Civil Misc. No. 477/C‑74 filed in February '74 during the hearing of this appeal, the requirement with regard to the stamp duty and State revenues having been satisfied, this question should not be treated as in any way affecting either the competency of the appeal or its having been filed in time. He in this behalf also pointed out that the initial filing of the appeal was so much within time that if an objection had been raised by the office, either another stamp or a certificate would have been supplied before the expiry of the limita tion. Learned counsel in this behalf also relied on cases of Rachappa Subrao Jadhay Desal v. Shidappa Venkatrao Jadhaw Desai (AIR 1918 P C 188) and Nur Akmad v. Mohammad Jan Khan and 3 others (P L D 1972 Pesh. 164). Lastly, he contended that section 149 of C. P. C. empowers the Court in its discretion, which according to him should be liberally exercised, to permit the supply of court‑fee at any stage and on such a permission having been granted and the court‑fee having been supplied, the law presumes that it shall be deemed to have been supplied Ind. paid in the first instance. In this connection, learned counsel also strenuously contended that there is no question of any mala fides or contumacy on the part of the appellant, therefore, this Court should exercise its power under the enabling provisions; and particularly when no objection had been raised by the office of this Court on the question of court‑fee, the appellant should not be punished. Reliance in this behalf was placed on Azizul Haq and others v. Sri Shuhaahi Ghose (P L D 1969 Dacca 171), Jagat Ram v. Misar Kharalti Ram and another (A I R 1938 Lab. 361), Faizullah Khan and another v. Mauladad Khan and others (I L R 10 Lab. 737) and Saif Alt Khan v. Fazl Mehdl Khan and others (1907 P R 123).

9. On the question of adding the legal representatives of Muhammad Khan as respondents in this appeal, the main stress by Mian Muhammad Shaft, learned counsel for the respondents, has been on two rulings, namely, V. P. R. V. Chockalhzgam Chetty v. Seethai Ache and others and Labhu Ram and others v. Ram Partap and others. The others, even according to him, followed either of them. No doubt, on the face, the question before their Lordships of the Privy Council appeared to be similar as in the present case but, on deeper scrutiny, that ruling is found to be distinguishable. In the case before their Lordships, the plaintiff whose suit had been dismissed against all the defendants, failed to appeal against the decree in so far as it affected some of them and allowed the appeal as against them to become time barred. The appellate Court, in the exercise of its discretion, refused to implead those defendants as respondents in appeal because they had acquired valuable right in consequence of the plaintiff's failure to appeal against the decree in so far as it affected them. It was in this background held that a defendant against whom a suit has been dismissed and as against whom the right of appeal has become barred cannot be deemed to be interested fn the result of the appeal filed by the plaintiff against the other defendants. That being so, ordinarily the provision contained in Order XLI, rule 20, C. P. C. enabling the appellate Court to implead a party "interested in the result of the appeal" would not be attracted because a defendant against whom a suit has been dismissed and as against whom the right of appeal has become barred cannot be deemed to be interested in the result of the appeal filed by the plaintiff against the other defendants. I have purposely used the expression "ordinarily", the reason being that their ‑ Lordships did not lay it down as a rigid proposition of law applicable in all circumstances. The tenor of the judgment shows that it would depend upon the circumstances of each case as to whether such a defendant is interested in the result of the appeal or not. In other words, 'it is for the plaintiff/appellant (where a defendant has to be added as respondent in appeal) who applies to the Court to exercise its powers under this rule, to show what is the nature of the interest of such defendant'. This interpretation of the ruling of their Lordships finds support from the last part of their judgment (at page 256 of the report) where the argument, that apart from rule 20 of Order XL, rule 33 thereof may also be attracted, was considered. It was noted that this rule (rule 33) 'empowers an appellate Court to pass any decree and make any order which ought to have been passed or made, and to make or pass such further decree or order as the case may require, and provides, further, that this power may be exercised notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection'. The appellate Court, in the case before their Lordships, had in its discretion refused to take action under Order XLI, rule 33. Without giving any indication that this rule would not be attracted as a legal proposition, their Lordships thought that the discretion having been exercised in one particular manner by the appellate Court concerned, there was no sufficient reason for them to interfere with the refusal of that Court to act under Order XU, rule 33. The following observation in this behalf supports my supposition:‑---

"Here the plaintiff, whose suits had been dismissed against all the defendants, failed to appeal against the decrees in so far as they affected some of them and allowed the appeal as against them to become barred. In these circumstances the appellate Court, in the exercise of their discretion, refused to take action under the rule so as to deprive these defendants of the very valuable right which they had acquired in consequence of the plaintiff's failure to appeal against the decrees in so far as they affected them. Assuming that under this rule the Court in a proper case might add a defendant as respondent for the purpose of passing a decree against him, their Lordships see no sufficient reason for interfering with the refusal of the appellate Court to do so in this instance."

Some direct deductions follow from the ruling of the Privy Council:---

(i) Apart from a passing reference to rule 10(2) of Order I, C. P. C., and section 22 of the Limitation Act, the ruling essentially dealt with the prayer of the plaintiff to add, under Order XLI, rules 20 and 33, those defendants as respondents in appeal filed by him against whom the suit bad been dismissed and the appeal at the relevant time had become time‑barred. That is why, in the concluding sentence their Lordships observed that they were of the opinion that "these appeals fail on both grounds"‑the grounds being, one under Order XLT, rule 20, and the other under Order XU, rule 33, C. P. C.

(ii) Order XLI, rule 20, was not found applicable because, by virtue of sub‑rule (2) of rule 10 of Order I read with section 22 of the Limita tion Act, the defendants who were intended to be impleaded as respondents had acquired valuable right on account of limitation, therefore, in that case it was held that they were not interested in the result of the appeal which had already become time‑barred against them. The important aspect of this part of the ruling is that it was left open, in circumstances of each case, for the plaintiff (the party concerned) to show as to how the respondents, if added, would be interested in the result of the appeal.

(iii) The general provision contained in Order I, rule 10(2) and, for that matter, rule 10(1) as well read with section 107(2), C. P. C., was not intended to be rendered ineffective by the above‑noted interpretation of rules 20 and 33 of Order XLI; because, under Order 1, rule 10(2), the Court could at any stage of the proceedings order that the name of any person, who ought to have been joined as a defendant or whose presence before the Court may be necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added as a defendant. In other words, the application of Order I, rule 10(2) in the case before their Lordships as distinguished from Order XLI, rules 20 and 33 was not canvassed, nor adjudicated upon by, their Lordships.

(iv) The question of condonation of delay, particularly in those cases where the initial omission to implead a particular respondent is on account of any innocent mistake or error, was not considered.

(v) The provisions contained in sections 152 and 153, C. P. C., were not at all considered probably because, in the circumstances of the case before their Lordships, they were not relevant (but in this case, as would be presently shown, the question of correction of innocent mis take and error is most important).

(vi) Similarly, the provisions contained in section 151, C. P. C. in case it would have been held that Order XLI, rules 20 and 33, Order I, rule 10(2), section 153 and/or section 152, C. P. C., would not be attracted to the particular situation, were not considered.

(vii) The implications of sections 5 of the Limitation Act, as and when applicable qua all, the provisions referred to above, were also not considered.

With respect, the net result of the above analysis of the ruling of the Privy Council is that it applied in the circumstances, of the case before their Lordships. Nothing was laid down as law for all times to come and for all cases. Even with regard to interpretation of Order XLI, rules 20 and 33, scope was left open for a party relying on them to show, in particular cir cumstances of a case, either that the party to be added would be interested in the result of the appeal or that the discretion exercised by the appellate Court in refusing to add that party was improper and/or against any principle. As both the learned counsel contended that Order XL1, rule 20, C. P. C., is not attracted to the present case, therefore, I do not feel myself called upon to examine the question whether the legal representatives of Muhammad Khan, in the circumstances of this case, would be interested in the result of this appeal.

10. The second basic authority, which has been referred to or followed in several other decisions, is the Full Bench ruling in the case of Labhu Ram and others v. Ram Partap and others. In a detailed judgment delivered by Din Mohammad, J. (for the Full Bench), the then existing case‑law was considered as also the Privy Council ruling in the case of V. P. R. V. Chockalingam Chetty v. Seethai Ache and others was analysed in detail and considering the same as the correct and entire law on the point, it was held that‑---

"It (the Privy Council ruling) set its seal on the matter in controversy and ruled once for all that if once the time for filing an appeal bad expired, persons who were parties to the original suits but had been left out on appeal could not be added, unless it was shown that they were interest ed in the result of the appeal m any manner.

All those previous authorities which laid down to the contrary were rendered obsolete by this judgment and could no longer be relied upon in support of the propositions of law enunciated therein."

Keeping the same as the premises, the learned Judge gave his own judgment as follows:

"I have no hesitation therefore in staling that I still adhere to the view already expressed by me in my previous decisions that when once time for an appeal has run out, it is not possible for an appellant sub sequently to implead those defendants who were not originally implead ed as respondents in the appeal. I also maintain with all respect that no question of section 5, Limitation Act, arises in such cases.

I am also not prepared to agree with the suggestion that the power vested in an original Court under Order 1, rule 10, C. P. C., can be invoked by an appellate Court by virtue of section 107, subsection (2), C. P. C .

Similarly, I am disposed to think that section 151, C. P. C., too cannot be invoked in such cases. As I read that section, it is a residuary section and not an overriding provision of law. In other words, it comes into play only where no specific provision is made to meet an exigency that arises and cannot be relied upon to enable a Court to disregard a clear provision of law and to perform an act which may otherwise be illegal. If once it is held that so long as the Privy Council judgment as reported in 6 Ragg. 29 holds the day, an appellate Court has no power to add as a respondent a person who was a party to the suit and against whom the appeal is barred, section 151. would not enable the same Court to make the addition although prohibited otherwise."

11. The facts and circumstances of both the cases in the two above considered rulings are similar, at least, in one respect that the omission to implead a party on the part of the appellant was not treated as on account of some clerical mistake or any error arising from any accidental slip or omission nor were they merely cases of defect or error in any formal proceed ing in the suit or appeal. The tenor of the judgments in the rulings clearly shows that the omission to implead certain persons as parties in appeal was treated as otherwise than by way of innocent mistake or error. That being so, it was held in the Privy Council ruling that rules 20 and 33 of Order XU, would not be of any assistance to the party who sought to implead respon dents after the filing of the appeal and expiry of limitation in that behalf. By process of syllogism, their Lordships of the Lahore Full Bench further ruled that rule 10 of Order I read with section 107, C. P. C., having been noticed by the Judicial Committee of the Privy Council, it (further) meant that apart from Order XLI, rules 20 and 33, they were presumed to have excluded it (Order I, rule 10 read with section 107) also for adding such parties in appeal. Proceeding on these assumptions, it was ruled in the Lahore case that specific provisions having been made to deal with certain circumstances (Order XLI, ‑ rules 20 and 33). if a party could not obtain relief thereunder, it could not fall back on the residuary provision contained in section 151, C. P. C. For these very reasons, their Lordships held as a necessary corollary that section 5 of Limitation Act could not at all be attracted to such situations. It might with respect, be noticed here that the view of the Judicial Committee of the Privy Council, as analysed above in the present judgment, in two particular aspects was not even indirectly, departed from by the Full Bench in the otherwise detailed but emphatic judgment. They are : one, that if a party is able to show that the persons sought to be impleaded as respondents were "interested in the result of the appeal in any manner", the Privy Council ruling would not bar their being impleaded; and two, that the application of rule 33 of Order XLI is essentially one of discretion and if the appellate Court exercises the discretion one way or the other, unless this exercise is shown to be improper, the second or still higher appellate Courts would not interfere with such discretion. I would there fore, with profoundest respect, observe that the two rulings have left the scope open may be in a limited sense, for remedial action by the appellate Court. As would be presently shown, there can be situations in which despite the prima facie wide ranging implications of the ruling of the Lahore Full Bench, the cases would not be covered by the barring observations made therein. It is probably for this reason that in more than one rulings after the Lahore Full Bench ruling, on face (only) it would appear as if the law laid down therein has not been strictly adhered to; but, as explained above, there is no question of real departure therefrom. There do arise situations, as in the present case, where the ruling neither of the Privy Council nor of the Full Bench is attracted.

12. In the present case, it goes without saying that the entire contro versy and complication arose out of a serious mistake, though inadvertent, committed by the first appellate Court in not preparing the decree in accordance with its own proceedings wherein the legal representatives of A Muhammad Khan bad already been impleaded. It cannot be lost sight of that Muhammad Khan had died during the pendency of that appeal and if such a controversy, as has been raised in this Court, bad arisen then, the provisions contained in subsection (2) of section 22 of the Limitation Act would have been fully attracted; as the bar of limitation contained in sub section (1) thereof shall not apply to a case where a party is added or substi tuted owing to an assignment or devolution of any interest during the pendency of a suit and/or appeal (principle contained in section 107(2). C. P. C., would apply in case of appeals). The same situation, which had arisen on account of death of Muhammad Khan before the learned District Judge. on account of the afore‑noted mistake, got transposed in the proceed ings before the High Court. If Muhammad Khan had died during the pendency of the appeal filed in the High Court, section 22(2) of the Limita tion Act read with section 146, Order XXII, rules 10, 11, would have undoubtedly applied. If that is so, I fail to see why, if the intervening act of the District Judge of impleading the legal representatives and then by mistake ignoring them while preparing the decree is excluded from considera tion the above law would not be applicable. Therefore, on principle enun ciated in section 22(2) of Limitation Act, it would be competent for this Court to implead the legal representatives of Muhammad Khan as respondents whether suo motu or on an application‑without having any regard to the bar of limitation.

13. Reliance by the learned counsel for the appellant on the ruling of the Supreme Court in the case, Muhammad Shafi and another v. Muhammad Mustaqeem and another, is not misplaced. In the case before their Lordships, the trial Court had dismissed a suit on 26‑2‑1968 as having abated, on account of the death of one of the defendants. On 22‑3‑1968, an applica tion was made under Order XXII, rule 9, C. P. C., for setting aside the abatement. This application was dismissed on 28‑6‑1968. An appeal against this order was dismissed and the High Court also dismissed the revision. It was contended before the Supreme Court that provisions con tained in Order XXII, rule 9, C. P. C., did not apply in that case as the death of the concerned defendants had, in fact, taken place before the filing of the suit. The High Court had held that in such like case, the defect normally could be rectified by taking resort to provisions of Order 1, rule 10, C. P. C. It was thus argued that on the above conclusions of the High Court in this behalf it could not be treated as a case of abatement and the plaintiff should have been allowed to implead the legal representatives of the deceased under Order 1, rule 10, C. P. C. Their Lordships were not impressed by this argument. It was observed that, admittedly, no appeal was filed against the order of the Civil Judge dismissing the suit for abatement. The decree of the civil Court had, therefore, become final. It was; however, ruled that "the proper course for the petitioners was to file appeal against the order of the Civil Judge dismissing the suit and to request the appellate Court to implead the legal representative of the deceased under Order 1, rule 10, C. P. C. As this was not done, the order of the Civil Judge dismissing the suit has become final". If the above ruling is applied to the present case, the death of Muhammad Khan having taken place before the judgment by the learned District Judge, it is not a case of the appellant seeking the setting aside of an abatement as a consequence of death of Muhammad Khan; but the decree in first appeal passed in favour of Muhammad Khan itself has been brought under challenge in second appeal before this Court. Notwithstanding the two rulings analysed earlier, it will have thus to be held that the above ratio in the ruling of their Lordships of the Supreme Court if applied to the facts of this case, an application for impleading the legal representatives of Muhammad Khan would be competent under Order 1, rule 10 read with section 107, C. P. C. To that extent, the observations in the Lahore Full Bench case of Labu Ram relating to assumed exclusion of Order 1, rule 10, with respect, would be deemed to have been impliedly overruled by the above cited ruling of the Supreme Court. Same conclusion would be reached if the Privy Council ruling in the case of Mahomedally Tyebally and others v. Safiabai and others (A I R 1940 P C 215) is kept in view. A Muslim bad brought a suit against his co‑heirs for administration. One of the defendants, who bad the same interest and was in the same position as that of the plaintiff, died and no application was made by the plaintiff, to bring his heirs on the record. While ruling that the suit for administration did not come to an end by reason of abatement as against the deceased defendant, their Lordships of the Judicial Committee were pleased to observe that it is open to the Judge in his discretion under Order I, rule 10, C. P. C , to add as a party to the suit the representatives of a person against whom the suit has abated, for the purpose of giving effect to the rights of the parties. In my view, as analysed earlier, the Privy Council ruling in V. P. R. V. Chockalingam Chetty v. Seethai Ache and others is clearly distinguishable and is not attracted to the facts of the present case. On the other hand, the afore‑cited Privy Council ruling in the case of Mahomedally Tyebally lays down the rule, in cases like the present one, to the effect that in order to give effect to the rights of the parties, the powers of the Court are not in any way restricted by any technicality and the situation can be remedied under Order 1, rule 10, C. P. C.

14. If these rulings of the Supreme Court and the Privy Council are applied to the present case, no doubt the question of limitation would arise ; as sub‑rule (5) of rule 10 of Order I, itself provides that, subject to the provisions of the Limitation Act‑section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. This sub‑rule, which in reality could have been in the form of a proviso, will have to be read alongwith the opening words of sub‑rule (2) which would be attracted in this case, namely, the Court may at any stage of the proceedings, either on or without the application of either party ". Subject to the provisions of section 22 of the Limitation Act, this provision makes it clear that the Court can direct that a person may be joined as a party, subject further to the fulfilment of conditions laid therein, namely "at any stage". In other words; there is no period prescribed for such an action. But still it has to be seen whether section 22 of the Limitation Act would create any bar of limitation in cases like the present one where a party has to be added on account of the death of an existing party due to devolution of interest during the pendency of the proceedings. For that purpose, provisions contained in Order XXII, rules 10 and 11 need to be noticed. They read as follows:‑

"10. Procedure in case of assignment before final order in suit.‑‑‑(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may; by leave of the Court, be continued by or against the persons to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub‑rule (1).

11. Application of Order to appeals.‑In the application of this Order to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal."

There is yet another provision which is directly relevant in this context, namely, section 146, C. P. C., which reads as follows:‑

"146. Proceedings by or against representatives.‑---Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him."

Section 22 of the Limitation Act which, as noted earlier, has an overriding effect on provisions contained in rule 10 of Order I, C. P. C., has two parts- subsection (1) and subsection (2). Under subsection (1), where, after the l institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party. Under subsection (2) it is provided that nothing in subsec tion (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff. A com bined reading of all these provisions shows that if it is not a case of addition/ substitution of a party owing to assignment or devolution of interest during the pendency of a proceeding and a new plaintiff or a defendant otherwise is substituted or added, the bar of limitation would apply with full force and the proceedings shall be deemed to have been instituted against such a person when he is added/substituted. But in case of devolution of interest during the pendency of the proceedings, as is clearly provided in subsection (2),of section 22, the bar of limitation as provided in subsection (1) would not apply. In such a case, it would be permissible to add the party at any stage, of course subject to the general limitation that it should be within reasonable time and at the earliest. This supposition also gets support from the language used in sub‑rule (5) of rule 10 of Order I. If the framers of the rules had only subsection (1) of section 22, Limitation Act, in view then, except for the change of expression "when he was so made a party" to "on the service of the summons", there would be no practical difference between the two provisions, namely, Order I, rule 10(5), C. P. C., and section 22(1) of Limita tion Act. And thus it would not have been even necessary to add sub rule (5). The need for adding sub‑rule (5), in all probability, arose also for the reason that the cases falling under suggestion (2) of section 22 were to be exempted from the rigours of limitati6n: That is why. It was provided in Order I, rule 10(5) that subject to the provisions of section 22, in all such cases, the proceedings against so added defendant shall be deemed to have begun only on the service of summons. Therefore, cases of devolution of interest during the pendency of the suit have been excluded from the rigours of sub‑rule (5), by bringing it under the control of subsection (2) of section 22, Limitation Act, as well. Thus looked at, ‑ the expression "at any stage" used in sub‑rule (2) of rule 10 and the use of expression "be continued" in sub‑rule (1) of rule 10 of Order XXII, get explained that in cases of devolution of interest there would be no period ~ of limitation. This view finds support from Karen Bux and others v. Khesa and others (1) and it would not be out of place to mention here that the Privy Council ruling in the case of V. P. R. Y. Chockalingam Chetty was noticed in this case with the observa tion that the said judgment "relates to the joinder in appeal of a respondent who was a party to the suit under the provisions of Order XLI, rules 20 and 33". It was held that "in the present case all parties to the suit bad been joined and a decree pass‑d. Had the Official Receiver been impleaded in the suit would have been continued with the leave of the Court: see Order XXII, rule 10, C. P. C., and the rule of limitation laid down in sub section (1), section 22, Limitation Act, would have had no application". No elaborate discussion is necessary to state that provisions contained in Order I, rule 10(2) read with sub‑rule (5) and Order XXII, rule 10 read with section 146 of the C. P. C., would apply to the appeals as they apply to the suits by virtue of section 107 as also Order XXII, rule 11, C. P. C.

15. In the light of the above discussion, it has to be held that Muhammad Khan was duly made a party before the first appellate Court. 1 is during the pendency of that appeal that he died and his legal representatives were brought on record, and, this being a case of devolution of interest during the pendency of first appeal, the second appeal can be continued by adding the legal representatives of Muhammad Khan as respondents not withstanding the fact that they were by inadvertent mistake, error and omission, not mentioned in the decree drawn by the learned .first appellate Court; and further that there is no bar of limitation for adopting this course except that the application should have been made within reasonable time. It has not been shown that after the receipt of the report of the process‑server, unduly long time was taken to implead tile legal representatives, of Muhammad Khan. The preliminary objection raised by the learned counsel for the respondents qua the bar of limitation therefore, has to be overruled.

16. The other preliminary objection cannot be de‑linked from the one already‑noticed. The precise argument of the learned. counsel was that tine decree being joint and the legal representatives of one of the decree‑holders not having been impleaded as respondents in this appeal, the entire appeal was incompetent. T have made sufficient comment that it was a case of devolution of interest during the pendency of the first appeal on account of death of Muhammad Khan and the second appeal could be continued by adding the legal representatives at any stage within reasonable time However, the matter can be looked at from another angle as well, in order to see whether the appeal was at the very initial stage filed with competence. The application of section 151, C. P. C., in the present case need not be considered because there are two other specific provisions which would be attracted. They are sections 152 and 153, C. P. C. They read as follows:‑---

"152. Amendment of judgments, decrees or orders.‑Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

153. General power to amend.‑The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amend ments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding."

There was a clerical mistake in the proceedings of the learned first appellate Court in that it failed to include the names of the legal representatives of Muhammad Khan, who had already been brought on record, as the respon dents‑decree‑holders. It is not the case of the respondents that this mistake; t error was not an accidental slip or omission. It is also an admitted position that what the learned first appellate Court could do by way of correction, can also be done by this Court. Therefore, the decree can be corrected even in second appeal so as to include the names of the legal representatives of Muhammad Khan. This would be the correction of an accidental slip or omission resulting in a clerical mistake in a decree and shall be deemed to have been done under section 152 read with section 107, C. P. C. It could have been done at any time without the bar of limitation and even an application in This behalf was not necessary. Consequent upon the correction made under section 152, a further correction could have been made by this Court under section 153, C. P. C., in its proceedings in this second appeal, byway of correcting the names of the respondents so as to bring it in line with the position of parties as achieved by virtue of correction made in the decree under section 152, C. P. C. In Sher Muhammad and others v. Khuda Bux and another, it was held that sections 152 and 153 of the Code of Civil Procedure make it clear that even after a Court has disposed of a suit, it can exercise powers under those sections and indeed a part of section 152 of the Code of Civil Procedure could come into play only after a suit, in the proceedings of which correction is sought, has been disposed of, because till a suit is disposed of, there is neither a judgment nor a decree in that suit except in those cases in which a preliminary decree has to precede the final decree as in cases for accounts. Sections 152 and 153 of the Code confer powers on Courts to make necessary corrections in their proceedings, orders, judgments and decrees, "which powers are unlimited by the law of limitation or in any other manner", and those powers can be exercised even if no application in that behalf has been made to the Court. It was, however, further ruled that it is not necessary that the corrections under sections 152 and 153 would be made ‑always when an application in that behalf is made, without regard to the circumstances of the case. It was, for example, observed that the Court might be reluctant to exercise its unlimited but discretionary powers for the benefit; of such a party who has not taken early steps for necessary correction. Nor will the Court effect amendments in its own proceedings, orders, judgments or decrees if the error is so insignificant that it could not cause any great prejudice to the party asking for the exercise of the power of amendment. "If, however, a party has applied for amendment at as early a stage as possible and the error or omission, which can be corrected by amendment, is of such a nature that it can adversely affect the party making the application, the Court will ordinarily exercise the power because, technicalities notwithstanding, laws of procedure are meant for advancement of justice and not for denying it". The principle that mistake of Court should prejudice no one was also reiterated. I am in respectful agreement with, and adopt, the reasoning for application in the present case, On merits, there is full justification for allowing the corrections. The appellant was not responsible for the clerical mistake committed by the staff of the learned first appellate Court while drawing the decree and likelihood of prejudice to him is undoubtedly there. He made the application for implead ing the legal representatives of Muhammad Khan within reasonable time. Therefore, for these reasons also, with assumed correction of the decree under section 152, the applications for bringing on record the legal representatives of Muhammad Khan, deceased are allowed by way of correcting the proceedings of this Court under section 153 read with section 107, C. P. C.

17. There might be some force in the technical argument of the learned counsel for the appellant that when the appeal was filed in this Court, on account of the clerical mistake committed in the first appellate Court, the legal representatives of Muhammad Khan were not made respondents in the memo. of appeal and till the correction or submission of a corrected decree, at) least formally, the appeal would not be deemed to have been filed against the legal representatives; because there was no formal decree in existence treating them as decree‑holders and beneficiaries under the said decree and further that the time for filing the appeal against those decree‑holders/respondents brought in the decree as corrected would start running at the time of correc tion and thus the appeal would not be time‑barred. But in view of the above findings and consideration and interpretation of the relevant provisions contained in the Civil Procedure Code and Limitation Act, I do not con sider it necessary to go into this technical question. In the light of the above discussion, the objection with regard to competency of the appeal is also overruled.

18. As explained by the learned counsel during the detailed arguments, the third objection raised on behalf of the respondents with regard to limita tion is also linked with the first two objections. According 0 him, the appeal was time‑barred because, at the time the application for impleading the legal representatives of Muhammad Khan was made in March, 1972, the period of limitation for filing the appeal had already expired; therefore, by virtue of delay in filing the application for impleading necessary parties, the appeal became time‑barred. I have already held that there was no question of limitation involved. On various legal considerations, the application could be moved at a later stage but within reasonable time without affecting in any way the limitation qua the actual filing of the appeal in November, 1971 which, it is not denied (if it would have been an ordinary case), would have been within time. As the learned counsel has not succeeded on the question of limitation qua the filing of the application for impleading the legal representatives of Muhammad Khan, therefore, on that score it has further to be held that the appeal could not be treated as time‑barred for filing late application under Order I, rule 10, C. P. C.

19. The learned counsel, however, raised an other entirely independent argument in matter of limitation which is based on his objection to the manner in which the copy of the impugned judgment passed by the learned first appellate Court, has been stamped. It is not the case of the respondent that the court‑fee stamp is deficient. What has been objected to is the form in which the stamps were supplied by the Stamp Vendor. Instead of one eight annas stamp, two stamps were affixed on the copy in contravention of the relevant provisions of the Court Fees Act and Rules. Learned counsel for the appellant did agree that it should have been one eight annas stamp but at the same time asserted that it was not available. He offered to produce witnesses in this Court. The assertion made at the bar was confident and the appellant also supplied the proper court‑fee stamp (one eight annas stamp), therefore, I did not consider it necessary to record evidence in this Court on this question. If one eight annas stamp would have been available, there was no reason why it should not have been supplied. Therefore, it has to be presumed that it was not supplied because of non‑availability. The court‑fee is of a small amount and that is probably why the appellant did not hesitate in supplying the court‑fee twice over. Difficulty might arise in cases where the court‑fee is heavy and the party concerned insists on the initial supply/payment even if improper and defective‑‑to be accepted. In the circumstances of this case therefore the objection remains only a hyper technical one. Be that as it may, even on legal considerations, it cannot be held that because of late supply of one eight annas stamp, the appeal itself became time‑barred. I, with respect, agree with and adopt the observations in Abdul Shakur v. Khalas Khan (P L D 1955 Lah. 565) that rule 4 of the Punjab Court Fee Stamp Rules, 1934, in so far as it lays down a mode of proof through a certificate, is ultra vires section 27 of the Court Fees Act and also that the power to make rules regulating the number of stamps to be used on a docu ment does not include the power to lay down a rule of evidence as to how the non‑availability of the stamp of a certain denomination may be proved. But, with respect, I would also observe that when it was remarked in the said ruling, that it would be necessary to require the person producing the document to furnish evidence that a single adhesive stamp of the required value is not available, and so long as such evidence is not furnished, the High Court would be entitled to reject the document, the same was not intended to be laid down as an unavoidable course in each case. As to what type of evidence would be enough in such like case was not spelled out. Moreover the High Court, it was observed, would be "entitled to reject the document". The choice of the word "entitled" is not without significance. It means only this much that depending upon the material before the High Court, it would be within its competence to reject the document, not that the document shall always be n, Men the failure of the party producing it to furnish a particular type of evidence. As the certificate is one type of evidence, presumptive proof is another type. In this case, nothing has been shown from the respondent side against the presumption that one eight annas stamp would not be available; that is why the same was not supplied. Looked at from the above angle, the supply of two stamps of 25 paisas each was neither illegal nor improper.

20. There is another aspect of the matter. . Keeping In view the time spent in obtaining the copy of the impugned judgment, the appeal in this Court was filed well within time. The office of this Court did not raise any objection with regard to the .improper court‑fee stamp affixed on the impugned judgment. Had it been done, the objection and defect might have been removed within the balance available period of limitation. In Rachappa Subrao fadhav Desai v. Shidappa Venkatrao Jadhav Desai (A I`.R 1918 P C 188), it was held that the Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State. It was not competent to a litigant in a proceeding to utilise the provisions of the Act at an appellate stage not to safeguard the interest of the State but to obstruct the other party. It was held in Nur Ahmad v. Muhammad Jan Khan and 3 others (P L D 1972 Pesb. 164) that if a memorandum of appeal affixed with deficient court‑fee stamps is inadvertently entertained by office, the defect in deficiency of court‑fee could be remedied under section 28 of the Court Fees Act by calling upon the party supplying the court‑fee to make up the deficiency. In this case, the principle laid down in the Privy Council ruling and the course adopted in the Peshawar ruling would both be attracted. The defect, therefore, could be remedied under section 28 of the Court Fees Act, which provides that if any document is, through mistake of inadvertence, received, filed or used in any Court or office without being properly stamped, the Presiding Judge in the case of High Court may, if he i thinks fit, order that such document be stamped as he may direct and, on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance. The additional one court‑fee stamp of annas eight has already been supplied. The application in that behalf was moved with the permission of the Court and there is no doubt about the proposition that it was, through mistake and inadvertence both, that the document was received in the Court without an objection having been raised in this behalf. Therefore, the conditions laid down in section 28 of the Court Fees Act are fully satisfied in this case and I, in exercise thereof, directed that; the document be stamped with the one eight annas stamp supplied by the appellant (at the later stage). That being so, the proceedings on this appeal will have to be presumed as valid as if the copy of the impugned judgment had been properly stamped in the first instance.

21. To the similar effect is the provision contained in section 149 of the Code of Civil Procedure which provides that where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court‑fees has not been paid the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court‑fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. The rulings cited by the learned counsel for the appellant in the case of Azizul Haq, Jagat Ram, Faizullah Khan and others v. Muhammad Sharif (P L D 1968 Kar. 391) support the proposition that it is discretionary with the Court to remove the defect with regard to court‑fee under section 28 of the Court Fees Act and/or section 149 of the Code of Civil Procedure. The only consideration is that the discretion should not be improperly exercised nor it should be a case of loss to the public revenue. In this case, after having carefully considered all the aspects of the case, and assuming that the same is covered by the afore mentioned two provisions, I hold that the initial supply of court‑fee stamps on the copy of the impugned judgment was proper and, in any case, the subsequent supply and acceptance of one eight‑anna stamp has cured the J defect, if any. Therefore, there is no force in the preliminary objection raised by the learned counsel in this behalf either.

22. Some arguments were addressed by the learned counsel for the respondents that the appellant was not entitled to condonation of delay in any of the applications submitted by him in respect either of bringing on record the legal representatives of Muhammad Khan or in other respects including the submission of the one eight‑anna court‑fee stamp. On all these counts, the mistakes appeared clearly to be inadvertent. The appellant had engaged a senior lawyer of repute on the civil side. There was no negligence on the part of the appellant. Learned counsel also raised some arguments that it could have been ascertained at the time of filing of the appeal and that it should also be presumed that the appellant knew the decree drawn by the lower appellate Court, therefore, it would not be a case for condonation of any bona fide mistake. There is no denying the fact that if this fact would have come to the knowledge of the learned counsel who filed the appeal, remedial steps might have been taken there and then. The counsel has since died. Remedial steps were taken by him as soon as he was informed that a report had been received by the office in respect of death of Muhammad Khan. He did not lose any time in this behalf. Keeping all the circumstances I am of the view that if need would have arisen for con donation of delay under section 5 of Limitation Act, I would have done so on merits of the case.

23. Sh. Maqbool Abmad, learned counsel for the appellant, has also challenged the concurrent findings of fact on both the issues reached by the learned Courts below. He contended: that the witnesses produced from the side of the plaintiffs are not clear as to when and in what circumstances Ata Muhammad gave half of the land in his House Breeding Grant to Muhammad Khan plaintiff; that Muhammad Khan himself did not appear to provide best evidence with regard to the family settlement, if any, effected by his father Ata Muhammad; that Sultan (P. W. 7) gave a different story of transaction than the one given by Ghulam Ali and Muhammad Ali P. Ws., that there are discrepancies and improvements in the plaintiffs' evidence on question of possession as also payment of half the transfer price by Muhammad Khan; that Sultan plaintiff was not a competent witness about the family settlement which he himself admitted had taken place before his birth; that the entries regarding non‑payment of batai by Muhammad Khan to Ata Muhammad and/or Muhammad Sher as also the entry that he held the land on account of relationship merely show that he was allowed to enjoy the usufruc and would not support the claim of Muhammad Khan that he was in possession as owner; that according to the entries in the Jamabandis, different area of land was under cultivation with Muhammad Khan and his sons and for some time batal was also paid, therefore. the version about family settlement stands negatived by the Jamabandis; that Muhammad Khan's possession in any case was permissive because he never showed any hostility and it could not be treated as adverse to either Ata Muhammad or Muhammad Sher; that the evidence produced by the plaintiffs on the question of sharing the payment of proprietary dues by Muhammad Khan is discrepant‑in particular it was pointed out that the assertion that` some Paisas were also paid by Muhammad Khan cannot lie true because during the days in question there were no Paisas; and lastly, that the family arrangement relied upon by the plaintiffs is, in reality, is the nature of a settlement which partakes of the qualities of a gift and thus is a transfer which was not permissible on account of bar contained in the Colonization of Government Lands Act as also the rules made thereunder.

24. In reply, Mian Muhammad Shall, learned counsel for some of the contesting respondents, relying heavily on the statement made by Muhammad Sher appellant, himself, contended that the variance in the area held by Muhammad Khan in his possession should not be given any importance because Muhammad Sher admitted that out of two squares and three acres the plaintiffs remained in possession exactly of half the land, i.e., one square and one and a half acres‑the confusion of area in the Jamabandi entries, according to him, therefore might be due to miscalculations (because some acres in the land under Grant are of eight kanals and others, of nine kanals reference in this behalf was also made to a three kanals dera ghair mumkln) or it could be due to machinations of the Revenue staff to confuse and harass the owners; that Muhammad Sher himself admitted that Muhammad Khan was in possession of the suit, land since his youth and because there is no positive proof of payment of batai by Muhammad Khan or his sons, it shows that exactly half the land under the Grant was held by Muhammad Khan as owner, primarily under the family arrangement and also openly in a hostile manner to the interests of Ata Muhammad and Muhammad Sher; that since 1931,‑death of Ata Muhammad‑, no objection was raised for more than three decades, till the other disputes arose between the parties, to Muhammad Khan holding the suit land particularly when he was not paying any batai and his possession was entered in Jamabandis on account of rela tionship; that non‑appearance of Muhammad Khan as a witness is not fatal in the case because, even according to Muhammad Sher's admission, he was about 100 years of age and, as stated by the P. Ws., was seriously ill and deaf‑he was not in a fit condition to make any statement and his death subsequently during the pendency of the appeal supported this assumption; that the statements of the plaintiffs' witnesses as also the entries in the Jamabandis together with the defence evidence have all been considered by the learned Courts below‑there is no question of misreading of evidence and this being a case of concurrent findings of fact the same cannot be challenged on any grounds of misappreciation of evidence; that Muhammad Sher pur ported to surrender the suit land to the Land Commission under the Martial Law Regulation, the latter despite having been impleaded as party have not appeared to defend the surrender‑in these circumstances, when there was no compulsion on Muhammad Sher to surrender the suit land itself, the party if at all interested in reclaiming the land from the possession of the plaintiffs is Land Commission and not Muhammad Sher, his appeal therefore for this reason has become infructuous.

25. Mr. Zia Mahmood Mirza, Advocate learned counsel for some of the respondents adopted the arguments advanced by Mian Muhammad Shafi while Mr. Khokhar and Mr. Gardner, Advocates, learned counsel for some of the other respondents, adopted the arguments advanced by Sh. Maqbool Ahmad, learned counsel for the appellant. They did not advance any independent argument of their own.

26. Except for the argument with regard to bar of transfer of land under Grant covered by Colonization of Government Lands Act, all other arguments advanced in support of this appeal have been noticed by the learned Courts below in one or the other form. About this argument also, it can safely be assumed that it was not pressed at the appellate stage; otherwise there is no reason why the learned Additional District Judge who otherwise wrote a detailed well‑reasoned judgment would have ignored it. Another subsidiary argument, though more properly formulated at this second appellate stage, it appears was at least indirectly present in the mind of the learned Courts below. It relates to the non‑appearance of Muhammad Khan plaintiff as a witness. I agree with the learned counsel for the con testing respondents that there is enough evidence to show that Muhammad Khan, was not in a fit physical state to make a deposition as witness in the case. It is also doubtful whether the appointment of a Commission for his examina tion would have made any difference. However, Sultan P. W., his son, was not cross‑examined in any detail on the nature of the incapacity of Muhammad Khan to appear as a witness. Had it been done, more light would have been thrown on this aspect of the matter. Be that as it may, the fact remains that Muhammad Khan died during the pendency of the appeal and his age at the trial had reached that of senility. Moreover, his son Sultan appeared as a witness and supported the claim/case set out in the plaint to which Muhammad Khan himself was a party. There was no need to duplicate the depositions on behalf of the plaintiffs themselves. Muhammad Khan would have had nothing more to say than what had been stated by his witnesses including his son Sultan. It also cannot be ignored that if he had appeared his deposition would have been criticised as consisting of admissions made in his own favour. Sultan, even though was not a witness to the original family arrangement, his or for that matter his father's statement (if he had appeared). would have needed support of independent evidence, which had been furnished by the other witnesses who appeared on behalf of the plaintiffs. In this case therefore, after having carefully con sidered this aspect of the matter, I am of the view that no presumption can be raised against the plaintiffs (respondents) under section 114 of the Evidence Act for the non‑appearance of Muhammad Khan as a witness.

27. The other argument which was not pressed before the learned Courts below relates to the bar of transfer of subject‑matter of a Grant under the Colonization of Government Lands Act. The argument, it appears, is based on misapprepiation of the claim of the plaintiffs. It was on account of a family arrangement that the original grantee, namely, Ata Muhammad decided upon the change of the normal mode of devolution of inheritance by rule of progeniture. Muhammad Khan had a pre‑existing interest and title in the land, in that out of two sons of Ata Muhammad, namely, Ghaus Muhammad (died in First World War) and Muhammad Khan, only the latter brought the entire land in Grant under cultivation. Obviously, if the entire land consisted of two squares and odd number of acres, person who had broken it so as to make it, culturable had acquired some right in it. It was primarily this pre‑existing right of Muhammad Khan in the suit land which was acknowledged by Ata Muhammad by way of family arrangement. He ha& not made a gift of the land nor the arrangement was in the nature of a settlement which had the appearance of a gift. It is also significant to note that no writing was drawn by Ata Muhammad so as to affect the transfer from his side to Muhammad Khan. The arrangement obviously, without a writing, would be of an acknowledgement by Ata Muhammad of the family arrangement in which the pre‑existing rights of Muhammad Khan in the suit land were acknowledged. Practical and legal shape to this arrangement could be given only after the proprietary rights were obtained and that too by making payment of the proprietary dues. If Ata Muhammad would have survived this stage, the family arrangement would have culminated in a formal documentary transfer of course after he (i e., Ata Muhammad) would have become the proprietor in his own right. He, however, having died in 1931 his place was taken as a substitute by the son of his elder deceased son, namely, Muhammad Sher appellant. It is the case of the plaintiffs (respondents) that after the death of Ata Muhammad, the appellant Muhammad Sher, never objected to the arrangement made by his grandfather till or after 1943 when the proprietary rights were obtained and otherwise too the Grant remained no more under any prohibitory conditions qua transfers attachable to Horse Breeding Grants. It was at this stage that Muhammad Sher was, on account of the earlier arrangement to which he had assented by his conduct for more than a decade, required to go through the technicalitie3 for formal transfer. Muhammad Khan continued to remain in possession under the claim of ownership under an expectation that Muhammad Sher would get the necessary mutation effected in acknowledgement of his (Muhammad Kban's) rights, but this did not happen. Later on, the disputes arose between the parties and litigation started in another channel, namely, the ejectment proceedings initiated by the appellant against the respondents on the basis that they were his tenants. Looked at in the above background and context, it is not the case of the respondents that Muhammad Khan had become full‑fledged owner of the suit land in or before 1931. The claim is that on account of the technical hurdles, only a family arrangement was made wherein Ata Muhammad had acknowledged that whatever his rights and interests in the Grant were, the same belonged half to Muhammad Khan and half to his grandson Muhammad Sher. The formality of the transfer and documenta tion was to take place after obtaining of the proprietorship and as till about that time the bar of transfer also became non‑existent, therefore, the claim of ownership by Muhammad Khan in the suit filed by him would not in any case be hit by the prohibitory conditions contained either in the Colonization of Government Lands Act or the Rules framed thereunder.

28. Learned counsel for the appellant took me through the various entries in the Jamabandis relied upon by him. It is true that according to these entries, there are two glaring variations which on the face appear to be irreconcilable: one, area at different times held by Muhammad Khan; and two the position of batai. It cannot be ignored that for several years before the institution of the suit in 1968, the parties had become inimical to each other on account of the estrangement and dispute over the suit land. There was litigation before the Revenue authorities going up to the Board of Revenue on the question of ejectment of Muhammad Khan and his sons from the suit land. The Jamabandis during or near the period of this dispute contain entries somewhat favourable to the appellant qua batai. If Muhammad Sher had not disputed the long‑standing and established posses sion and ownership of Muhammad Khan on the suit land for a long time, it would need some effort on his or his son's part to dilute the effect of this circumstance. The entries thus appearing in the Jamabandi qua batai, without the same having ever been paid, become understandable. Why I say that batai was never paid is clear from the admissions made by Muhammad Sher appellant himself when he appeared as his own witness as also from the statements made by the plaintiffs' witnesses, which have been accepted as true by the learned Courts below. These entries showing payment of batai by Muhammad Khan and his sons to Muhammad Sher cannot be of much help to the appellant. The entries earlier thereto, as observed in para. 12 of the appellate judgment, give the following picture:‑

"12. So far as the quotation of adverse possession is concerned, the parties have produced a number of documents. The possession of Muhammad Khan plaintiff on the land in dispute is admitted between the parties with the amendment that according to the defendant Muhammad Sher he was his tenant, while Muhammad Khan asserts to be its owner. Copy of Jamahandi for 1930‑31 Exh. P. 5 shows the possession of Muhammad Khan and he did not pay any batai being his son. Copy of Jamabandi for 1934‑35 Exh. P. 6 also shows the same entry. Copy of Jamabandi for 1938‑39 Exh. P. 7 however, shows Muhammad Khan as tenant of Muhammad Sher but according to Exh. P. 8 Jamabandi for 1942‑43 Muhammad Khan has been shown in possession as a relative. The copy of Jamabandi for 1946‑47 Exh. P. 9 also shows Muhammad Khan and his sons plaintiffs as tenants but in copy of Jamabandi for 1952‑53 Exh, P. 10 the plaintiffs have again been shown in possession of the land in dispute as relatives. These copies of Jamabandis, therefore, clearly do to show the possession of the plaintiff Muhammad Khan not as a tenant under his father or under Muhammad Sher defendant but being in possession as a relative, and it was by all means in his own rights. As referred to above, in Exh. P. 7 and Exh. P. 9 the plaintiff Muhammad Khan has been shown as tenant but these entries are subsequently superseded by Exhs. P. 8 and P.

10. The entries of Exhs. P. 7 and P.9 are, there fore, of no significance at all. It is, therefore, proved froth the copies of Jamabandis referred to above that the plaintiff Muhammad Khan was not in possession of the land in dispute as a tenant, as he never paid any rent either to his father, when he was alive, or to Muhammad Sher, to whom the land was subsequently mutated. He was, therefore, in possession of the land in dispute not as a tenant but on his own rights as its owner, according to the family settlement made by his father. The possession of the plaintiff Muhammad Khan, stretching continuously from 1930 up to this time was for all intents and purposes hostile and adverse to the real owner, be it Ata Muhammad or Muhammad Sher. To constitute adverse possession, it should be open, continuous, hostile, notorious and to the knowledge of the real owner. In this case the possession of the plaintiff Muhammad Khan, fulfilled all those conditions. The plaintiff had, therefore, acquired title in the land in dispute through prescription. The issue has, therefore, been correctly decided by the learned Civil Judge."

The observations of the learned Additional District Judge are self‑explanatory and are unexceptionable. I do not feel inclined to make any further comment in this behalf. The question of variation of area loses all significance when considered in juxtaposition to the very clear admission made by Muhammad Sher that Muhammad Khan remained in possession of the suit land which is exactly half of the land under the Horse Breeding Grant. The variations in the entries in Jamabandis can be for various reasons given by the learned counsel for the contesting respondents. In view of the admission made by Muhammad Sher on the question of exact acreage under cultivation of Muhammad Khan, there is no need to discuss this aspect of the case any further.

29. As to the other points raised by the learned counsel for the appellant, essentially they relate to appreciation of evidence. I have myself carefully gone through the evidence. The concurrent findings of fact on both the issues reached by the learned Courts below are based on sound reasons and the inferences drawn by them from admitted or established facts do not in any way amount to misreading. I do not find any justification for interference with these findings. It needs, however, to be noticed that the discrepancies and so‑called improvements pointed out by the learned course for the appellant in the depositions of the plaintiffs' witnesses are not beyond the natural differences qua memory and perception. They do not amount to contradictions nor it can be said, in the absence of special interests of the P. Ws. in advancing the case of Muhammad Khan that the statements could not otherwise be relied upon. In conclusion, it needs to be recapitulates that the family arrangement of which, from all circumstances it appears Ata Muhammad was the originator with of course Muhammad Khan a; beneficiary and to which Muhammad Sher by his assent and conduct o1 long standing became party; stands proved. This is in addition to the continuous but open and hostile possession of the suit land held by Muhammad Khan throughout, without in any way acknowledging any right of Muhammad Sher on it; notwithstanding some contra‑entries in the Revenue records showing payment of fake batai.

30. In the light of the above discussion, I do not find any justification for interference with the concurrent findings of fact reached by the learned Courts below on any of the issues. The result is that despite the preliminary objections of the learned counsel for the contesting respondents on legs points having been overruled, on merits this appeal fails and the same is, accordingly dismissed, but there shall be no order as to costs.

K.B.A. Appeal dismissed.