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Civil Petition for Special Leave to Appeal No. 811 of 1974, decided on 3rd February 1980.
(On appeal from the judgment and order of the Lahore High Court, dated 20th May 1974, in R. S. A. No. 158 of 1961).
‑‑ O. XXII‑Abatement of suit‑Sale of property to joint purchasers without specification of share purchased by each vendee and without apportionment of consideration paid by them‑Such sale indivisible Death of one co‑purchaser during pendency of suit‑Held, resulted in total abatement of suit.‑[Abatement].
Abdullah and 3 others v. Abdul Karim and others P L D. 1968 S C 140 and Ahmad and others v. Ghulam Haider 1972 S C M R 357 ref.
Q. M. Salim, Advocate Supreme Court and S. Wajid Hussain, Advo cate‑on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing : 3rd February 1980.
‑ Allah Bakhah petitioner No. 1) and Faiz Muhammad alias Faiz Bakhsh (petitioner No. 27 (deceased) (now represented by his legal representatives) filed a suit against Ghulam Shabbir Shah (defendant/respondent) for a declaration that they were the owners in possession of the land in dispute described more fully in their plaint on the basis of some alleged verbal sale which according to them took place in May, 1954. The suit was dismissed by the learned Civil Judge, on 7‑3‑1960. The first appeal of the plaintiffs/petitioners also met the same fate and was dismissed by the learned Additional District Judge on 19‑12‑1960.
2. The petitioners filed a second appeal being R. S. A. No. 158/1961, in the High Court. During the pendency of that appeal the co‑plaintiff Faiz Muhammad alias Faiz Bakhah died somewhere in year 1967 and even though the objection on that basis regarding abatement of appeal was taken in year 1973, but no steps were taken by the petitioners to rectify the same or to bring his legal representatives on the record, with the result that the learned Single Judge of the Lahore High Court dismissed the said appeal on 20‑5‑1974, holding that the same has abated In toto.
3. The petitioners have come up in a petition for special leave to appeal against the same to this Court.
4. Before proceeding further it may be mentioned that we asked the learned counsel to read out the plaint before us which he did. The plaint showed that the plaintiffs claimed a joint sale in their favour without specification of any particular share and without indicating as to bow much price was allegedly paid by each plaintiff. This will show that it was a join purchase without specification of the share purchased or the apportionment of the consideration paid by the vendees. The sale in these circumstances, it is thus obvious, was indivisible and the death of a co‑purchaser in these circumstances was rightly held by the High Court to have resulted in the total abatement of the suit. Reference may be made to Abdullah and 3 others v. Abdul Karim and others (P L D 1968 S C 140) and Ahmad and others v. Ghulam Haider (1972 S C M R 357), which no doubt pertained to cases of pre‑emption, but the principle laid down therein can be applied to as situation of the kind involved herein.
5. The result is that this petition has no merit and is dismissed.
Petition dismissed.
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