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(a) Civil Procedure Code (V of 1908)--

-- O. I, r. 1 & O. XXII, r. 2-Appeal, abatement of-Party not necessary to proceedings dying and his interest not in conflict with that of other respondents but on other hand identical-Appeal does not abate in circumstances.

Alam Khan and others v. Syed Mastan Shah and others P L D 1969 Pesh. 234 distinguished.

Muhammad Amin v. Khamiso and another P L D 1956 Lah. 242 and Munshi Ram v. Abdul Aziz A I R 1943 Lah. 252 ref.

(b) Custom (Punjab)-

-Agricultural tribe-Party not belonging to village compact life, nor depending on agriculture but adopting urban life-Mere fact of his belonging to notified agricultural tribe-Not sufficient to show that he followed custom.

Abdul Karim and others v. Ghulam Ghaus P L D 1951 Lab. 386 ; Muhammad Latif v. Muhammad Hafeez and others P L D 1951 Lab. 479 and Qaim Din and another v. Muhammad Ibrahim P L D 1958 Lab. 496 ref.

S. M. Bashir for Appellant.

Ch. Manzoor Ahmad with Rana Muhammad Amin for Respondent No. 1.

Dates of hearing : 15th and 16th April 1974.

This second appeal arises out of a judgment of the learned Senior Civil Judge with enhanced appellate powers, Rawalpindi, dated 22nd December 1959, whereby he reversed the finding of the Additional Civil Judge Second Class dated 18th December 1958, dismissing the suit of the plaintiff.

2. Brief facts of the case are that Mst. Ferozan sold land measuring 13 marlas 4 sarsahis situate in Mohalla Akalgarh, Rawalpindi City, in favour of Mst. Shah Jahan Begum by registered sale-deed dated 18th July 1953. The plaintiff as the collateral of the last male-holder sought a declaration that the alienation made by Mst. Ferozan in favour of Shah Jahan Begum be declared inoperative. The plaintiff averred that he and the husband of Mst. Ferozan followed custom in matters of alienation, the land in suit was ancestral qua the plaintiff and the sale was effected without considera tion and legal necessity. Mst. Shah Jehan Begum denied the allegations made in the plaint and contended that Mst. Ferozan was absolute owner of the land and that the plaintiff was estopped by his conduct from bringing the suit. Pleas with regard to valuation, court-fee and jurisdiction were also raised. The learned trial Court after framing six issues and recording evidence of the parties dismissed the suit giving his finding on issue No. I (whether the last male-holder and the plaintiff were governed by Custom) against the plaintiff:

3. A preliminary objection was raised that since Mst. Ferozan has ..lied three years earlier the appeal has abated as a whole. Reliance is placed on Alam Khan and others v. Syed Mastan Shah and others P L D 1969 Pesh. 234. On the other hand Mr. S. M. Bashir has cited Muhammad Amin v. Khamisa .and another P L D 1956 Lah. 242 and Munshi Ram v. Abdul Aziz A I R 1943 Lah. 252 and argued that Mst. Xerozan was only a pro forma respondent in the appeal and in case of her death, the appeal without impleading her legal heirs, does not abate. She being a pro forma respondent was not a necessary party. From perusal of the above case-law I am of the view that the appeal does not abate ,in the instant case. The Peshawar case referred to above is distinguishable -for the reason that the deceased in that case was a necessary party and his interest could not be separated from that of the other respondents.

The two latter authorities are clearly in favour of the proposition that where a party who is not necessary to the proceedings dies and interest whereof is not conflicting with that of the other respondents, but on theA other hand is identical, the appeal would not abate and rule 2 of Order XXII, C. P. C. would come into operation. The objection is overruled

4. I have gone through the evidence with the help of learned counsel for the parties and find that the plaintiffs, Mst. Ferozan and her husband were residents of Rawalpindi city. The plaintiff, his father as also ,the husband of Mst. Ferozan never depended on agriculture and had adopted service as their vocation. The record does not show that they .ever lived in any village. Reference is made to Abdul Karim and others v. Ghulam Ghaus P L D 1951 Lah. 386, Muhammad Latif v. Muhammad Hafeez and others P L D 1951 Lah. 479 and Qaim Din and another v. Muhammad Ibrahim P L D 1958 Lah. 496 in support of the contention that where the parties do not belong to village compact life .and do not depend on agriculture, they having adopted the urban life, the mere fact that they belonged to notified agriculture tribe, would not show that they followed custom.

Learned counsel for the respondents has not been able to cite any authority to controvert this legal proposition. The inescapable conclusion, therefore, in the circumstances would be that the judgment of the trial Court on issue No. 1 was correct and in accordance with law. I would, therefore, set aside the order of the lower appellate Court and restore that of the trial Court leaving the parties to bear their own costs.

S. A. H. Appeal allowed.

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