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Civil Revision No.1446 of 1986, decided on 17th November,1986.

‑‑‑0. I, R. 10‑‑Necessary or proper party‑‑Determination and impleading of‑‑Party having no subsisting interest in suit property, held, could not be considered to be necessary or proper party to suit and as such could not be made party therein.

Seerat Hussain Naqvi for Petitioners.

Nemo for Respondent No.l. ,

Allah Wasaya Malik for Respondent No.2.

Date of hearing: 17th November, 1986.

This petition seeking revision of the order of the learned Civil Judge, Bhakkar, dated the 15th January, 1986, allowing respondent 2 to be impleaded as defendant in the suit brought by the petitioners against respondent 1 arises out of the following circumstances On the 17th June, 1984, the petitioners instituted suit for a declaration that they were owners in possession of 173 Kanals 13 Marlas of the land in dispute situate in the area of village Bait Makhiwala, tehsil and district Bhakkar, that respondent 1 had no connection therewith and for the issuance of permanent injunction restraining him from interfering with their possession. They averred that respondent 1, who was the original owner of the land in question had gifted and handed over its possession to them and consequently they had become owners thereof During the pendency of the suit respondent 1's brother's daughter, Mst. Bilqis Mai, respondent 2, moved application under Order I, Rule 10 of the Code of Civil Procedure for being impleaded as party. She stated that respondent 1 professed Shia faith and according toy Shia law of inheritance she was his heir. She alleged that the petitioners had brought suit to deprive her of her prospective right of inheritance. According to her respondent 1 was very old, blind, deaf and nearing end of his life. She averred that the petitioners had given out their father, Sarfraz Khan, to be Mukhtar‑i‑Aam of respondent 1 though Mukhtarnama in his favour had been cancelled by the order of the Deputy Commissioner on the 23rd April, 1984. Claiming her entitlement to inherit the property of respondent 1 after his death and describing the petitioners' suit to be mala fide she prayed for being made a party to the suit so that she could properly contest the suit. Though her application was opposed by the petitioners as well as by respondent 1 the learned trial Court was favourably impressed by the fact that she was a prospective heir of respondent 1. Taking into account the old age and phws31 infirmity of respondent 1 he thought that respondent 1 was unable to protect his valuable rights with regard to his property and, therefore, it could not be ruled out that his consenting statement was not voluntary. Consequently he directed that respondent 1 be arrayed as defendant in the suit.

2. The contention of the learned counsel for the petitioners that spes successionis was not recognized in Muslim law of inheritance and, therefore, respondent 2 having no existing right in the property in dispute could not be made a party to the suit has not been successfully controverted by the learned counsel for the respondents Having no subsisting interest in the property respondent 2 could not be said to be a necessary or proper party to the suit. The impugned order making her a party suffers from illegality. The petition is accepted and the impugned order is set aside. The parties are left to bear their own costs.

H.B.T. Petition accepted. ‑

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