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Revision No. 322 of 1963‑64, decided on 23rd February 1965.

O. I, r. 10(2)‑Suit for rent and ejectment‑Co‑sharers in Shamilat, but not in land in dispute, nor in possession of such land, held, wrongly impleaded on their own request.

Qazi Ahmad for Petitioners.

Respondent No. 1 : Ex parte.

Riasat Ali for Respondents.

This is a second revision filed against an order dated the 6th of July 1963, passed by Additional Commissioner, Peshawar, whereby the revision preferred by the petitioners was dismissed.

The facts of the case are that the petitioner, Mst. Bibi Aisha, filed a suit for recovery of rent and ejectment of Natifullab, deceased respondent. During the course of proceedings, respondents Nos. 2 to 4, requested for being, impleaded as parties on the ground that they were co‑sharers and to possession of the land in dispute. The Assistant Collector passed a decree for Rs. 130‑12‑0 and also ordered ejectment of the respondents. The proceedings were ex parse against them as they failed to appear after due service. Natifullah respondent submitted an application for setting aside ex parse proceedings but the Assistant Collector dismissed his application. Natifullah respondent and other respondents then filed an appeal before the Collector and he found that the respondents had not been given an opportunity to prove their claim and again remanded the case. The case was taken up again and the Assistant Collector passed a decree for Rs. 130‑12‑0 and also ordered the ejectment of Natifullah respondent. This was subject to the payment of Rs. 200 by the petitioner as compensation. The suit in respect of other respondent was however, dismissed. The petitioner went in appeal to the Collector but it was dismissed. She then filed a revision before the Additional. Commissioner but it was also rejected. Hence this second revision.

I have heard the learned counsel for the parties. It is true that respondents Nos. 2, 3 and 4 are co‑sharers in shamilat but there is no evidence to show at all that they were over in possession of the land in dispute. The Assistant Collector was not justified in impleading them as parties merely on the assertion which was not supported by any revenue records. It is, therefore, obvious that impleading them as respondents was wrong.

So far as the decree for rent, ejectment and compensation are concerned, there is no dispute between the parties. The petitioner feels, however, aggrieved that either the suit against the respondents Nos. 2 to 4 should be decreed or the order impleading them as parties should be set aside. In the circumstances of the case mentioned above, the second request is justified. I, therefore, accept the revision and direct that the order for impleading respondents Nos. 2 to 4 as respondent shall be set aside and the decree for rent ejectment and compensation mentioned above shall be executed against the legal representa tives of Natifullah respondent who has since died.

A. H. Order accordingly.

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