ABDUL LATIF Versus MUHAMMAD KHAN

ORDER

This regular second appeal is directed against the judgment/ decree, dated the 4th of September, 1982 of the learned Additional District Judge, Lahore, whereby he dismissed the first appeal of the appellants/ defendants.

2. The respondents/ plaintiffs brought the. suit for declaration that the portion marked A, B, C and D in the attached plan was a part of the Waqf created in the name of Masjid Mian Gaman and that the defendant Faiz Bakhsh (now dead) had no right to convert it for his personal use. They prayed for a mandatory injunction that the superstructure raised by him be demolished and also perpetual injunction with a view to restrain him from interfering with the user of the said porti6h by the respondents/ plaintiffs as a part of the mosque.

3. The suit was contested raising a number of preliminary objections, like non-joinder of necessary parties. Absence of registration as a Society on the part of the plaintiffs, and non-maintainability in its present form of the suit. The alleged character of the property was denied claiming that it belonged to the defendant Faiz Bakhsh. The preliminary issues were held against the appellants/defendants by order, dated 11-4-1ati6 of the trial Court and the following further issues were framed:

"(1) Whether the portion marked A, B, C and D in the plan attached to the plaint is a part and parcel of Waqf Masjid Mian Gaman? O. P.

(2) Whether the suit property belongs to the defendant and he is the owner of it? O. D.

(3) If issue No. 2 is not proved whether the defendant has prescribed title to the suit property through adverse possession? O.D.

(4) Whether plaintiffs are entitled to the consequential relief as given in the plaint? O.P.

(5) Relief."

These were also held against the appellants and consequently the suit was decreed. The first appeal also failed.

4. Mr. Gul Muhammad Butt for the appellants contended that the lower appellate Court wrongly remarked in the impugned judgment that no objection as to the maintainability of the suit had been taken before the trial Court. He referred to the order, dated 11-4-1966, by which the trial Court had disposed of the aforesaid objections. He claimed that since it was the first appeal, they could challenge the findings on the preliminary issues before the lower appellate Court and that in fact they did so, but the observation of the learned Additional District Judge to the contrary was based upon his failure to examine the record. He referred to Bashir Ullah v. Mst. Sardar Begum P L D 1954 Lah. 614 wherein second appeal the evidence was re-appraised only because the lower appellate Court had failed to give any finding on the point.

5. The contention is not without force. It appears that somehowl the learneo Additional District Judge omitted to note the order of 11-4-1966 of the trial Court by which objections against the maintainability of the suit were overruled. I do not think the findings on them were wrong. Section 92, C.P.C. was held inapplicable because the nature of the relief sought did not fall within its ambit. Similarly, applicability of Rule 8, Order I, C.P. C. could also be obviated though it was not waived in Mst. Banto Devi v. Firm Rai Sahib Lala Shiv Parshad A I R 1943 Lah. 96 = 206 I C 239. Absence of the permission was held not to effect the suit in its entirety inasmuch as it did not bind other persons interested in the subject-matter. Conversely, the decision was considered binding upon the parties actually before the Court. Even in Muhammad etc. v. Kuni Kutti Ali etc. A I R 1929 Mad. 451 and Maj. Muhammad Ayub Khan v. Capt. Jamroz Khan etc. 1979 C L C 788, the provision was not applied rigorously because of its enabling nature. If the suit was untenable for non-impleader of others in their representative capacity, it was quite sustainable qua the individuals already arrayed. There is no substance in the objection.

7. The third limb of the objection equally fails. The respondents/ plaintiffs could have formed a society and got themselves registered under the Societies Registration Act, 1860, but the omission does not adversely affect individual rights of the plaintiffs to sustain the suit. Nothing turns upon this ground for the appellants/defendants.

8. Other findings were more of fact than law. The Courts below concurrently held that the impugned portion formed a part of the Waqf known as Masjid Mian Gaman and that the appellants or fur that matter their predecessor Faiz Bakhsh deceased, had wrongly converted it to his personal use. No instance was shown whereby the evidence may have been misread. Accordingly these findings could not be disturbed. The R. S. A. is dismissed in limine.

A . A. Appeal dismissed.