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Civil Second Appeals Nos.282 and 233 of 1973, decided on 9th August, 1987.

---S.100--Second Appeal--Appeal against judgment and decree of District Judge/appellate Court setting aside judgment and decree of trial Court decreeing suit to extent of 2/3rd share of respondents plaintiffs--Respondents having sold out their share, according to their own showing, had no locus stand to file suit--Decree of Trial Court set aside and order of Appellate Court to extent that respondents had no locus standi to file suit maintained.

---S.100--Second Appeal--Courts below touching upon merits of case of parties in suit when the plaintiffs had no locus standi to file suit--Findings of Courts below on merits of respective contentions of parties set aside.--[Locus standi].

Mohammad Sharif for Appellant.

Mehar Hussain Mesawa and Abdul Latif Memon for Respondents.

Date of hearing: 9th August, 1987.

These are two connected appeals as they are directed against the same judgment and decree dated 15-12-1972, passed by the learned District Judge, Khairpur in Civil Appeal No.61 of 1968, whereby the learned District Judge was pleased to set aside the judgment and decree dated 12-4-1969 passed by the learned Civil Judge 11 Class, Khairpur, decreeing the suit to the extent of 2/3rd share of present respondents 2 and 3.

2. The brief facts leading to the filing of the above two appeals are that Ghulam Nabi Shah died in or about 1925 leaving behind Jafar Ali Shah, Murad Ali Shah, Mohammad Ali Shah; Haider Ali Shah and Ghulam Ali Shah. The latter two brothers died issueless; whereas Mohammad Ali Shah also died leaving behind Lutuf Ali Shah. They are impleaded as respondents 2,4 and 3 respectively in Second Appeal No.282 of 1973. It appears that respondent No.1 Mohammad Bux son of Mohammad Alim Memon filed Suit No.119 of 1962 against Jafar Ali Shah for specific performance of the two sale agreements of 7-12-1943 in respect of agricultural land, bearing survey numbers 124, 553 and 554, measuring about 17 acres, situated in Deh Mithodero, Taluka and District Khairpur. The above suit was decreed ex parte on 26-3-1963. Jafar Ali Shah filed an application under Order IX, Rule 13, C.P.C. for setting aside the above ex parte decree but the same was dismissed on 3-3-1964. After that he filed Civil Appeal No.60 of 1964. The same was also dismissed by the learned District Judge, Khairpur by his judgment dated 12-9-1964. It appears that after the dismissal of the above application under Order IX, Rule 13, C.P.C. Murad Ali Shah son of Ghulam Nabi Shah and Lutf Ali Shah son of Mohammad Ali filed suit No.50 of 1964 against Mohammad Bux, who is respondent No.1 in the present appeal and Jafar Ali Shah, their own brother and uncle respectively for the following reliefs:-

"That the Plaintiffs prays for judgment and decree as under:-

(a) That this Hon'ble Court will be pleased to declare that the plaintiffs are the owners of the suit land to the extent of 2/3rd share.

(b) That after declaring as prayed in (a) above, this Hon'ble Court will be pleased to declare that the two alleged instruments dated 7-12-1943 which are basis of Suit No.119 of 1962 and the decree in Suit No.119 of 1962, are invalid, inoperative and not binding so far the plaintiffs are concerned to the extent of their 2/3rd share of the suit land.

(c) That this Hon'ble Court will be pleased to issue perpetual injunction against the defendants retraining them from calling themselves the absolute owners of the disputed land and not to interfere with the possession of the plaintiffs' share.

(d) To award costs of the suit to the plaintiffs.

(e) To award any other relief, this Hon'ble Court deems fit and proper for the plaintiffs."

The above suit was resisted by respondent No.1, whereas respondent No.4, Jafar Ali Shah supported the suit in his statement. The learned Civil Judge, II Class Khairpur, after recording the evidence decreed the suit to the extent of 2/3rd share in the suit survey numbers by holding that Jafar Ali Shah had no right to dispose of 2/3rd share of the plaintiffs in the suit land. Aggrieved by the above judgment respondent No.1 filed aforesaid Civil Appeal No.61 of 1968, which was allowed by the above judgment/decree dated 15-12-1972, in which inter alia it was held that before the filing of the above suit, Murad Ali Shah and Lutf Ali Shah alongwith Jafar Ali Shah executed a Registered Sale Deed on 28-5-1963 in respect of the suit land in favour of Pir Eyed Sadruddin Shah son of Pir Shah Murdan Shah Paghroo, appellant in Second Appeal No.282 of 1973 and, therefore, they had no locus standi to file the suit but at the same time the learned District Judge has also held that there was private partition inter se between the three brothers, namely, Murad Ali Shah, Mohammad Ali Shah and Jafar Ali Shah and that respondent No.1 Mohammad Bux was in adverse possession of suit land for more than the prescribed period of 12 years and that the sale in favour of the present appellant during the pendency of the previous suit was invalid.

3. In my view after having held that Murad Ali Shah and Lutf Ali Shah have no locus standi to file the suit, it was not necessary for him to touch upon the merits of the respective cases of the parties. I would, therefore, set aside the findings of the two Courts below on the merits of the respective contentions of the parties, but will maintain the finding of the appellate Court on the point that after Murad Ali Shah and Lutf Ali Shah having sold their share according to their own showing in favour of Pir Syed Sadruddin Shah had no locus standi to file the suit or to claim any relief in respect of the suit land.

It may be observed that Second Appeal No.282 of 1973 has been filed by Pir Syed Sadruddin Shah, alleged purchaser from Murad Ali Shah, Lutf Ali Shah and Jafar Ali Shah, whereas Second Appeal No.283 of 1973 has been filed by Murad Ali Shah and Lutf Ali Shah. Since I am maintaining the above finding on the question of locus standi after setting aside the findings on merits, both the appeals are to be dismissed with the above modification but there will be no order as to costs. The suit shall stand dismissed.

M . Y . H . /S-115/ K Appeals dismissed.

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