ABDUL KARIM Versus SAID MUHAMMAD

ORDER

KARAM ELAHEE CHAUHAN, J .‑‑Said Muhammad alias Said and three others (hereinafter called the plaintiffs) filed a suit on 13‑6‑1964 for a declaration to the effect that the plaintiffs and defendants 5 to 13 were the owners in possession of land measuring 1 Kanal and 15 marlas out of land measuring 17 kanals 6 marlas bearing Khasra Nos.918/137 and 923/139 entered in the Jamabandi for the year 1966‑67 situated in the revenue estate of Hajipura, Sialkot, with a consequential relief for issuing a permanent injunction against defendants 1 to 4. restraining them from dispossessing the plaintiffs and defendants 9 to 13 from the suit land. Abdul Haque son of Muhammad Hussain was defendant No‑2 in the suit. He died on 22‑1‑1969 and his legal representatives were not brought on record within the requisite period of limitation, with the result that the suit abated. The plaintiffs, however, filed an application on 10‑5‑1969 under Order XXII, Rule 9, Code of Civil Procedure, for setting aside the aforesaid abatement. This application was resisted and on the pleadings of the parties, the learned trial Judge framed an issue to the effect "whether there is any sufficient cause to set aside the abatement". The parties led evidence and the learned trial Judge, after appreciating the same, held that there was no sufficient cause for setting aside the abatement. He further held that the suit had abated in toto and consequently dismissed the same by his judgment and order dated 15‑7‑1969, though he did not specifically determine as to how a total abatement on the facts and in the circumstances of the case was warranted.

2. The plaintiffs filed an appeal, but without any success as the same was dismissed by the learned Additional District Judge, Sialkot, on 14‑1‑1971, who simply refused to set aside the abatement without determining whether the abatement should be of the whole suit or only qua the share of the deceased defendant.

3. The plaintiffs then filed a revision petition being Civil Revision No.468 of 1971 which was accepted by a learned Single Judge of the Lahore High Court on 13‑3‑1978, who held that as the share of the deceased defendant was of a definite fraction viz. 1/6th and severable from others, therefore, the suit had abated qua his share alone and not as a whole. After giving this finding, the learned Single Judge set aside the orders of the Courts below and remanded the case to the learned District Judge for transmission to a Court of competent jurisdiction for its decision on merits. The defendants (petitioners) have come up in a petition for special leave to appeal against the same to this Court.

4. Learned counsel for the petitioners has argued that in this case the suit abated as a whole as it was based on one cause of action which was not severable inter se the defendants. The contention has no merit. Abdul Haque deceased‑defendant was shown to have only a fraction of a share in the suit land. This is clear from the following passage in paras. 4 and 6 of the judgment of the High Court:

"It requires to be seen whether the suit was to abate totally or only as against the deceased‑defendant whose legal representatives were not brought on record. The test laid down in Wali and others v. Manak Ali and others P L D 1965 S C 651 that abatement as such takes place only as regards the defendant or respondent who dies and when 'total abatement' of the suit or the appeal is spoken of it is meant that on account of the situation that is created by the abatement of the suit as against a party the suit or appeal cannot for one reason or the other proceed at all. Following the rule it is evident that where the matter could be decided without passing two contradictory decrees and where the proceedings could be competent without impleading the deceased as a party, the abatement of the suit is partial i.e. with regard to the deceased only. In the instant case, the suit is for declaration that the plaintiffs are the owners in possession and that the defendants have no right to it. As a consequential relief a prayer is made for perpetual injunction to restrain the defendants from interfering with the possession of the plaintiffs. According to the Jamabandi (Exh.P.1) for the year 1906‑1407 the disputed khasra numbers 918/137 and 923/139 measuring 15 kanals 6 marlas were shown to be the ownership of Ghulam Muhammad the father of the plaintiffs. The same is the entry in Missle Haqiat of 1913‑14 and the land in dispute measuring 15 kanals 11 marlas appears to be situated on Chah Ghulam Muhammad Wala. It is in Jamabandi for the year 1961‑62 that the same land is shown to belong to the defendants 1 to 4 including Abdul Haq, the deceased. It is shown to be cultivated by Said son of Ghulam Muhammad, the petitioner‑plaintiff. It is probably on account of this entry that the plaintiffs felt aggrieved and filed the suit. If seen, the share of the deceased is 1/6th (1/3rd of 1/2). This entry is a cloud on the interests the plaintiffs which they want to avoid. Each of the defendants according to the Jamabandi, proclaims to be an owner of the share specified therein. In such circumstances it a was open to the plaintiffs to file a suit on each invasion against each of the proclaimed owners or join them in one suit. It can, therefore, be said that the suits if filed against all the defendants 1 to 4 separately would be competent and each one of them could be restrained from interfering with the plaintiffs possession. In other words, this suit being based on distinct and separable causes of action, could proceed to a final adjudication in the absence of the legal representatives of the deceased‑defendant. The partial abatement, therefore, did not affect the rest of the suit.

In view of what has been found above I am constrained to hold that the suit has abated to the extent of 1/6th share of the deceased only. The remaining 5/6th suit shall proceed. I, Therefore, set aside the order of abatement of 5/6th of the suit and remand the case to the learned District Judge, Sialkot for transmission to the competent Court of original jurisdiction to decide the same on merits. The parties are left to bear their own costs.

Learned counsel was unable to find any fault with the factual finding recorded by the learned Single Judge of the High Court viz. that "each of the defendants, according to the Jamabandi, proclaims to be an owner of the share specified therein". In the face of the aforesaid factual position which was not taken exception before us, the view taken by the learned Single Judge seems to be quite in order. We may here refer to Abdullah and 3 others v. Abdul Karim and others P L D 1968 S C 140 which was a case of pre‑emption, wherein it was held that where there are more than one vendees in a sale, but share of each vendee and the proportionate amount paid by him can be separately ascertained, then if one of the vendees died without bringing his legal representatives on record, the suit of the pre‑emptor will abate only qua the share of the deceased‑vendee and not as a whole. This will show that even in case of pre‑emption where generally unity of sale is not broken the law on abatement leans towards partial abatement if the share of a deceased‑vendee and proportionate price paid by him is ascertained or ascertainable. In ordinary cases, therefore, where a share of a deceased‑defendant is specific, the same rule can rather more safely apply. To the same strain are Wall and others v. Manak Ali and others P L D 1965 S C 651; Sant Singh and another v. Golab Singh and others A I R 1928 Lah. 572 and Nanak and others v. Ahmad Ali A I R 1946 Lah. 399 which highlight the position in cases where the share of a deceased defendant is fixed and determined. Learned counsel was unable to show any rule or principle different from the one as referred to above, which ought to be applied in a situation of the present kind. H The order of the learned Single Judge does not suffer from any legal or factual errors and calls for no interference by this Court. The result is that the present petition has no merit and is dismissed,

M. I. /A‑274/S Petition dismissed.