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R. S. A. No. 30 of 1970, decided on 24th May 1977.

- O. I, r. 9-Non-joinder of parties-Object of O. I, r. 9-To avoid penal consequences in case of failure of plaintiff to join proper parties to suit-- Court in such circumstances could order amendment of plaint to remove defect of non joinder or misjoinder of parties to facilitate complete and efficacious adjudication of suit- Misjoinder or non joinder of parties not occasioning miscarriage of justice--Suit cannot be dismissed due to such technical defect-Provisions of O. I., r. 9 strictly followed by lower Court, such Court passing decree in favour of absentees declaring their entitlement with specific observation that they could recover their shares of property, suit, held, not liable to be set aside for non-joinder of parties.

Khaliq Dad v. Abdul Ghani and others P L D 1973 S C 214 and Mrs. M. Waterfield v. C E. Lee arid another P L D 1957 Lab. 882 held not relevant.

----- Art. 142-Adverse possession-Limitation, running of-Agent can hold property on behalf of principal for any number of years but his possession could never be termed as adverse--Property still remains in constructive possession of owner-Question of applicability of Art. 142 beyond scope of suit in such eventuality.---[Adverse possession).

--- S. 24 read with Civil Procedure Code (V of 1908), S. 100--Second appeal-Appraisal of evidence on ground of certain findings of fact being erroneous-Not permissible in second appeal before High Court-Second appeal competent only on grounds available under S. i00, C. P. C.-[Second appeal].

Abdul Majid and others v. Khalil Ahmed P L n 1955 F C 38 ; Mumtaz and 3 others v. Mian Khan P L D 1973 Lah. 47 and Dad v. Ramzan P L D 1975 Quetta 52 ref.

Malik Karam Elahi for Appellant.

I. H. B. Hanafi for Respondent.

Dates of hearing : 13th. 16th, 19th and 24th May 1977.

This second appeal under section 24 of Dastur-ul-Amal Diwani, Kalat assails the judgment dated 19th October 1970 passed by Majlis-e-Shoora, Kalat who affirmed the judgment and decree dated 6th April 1970 passed by Qazi Turbat decreeing the respondent's suit for possession of land.

2. The facts in brief are that the respondent filed a suit on 8th March 196) against the appellant and his brother Mauladad, claiming that his aunti Mst. Mehri Malik died issueless leaving behind one 'tissu' of water with land and date palms which he was entitled to inherit being the only heir of the deceased Mauladad filed his written statement on 21st May, 1959 showing his disinterestedness in the suit on the ground that he was not in possession of the suit property, as such, only tae appellant was left as contesting defendant. He filed his written statement on 8th August 1469 denying the appellant's claim and asserting that Mst. Mehri Malik had not proprietary rights in the disputed land and water and that he and his father continued to he in adverse possession of this property for over twelve years and the suit was not maintainable being barred by time. He also raised some preliminary objections such as the suit was defective for want of adequate description of the property. However, Qazi Turbat framed issues on all the points on which the parties were at variance, recorded the evidence of the parties and awarded a decree dated 9th September 1969 in respondent's favour but the Majlis-e-Shoora in appeal set it aside vide order dated 14th October 1969 and remanded the case to Qazi Turbat with directions to decide it afresh after framing proper issues. After the remand the case was again heard by Qazi, Turbot and decreed on 5th April 1970 against which an appeal was filed to Majlis-e-Shoora. Kalat who upheld the decision on merits but modified the judgment to the extent of reducing the respondent's share in the suit property to 14th and declaring another nephew and a real sister of Mst. Mehri Malik entitled to the rest, since these two heirs had neither filed suit for inheritance nor they were parties to this suit therefore it was further held that their shares will continue to be in possession of the respondent till they were recovered by filing separate suits. The appellant has now come up in this second appeal against the concurrent finding of the Courts below against him.

3. Mr. Karam Elahi Malik, learned counsel for the appellant had assailed the competency of the said decisions on the grounds that (i) both the judgments were untenable in law for non joinder of Dad Mohammed, brother of the Mst. Mehri Malik and Mst. Telia sister of Mst. Mehri Malik who were held entitled to inherit 3/4th of the suit property by the Majlis-e-Shoora (ii) the fact of adverse possession for over twelve years was satisfactorily proved by the respondent and therefore the suit was hit by the provisions of Article 142 of the Limitation Act, and that (iii) the onus to prove that he had been dispossessed from the suit property for less than twelve years lay upon the respondent which tie could not discharge satisfactorily as such the impugned decisions were not sustainable. I will take up these objections one by one.

4. The first contention of the learned counsel is that the impugned judgments were liable to be set aside for non joinder of Dad Muhammad and Mst. Talia who were held entitled to inherit 3/4th of the suit property by Majlis-e-Shoora. To substantiate his contention he has placed reliance upon Khaliq Dad v. Abdul Ghana and others (PLD 1973 S C 214), wherein it was held that a suit for possession could be brought by all the co-owners jointly whereas an application for ejectment under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 could be brought by any one of the co-owners of the property without joining the rest of the owners as parties to the case. In this case only a principle has been laid down. It is not of much relevance to the point in issue in this case as it does not say that a suit would be liable to dismissal for non-joinder of proper or necessary parties. The other case cited by him was Mrs. M. Waterfield v. C. E. Lee arid another (PLD 1957 Lah. 8822). In this case it was held that omission to implead a proper party as defendant would not prove fatal to the, maintainability of the suit and a decree passed in the absence of such party shall not be vitiated on this ground alone. This case is also of no help to the appellant. On the contrary it supports the respondent's version. My attention was invited by the learned counsel for the respondent to Order 1, rule 9 of the Code of Civil Procedure which I reproduce below for convenience of reference ;-

"Misjoinder and non-joinder.---No suit shall be defeated by reason of the misjoinder or non joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it."

By perusal of this provision of law it is manifest that the intention of the Legislature is that no suit shall be defeated on the ground of misjoinder and non joinder of the parties. In such an event the Court can competently adjudge the rights and interests of the parties actually before it I may add here that the main object of Order 1, rule 9 of the Lode of Civil Procedure is to avoid penal consequences in case of the failure of the plaintiff to join the proper parties to the suit. All what a Court can do in such circumstances is' to order amendment of the plaint so as to remove these defects in order to' facilitate complete and efficacious adjudication of the suit. It is also to be kept in mind as to whether any miscarriage of justice has occasioned due to the misjoinder or non-joinder of the parties and if that is not so, then to say that a suit should fail due to this technical defect would amount to defeating A the ends of justice. In the instant case the provisions of Order I, rule 9 of the Code of Civil Procedure have been strictly followed by Majlis-e-Shoora who have not passed a decree in favour of the absentee heirs of Mst. Mehri Malik.' All what has been done is that their entitlement is declared with a specific observation that they could recover their shares of the property.

5. The next two grounds urged by the learned counsel for the appellant relate to the point of Limitation and can be conveniently disposed of together.

He has contended that the adverse possession of the appellant related back to over 12 years from the date of the suit and therefore by mischief of Article 142 of the Limitation Act the suit was not maintainable. He also referred to the evidence led by the parties on this issue. From the perusal of the evidence and the impugned judgment it is proved beyond all shadows of reasonable doubt that the disputed property belonged to Dost Mohammad, husband of Mst. Mehri Malik who transferred it to her in lieu of her claim of dower. After his death the management of the property devolved upon one Qadir Dad and thereafter it was managed and looked after by the respondent. In such circumstances the question of adverse possession does not arise a t all. An agent can hold a property on behalf of the principal for any number of years but his possession cannot be termed as adverse possession as the property remains in constructive possession of the owners. In these circumstances the question of applicability of Article 142 of the Limitation Act is beyond the scope of the suit. The discussion of this point in the judgments of the Courts below is redundant as in the presence of a finding that the respondent's possession of the suit property was that of a manager or care-taker it was not necessary to make a probe to find out whether this possession was of twelve years or less and also as to whit was the effect of Article 142 of the Limitation Act on the case. The learned counsel for the appellant also criticised the appreciation of evidence by the Courts below on the point of respondent's possession as manager of the suit property but I am afraid that in a second appeal which is competent under section 24 of the Dastur-ul-Amal Diwani, Kalat only on those grounds which are available under section 100 of the Code of Civil Procedure; I cannot appraise the evidence on the ground that certain findings of facts was erroneous. On this point the learned counsel for the respondent placed before me Abdul Majid and others v. Khaliq Ahmed (P L D 1955 F C 38). In this case it was held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits." He also referred to Mumtaz and 3 others v. Mian Khan (P L D 1973 Lah.47) and Dad v. Ramzan (P L D 1975 Quetta 52), in which the same principle has been enunciated. In these circumstances it is manifest that even if a finding of fact is erroneous I cannot undertake the appraisal of evidence while hearing second appeal filed under section 24 of the Dastur-ul-Amal Diwani, Kalat. The criticism of the learned counsel on this point is wholly devoid of force.

As the result. I do not find any substance in this appeal which is hereby dismissed but with no order as to costs.

S. A. H. Appeal dismissed.

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