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Civil Petition No. 644 of 1977, decided on 9th March, 1982.

(On appeal from the judgment dated 27‑8‑1977 of the Lahore High Court Passed in Regular Second Appeal No. 56 of 1965).

----O. XXII, r. 4 read with Constitution of Pakistan (1973), Art. 185(3)‑Leave to appeal‑Contention that land having been jointly owned by deceased and petitioner, petitioner could maintain appeal in so far as it involved their interest notwithstanding non‑impleadment of legal representatives of deceased‑Point, held, needs consideration Leave to appeal granted.

Fazal Dad v. Nek Alam P L D 1957 Lab. 430 ref.

S. M. Bashir, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing : 9th March, 1982.

.‑A suit had been brought by Sultan Ahmad against Sher Zaman, his brother Muhammad Zaman and Muhammad Khan, claiming the right of way in Khasra Noss. 684 and 685 of village Sohga Dutt, Tehsil Gujar Khan, which was decreed in his favour by the appellate Court Sher Zaman and other defendants moved R. S. A. No. 56 of 1965. During the pendency of the Regular Second Appeal, Sher Zaman died on 1‑11‑1971. His L. Rs were not impleaded. The learned Judge of High Court held that Sher Zaman was a necessary party to the suit in whose absence no effective decree could be passed and as such dismissed the appeal as having abated in toto. Aggrieved, Muhammad Zaman and Muhammad Khan have moved this petition for leave to appeal.

2. Learned counsel submits that the admitted position, as duly noted by the learned Judge of the High Court, was that Muhammad Khan petitioner exclusively owned Khasra No. 684 while the other Khasra No. 685 bad been jointly owned by Sher Zaman deceased and Muhammad Zama petitioner. He, therefore, contends that notwithstanding the non‑impleadment of the L. Rs. of Sher Zaman, the present petitioners could maintai the appeal in so far as it involved their interest. For this he relied on Faza Dad v. Nek Alam P L D 1957 Lab. 430

.

3. 'The point needs consideration. We accordingly grant leave to appeal. Security Rs. 2,000.

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