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Civil Review Petition No. 5 of 1985, decided on 2nd September, 1989.

OXX, R.6 Suit for possession of land was dismissed by Trial Court and First Appellate Court Plaintiffs and pro forma defendant jointly filed appeal before High Court which was accepted and suit was decreed High Court thus deemed to have granted a decree in favour of plaintiffs as also the pro forma defendant who had jointly filed appeal with the plaintiff.

Syed Muhammad Zaki and another v. Maqsood Ali Khan and another PLD 1976 SC 309; Ghulam Akram and 5 others v. Syed Shabbir Hussain Shah and 10 others PLD 1986 SC (AJ&K) 56; Nanak (deceased) represented by Umra and others v. Ahmad Ali and Barkat AIR 1946 Lah. 399; Wali and others v. Manak Ali and others PLD 1965 SC 651; Muhammad Hussain and another v. Muhammad Khan 1983 SCMR 16; Basham Khan and others v. Syed Shafi Shah and others 1983 SCMR 183; Muhammad Zafarullah Khan v. Muhammad Khan PLD 1975 SC 300; Sant Singh and another v. Gulab Singh and others AIR 1928 Lah. 572; Muhammad Naseer v. Hakim Dost Muhammad and 2 others 1975 SCMR 87; Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110; Mst. Sardar Begum and 2 others v. Ahmad Khan and 4 others 1983 CLC 621; Muhammad Ayub Khan and 4 others v. Chairman, Inspection Team and another PLD 1982 SC (AJ&K) 27; Muhammad Sharif v. Muhammad Ibrahim and 10 others PLD 1984 SC (AJ&K) 101; Muhammad Hanif and others v. Settlement Commissioner, Sargodha and others 1970 SCMR 672; Sakhi Muhammad and 10 others v. Noor Muahammad and 28 othersPLD 1988 SC (AJ&K) 156 and Rasab Khan and another v. Abdul Ghani and 4 others 1986 CLC 1400 ref.

O.XLVI, R.1 Civil Procedure Code (V of 1908), O.XLVII, R.1 Review of judgment Essentials Incorrectness of view is no ground for review Once a view had been taken it could not be changed in review merely because it was wrong Grounds recognized for change of view by way of review are (1) where the view taken by Court runs counter to a judgment which was binding on the Court but Court failed to notice it; and (n) where a view fails to implement provision of a Statute Party failing to show that the view formed by the Court suffered from any such recognized defect would not be entitled to seek review of judgment. Mst. Sardar Begum and 2 others v. Ahmad Khan and 4 others 1983 CLC 621 and Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110 rel.

OXXII, R.3 Abatement Where interest of a deceased party whose legal representatives were not brought on record was ascertainable distinctly from the survivin

24081 parties, the abatement only takes place in relation to the deceased party.

Mst. Sardar Begum and 2 others v. Ahmad Khan and 4 others 1983 CLC 621; Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110; Syed Muhammad Naki and another v. Maqsood Ali Khan and another PLD 1976 SC 309; Ghulam Akram v. Syed Shabbir Hussain Shah PLD 1986 SC AJK 56; Muhammad Yasin and others v. Mst. Begum Noor and others PLD 1978 SC (AJ&K) 112 and Nanak and others v. Ahmad Ali

and others AIR 1946 Lah. 399 ref.

Maulvi Siraj ul Haq for Applicants.

Kh. Muhammad Saeed for Non Applicants.

Date of hearing: 2nd September, 1989.

This is a petition seeking the reversal of the judgment and decree of this Court whereby Civil Appeal No.9 of 1983 was dismissed as having abated in its entirety. The review petition was admitted for regular hearing on 10 1.1987 by the learned Judge who decided the appeal. The petitioners pray that after recalling the earlier judgment of this Court the appeal may be heard on merits." Brief facts necessary for disposal of this petition are summarised below.

2. Pallo and Mukhtar Khan sons of Nawab Khan brought a suit for possession by redemption of mortgage against the petitioners claiming that the suit land was owned by them and their two brothers Mehanda Khan and Qasim Khan, the pro forma defendants in the suit, and the present petitioners were originally their tenants on payment of rent. It was averred that subsequently the suit land was mortgaged to the petitioners. The plaintiffs prayed for decree for possession on payment of the mortgaged amount which was shown as Rs.80. The petitioners, who are defendants in the suit, denied that they were mortgagees of the suit land and claimed that in fact they had been in adverse possession of the suit land for a long time extending to a period of more than 12 year with the result that their possession had ripened into ownership. The plea of the defendants was found as proved by the trial Court which dismissed the shit on the 30th of June, 1968. The plaintiffs appellants" appeal before the District Judge having failed, second appeal was filed in the High Court. This time Mahanda, who had not till then taken any active part in the litigation, joined as an ,appellant. The appeal succeeded and a learned Single Judge, setting aside the findings of the Courts below, found that the defendants in the suit were not in" adverse possession and were in fact mortgagees of the suit land. Consequently, the High Court passed a decree for possession on payment of mortgage money. Petition for leave to appeal was thereafter filed in this Court but before it could be heard Mehanda Khan, who was one of the respondents in the petition for leave to appeal, died. The petitioners did not bring his legal representatives on record on the ground that he was only a pro forma defendant and the appeal could proceed in absence of his heirs. When the petition for leave to appeal came up for hearing this fact was duly brought to the notice of the Court and the question whether failure on the part of the petitioners to bring on record the legal representatives of Mehanda Khan would entail dismissal of the appeal in toto on the ground of abatement was also included in the leave granting order.

3. When the appeal came up for hearing before Sher Zaman Chaudhry, J., who was then associated with this Court as an ad hoc Judge, the point of abatement and its consequences was fully argued. The learned Judge formed the view that appeal had abated so far as Mehanda was concerned and could not proceed against remaining respondents. He consequently dismissed the appeal as a whole. The reasons which found favour with my learned brother were recorded thus:

"Whether the appeal would abate in its entirety or it would continue against the remaining respondents, is now the question that needs resolution. This Court cannot be oblivious of the fact that decree for possession of the suit land through redemption has been passed by the High Court in favour of respondents, Mehanda respondent, included. The mortgage can be redeemed by every and anyone of the co owners having the equity of redemption, as has been contended by Mr. Manzoor ul Hussan Gillani, the learned Advocate for the appellants, in his written arguments placed on record. Now if appeal was to be accepted against the remaining respondents the decree in that case would have to be that the possession of appellants defendants over the suit land had, for having been hostile for more than 12 years, ripened into title. This would in turn lead to two inconsistent and conflicting decrees. In presence of the decree allowed by the High Court in favour of Mehanda Khan deceased respondent, his legal heirs being co owners and co sharer would be entitled to a share in every inch and every part of the suit land. The appeal, therefore, under the circumstances would abate in its entirety and cannot be allowed to continue against the remaining respondents. The argument on the point advanced on behalf of the appellants having no substance is, therefore, rejected."

4. The review petition filed by the petitioners is somewhat detailed and contains reasons as well as arguments in support of the prayer that the order of dismissal may be substituted by an appropriate order on merits of the case. However, a perusal of the admission order shows that the following two grounds were urged at the time of preliminary hearing:

(a) the deceased respondent Mehanda was a pro forma respondent in the redemption suit and no decree have been passed in his favour by the High Court while in the judgment under review it had been held that a decree for redemption had been allowed in Mehanda"s favour by the High Court; and

(b) in the judgment under review it had been noted that a decree for adverse possession had been allowed in favour of the petitioners by the trial Court as well as the first Appellate Court while m fact the two Courts had only dismissed the suit for redemption against the present petitioners who were defendants before the trial Court.

5. In the course of arguments before me the learned counsel for the petitioners Maulvi Siraj ul Haq elaborated the points and vehemently contended that the judgment under review stood vitiated due to, as he contended, the apparent mistakes noted above. He cited the following judgments in support of his contentions:

(1) Syed Muhammad Zaki and another v. Maqsood Ali Khan and another, PLD 1976 SC 309.

(2) Ghulam Akram and 5 others v. Syed Shabbir Hussain Shah and 10 others" PLD 1986 SC (AJ&K) 56.

(3) Nanak deceased, represented by Umra and others v. Ahmad Ali, plaintiff and Barkat, Defendant" AIR 1946 Lah. 399.

(4) Wali and others v. Manak Ali and others PLD 1965 SC 651.

(5) Muhammad Hussain and another v. Muhammad Khan 1983 SCMR 16.

(6) Basham Khan and others v. Syed Shafi Shah and others 1983 SCMR 183.

(7) Muhammad Zafarullah Khan v. Muhammad Khan PLD 1975 SC 300;

(8) Syed Muhammad Naki and another v. Maqsood Ali Khan and another PLD 1976 SC 309.

(9) "Sant Singh and another v. Gulab Singh and others AIR 1928 Lah. 572.

6. Kh. Muhammad Saeed, the respondents" learned counsel, opposed the review petition and submitted that the very premise on which the petition is based was wrong. He contended that the High Court did in fact pass a decree in favour of deceased Mehanda Khan jointly with three others, namely, Muhammad Ashraf, Mukhtar and Qasim Khan. On the other question regarding effect of the dismissal of a suit Kh. Muhammad Saeed argued that dismissal of a suit did result in a decree in favour of the defendants. He alternatively argued that if the dismissal of the suit on the ground that the defendants" possession had ripened into ownership did not legally amount to a decree, the finding itself would be on the face of it contradictory with the decree of redemption which has already attained finality in favour of Mehanda Khan deceased and the two could not be reconciled. Kh. Muhammad Saeed submitted that the review petition amounted to an attempt at reversal of a view taken by the Court which is not a valid ground for review. He relied on the following cases:

(1) Muhammad Naseer v. Hakim Dost Muhammad and two others 1975 SCMR 87,

(2) Faqir Muhammad Khan v. Mir Akbar Shah" PLD 1973 SC 110,

(3) Mst. Sardar Begum and 2 others v. Ahmad Khan and 4 others 1983 CLC 621,

(4) "Muhammad Ayub Khan and 4 others v. Chairman Inspection Team and another PLD 1982 SC (AJ&K) 27,

(5) Muhammad Sharif v. Muhammad Ibrahim and 10 others PLD 1984 SC(AJ&K) 101,

(6) Muhammad Hanif and others v. Settlement Commissioner, Sargodha and others 1970 SCMR 672,

(7) Sakhi Muhammad and 10 others v. Noor Muhammad and 28 others PLD 1988 SC (AJ&K) 156,

(8) Rasab Khan and another v. Abdul Ghani and 4 others 1986 CLC 1400.

7. It will be useful to first resolve the question whether a decree stands in favour of Mehanda deceased or not When the suit was filed in the Court of Sub Judge Mehanda did not join his two brothers as a plaintiff but after the dismissal of the suit as well as the subsequent first appeal Mehanda joined hands with his brothers and was one of the appellants before the High Court. Being an appellant he quite naturally prayed for a decree of redemption in his favour. The learned counsel for the petitioners Maulvi Siraj ul Haq vehemently contended that Mehanda was not one of the persons in whose favour decree had been passed by the High Court. He pointed out that while accepting the appeal the High Court decreed the suit in favour of the plaintiffs appellants" and before a person could claim that a decree had been passed in his favour he had to answer to both these descriptions, namely, that he was a plaintiff and also that he was an appellant before the High Court. The learned counsel submitted that Mehanda was not plaintiff in the suit, therefore, no decree had been passed in his favour. Kh. Muhammad Saeed, on the other hand argued that Mehanda was a pro forma defendant in the suit and a decree could be passed in his favour. Apart from that he duly appealed against judgments and decrees of Courts below and on that ground a decree had been duly passed in his favour by the High Court.

8. I am not ready to go into the technicalities of this nature because such small technicalities have no significance in our legal system. Suffice it to say Mehanda was one of the parsons who filed an appeal before the High Court and prayed for a decree. Consequently a decree has been prepared in favour of A Mehanda and it was nobody"s case before the Supreme Court that the decree sheet was inconsistent with the judgment of the High Court. Thus I have no hesitation in holding that it has been correctly rewarded in the judgment under review that there is a decree in favour of Mehanda deceased. The first ground on which review is sought thus fails.

9. The other ground relates to the observation recorded in the judgment under review that if the present petitioners" appeal was to be accepted two contradictory decrees would come into existence, namely, redemption decree in favour of Mehanda deceased against whom the appeal has admittedly abated and the other in favour of appellants defendants that their adverse possession had ripened into title. It is contended by the learned counsel for the petitioners that the acceptance of the present petitioners" appeal would only mean the dismissal of the suit filed by the plaintiffs but would not amount to a decree. In short contention of the learned counsel for the petitioners is that a dismissal of a suit does not amount to passing of a decree while dealing with this question the judgment under review contains the following observation:

"Now if appeal was to be accepted against the remaining respondents the decree in that case would have to be that the possession of the appellants defendants over the suit land had, for having been hostile for more than 12 years, ripened into title."

It is not the petitioners" case that this observation is based on any incorrect assumption of a material fact. What is being contended, in my view, amounts to saying that the learned. Judge has taken an incorrect view of law because the clear import of the above extracted observation is that the learned Judge was of the view that if a suit for redemption is dismissed on the ground that defendants had been in adverse possession for more than 12 years, it amounts to a decree of title in favour of the defendants. The petitioners practically want to me to hold that this view is not correct. It is well settled that incorrectness of view is no ground for review. Once a view have been taken it cannot be changed in review of the judgment merely because it is wrong. No doubt there are grounds which are recognized for change of view by way of review, for instance, if the view taken by a Judge runs counter to a judgment which was binding on the Judge but he failed B to notice it as was held in Mst. Sardar Begum and 2 others v. Ahmad Khan and 4 others 1983 CLC 621 and Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110. Another possible ground is that a view fails to implement provision of a statute. It has not been shown to me that the view formed by the learned Judge suffered from any such recognised defect and I find that there is no such situation in the present case. The judgments cited by the learned counsel for the petitioners Maulvi Siraj ul Haq do not advance the case of the petitioners.

8. Out of the cases cited in support of the petition for review Syed Muhammad Naki and another v. Maqsood Ali Khan and another PLD 1976 SC 309, review was allowed when it was found that the judgment proceeded on erroneous assumption of fact that Additional Settlement Commissioner had recorded the finding that the respondent participated in earmarking scheme by filing the prescribed form and as such became disqualified for transfer of property under the relevant settlement scheme. It was found in review that in fact the said Officer had never recorded that finding. The wrong assumption was held to be of material nature and review was allowed.

9. In case titled Ghulam Akram v. Syed Shabbir Hussain Shah" PLD 1986 SC (AKJ) 56 the facts were that in a suit for pre emption the pre emptor failed to make payment of decretal amount to the vendees within the specified time. After consuming the allowed period he submitted an application that he may be allowed further time but the same was dismissed by the District Judge. An appeal was filed before the High Court which also rejected the prayer. The pre emptor appealed to this Court by moving a petition for leave to appeal. The appeal was accepted and the pre emptor was allowed time for depositing the decretal amount. However, in the operative part of the order of this Court it was directed that upon deposit of the decretal amount the vendee was to deliver possession of the suit land to the pre emptor. Therefore, a review petition was filed in this Court which was accepted on the ground that the order of this Court proceeded on the assumption as if merits of the case had already been determined while it was not so. In fact judgment of the trial Court had not been scrutinized either by the District Judge or by the High Court on merits. The Supreme Court itself also decided the appeal in favour of the petitioner without adverting to the merits of the case in so far as the prior right of pre emption was concerned. It is obvious that the only order which could have been passed by this Court was one of remand for adjudication on merits of the case which the Court omitted to do due to failure of the Court to note that merits had not been gone into.

10. The next case cited by Maulvi Siraj ul Haq is Sant Singh and another v. Gulab Singh and others AIR 1928 Lah. 573. In this case a Bench of five Judges was constituted to answer the following question: "X sells immovable property to A, B, C and D. In the sale deed it is stated that the property has been sold to the vendees in equal shares. The reversioners of the vendor institute a suit for a declaration that the sale shall not affect their reversing rights after the vendor"s death. The suit is dismissed and the plaintiffs appealed. During the pendency of the appeal A, one of the vendees, dies and as his representatives are not brought on the record within time the appeal abates as against A. Can the appeal proceed against B, C & D, the surviving vendees respondents, or must the abatement of the appeal as against A result in dismissal of the appeal in its entirety "

The Full Bench unanimously held that the appeal could proceed against the surviving vendees. In the appeal the share of the surviving vendees respondents was ascertainable as is clear from the words "sold to the vendees in equal shares" and it is well settled that where interest of the deceased party whose legal representatives are not brought on the record is ascertainable distinctly from the surviving parties the abatement only takes place in relation to the deceased party. This is the view which has been adopted by this Court in different cases. I may) refer to a case titled "Muhammad Yasin and others v. Mst. Begum Noor and others PLD 1978 SC (AJ&K) 112 in which Raja Muhammad Khurshid Khan, J., (as he then was) spoke for the Court thus:

"It is now settled that where the rights of the plaintiffs and the defendants are ascertained or ascertainable, the death of one or more of them cannot cause the abatement of the entire suit. A suit in such cases shall only abate with reference to such of the plaintiffs or defendants whose legal representatives have not been substituted but rights of other parties shall be adjudicated on the merits of the case:"

The same view has been expressed by this Court in another case (Civil Appeal No.28 of 1985) titled "Muhammad Aslam v. Muhammad Sabir". In the present case the share of Mehanda Khan deceased is not ascertainable, therefore, the principle laid down is Sant Singh"s case cited by the learned counsel for the petitioners has no bearing on the case. Then the learned counsel relied on Nanak and others v. Ahmad Ali and others" AIR 1946 Lah. 399. This is also a Full Bench case. Facts of the case were that one Ahmad Ali filed a suit for cancellation of sale deed executed by one Gamani in favour of Nanak and Khair Din. The suit was dismissed but on first appeal the claim was decreed and it was found by the Senior Civil Judge that Nanak and Khair Din were trespassers. During the pendency of the appeal in the Lahore High Court Nanak, one of the two appellants, died and his legal representatives were not brought on the record within time. The question whether the abatement to the extent of Nanak would result in the total dismissal of the appeal or whether the appeal of Khair Din could still proceed was referred to a Full Bench. The Bench came to the conclusion that Khair Din"s appeal could proceed without the legal representatives of the other appellant. The reasoning adopted by the Court for reaching that conclusion may be summarised thus. According to the decree passed by the first Appellate Court both the appellants before the High Court were mere trespassers. "Each trespasser had an independent right to appeal against this decree and the mere circumstance that one of the defendants does not appeal from the decree or even confesses judgment would not disentitle the other to appeal." It will be seen that the facts and ratio of this case also are substantially different from the present case.

11. In "Muhammad Hussain and another v. Muhammad Khan 1983 SCMR 16," the High Court and the Courts below had found that the pedigree table proved in the case, by itself, could not prove the factum of relationship and the Supreme Court of Pakistan declined to grant leave to appeal. When a review was filed the Court was persuaded to review the order and grant leave in the case when it was brought to the notice of the Court that a statutory presumption was attached to the pedigree table and, in absence of any rebuttal by the respondent, the presumption so arising could have been acted upon without any oral evidence to supplement it and that this aspect had been overlooked by the Courts below and also not considered by the Supreme Court. Facts of Basham Khan and others v. Syed Shafi Shah and others 1983 SCMR 183 are that Supreme Court of Pakistan vacated the order of Chief Land Commissioner on the ground that it had been passed without hearing the other party but when in a review petition it was shown to the Court that the Chief Land Commissioner had in fact heard the parties before passing the order the Supreme Court found that this was an error apparent on the face of the record and review was allowed. In "Muhammad Zafarullah Khan v. Muhammad Khan and another PLD 1975 SC 300, the Supreme Court of Pakistan dismissed a review petition holding that decision based on the erroneous assumption of fact is available for review but it is not a matter of right and the Court has to see whether even if the finding based on the erroneous assumption is excluded there is any ground for review of judgment. O.Rm, O.M. Sp. Firm v. P.L.N.K.M. Nagapa Chettiar and another AIR 1941 PC 1 cited by Maulvi Siraj ul Haq, does not deal with the question of abatement. As a result of the foregoing the review petition is dismissed.

AA./263/S.CA. Review dismissed.

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