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Civil Appeal No. 201 of 1978, decided on 2nd July, 1983.

(On‑appeal from the judgment dated 17‑5‑1978 of the Lahore High Court in C. R. No. 567 of 1978).

Constitution of Pakistan (1973)‑

---Art. 185 ‑ Supreme Court did not interfere with clarification issued by High Court in matter pending before High Court‑Question involved in revision before High Court very short one, namely whether suit of appellant (before Supreme Court) was barred on ground of limitation‑Supreme Court observed that High Court may, if possible, give priority to case and dispose same on merits within 3 months.

A. Karim Malik, Advocate Supreme Court and Merajuddin Ch., Advocate -on‑Record for Appellants.

Zafar Pasha, Advocate Supreme Court and M. A. Qureshi, Advocate‑on -Record for Respondents.

Date of hearing : 2nd July, 1983.

NASIM HASAN SHAH,

J.‑The dispute in this appeal relates to about 77 Kanals and 10 Marlas of land, which formed 'part of a bigger plot owned by one Noor Muhammad, who died in 1956. On Noor Muhammad's death, 1/4th of this area of 77 Kanals and 10 Marlas was mutated in favour of his widow Mst. Naik Bibi, who is the third respondent in this appeal, whilst 3/4th was mutated in the name of the paternal aunt of the deceased Mst. Ghulam Fatima. On the death of Mst. Ghulam Fatima in 1962, her share was inherited by Noor Muhammad respondent No. 2 herein, who sold the land thereafter to one Imam Din on 27‑4‑1966. On the death of the said Imam Din, the land purchased by him was mutated in the name of his son Ismail, who is respondent No. 1 herein.

On the 20th July, 1972 the appellant filed a suit against the respondents in the Court of the Civil Judge, Nankana for a declaration that she was entitled to a 3/4th share in the estate of Noor Muhammad deceased, because she was the real sister of the said deceased. The suit was contested by the respondents but it was decreed by the trial Court in 1976. The respondents filed an appeal against this judgment in the District Court, Sheikhupura but the appeal was dismissed by the learned District Judge on 20th April, 1978. Therefore, they filed a revision in the Lahore High Court, which was admitted only for examination of the question whether the appellant's suit was hit by limitation. Together with the revision, the respondents had filed an applica tion for interim relief and when the revision was admitted, notice of the stay application was accepted by the learned counsel for the appellant. He opposed the stay application and produced documents in support of the judgment in her favour by the lower Courts. In fact, both sides produced copies of the relevant Khasra Girdawries, whilst the appellant had also filed affidavit of Ibrahim and Fateh Muhammad, who were admittedly in cultivat ing possession of the land in dispute in the stay application.

The learned Judge of the High Court, who was hearing this matter, exa mined the documents produced by the parties and he reached the conclusion that the tenants in cultivating possession of the land in dispute had been put in possession of the said disputed land by the respondents; therefore, he allowed the stay application of the respondents with the observation that‑

"The status quo shall be maintained with the clarification that the possession is that of petitioners (respondents herein) on the 3/4th of the area about which decree has been passed in favour of Mst. Bibi."

Aggrieved by this order, the appellant has filed this appeal by leave of this Court.

The learned counsel for the appellant argued before us that the docu ments filed by the parties before the learned Judge had been misread by him which has resulted in his exercising his discretion against the appellant illegally.

Mr. Zafar Pasha, learned counsel for the respondents on the other hand drew our attention to the fact that the learned Judge in the High Court had, on the suggestion of the counsel of the appellant himself, examined Fateh Muhammad, who was present in person before the Court and stated that he had been in possession of Khasra No. 1 of Square No. 25 for the last 4/5 years. From this statement, the learned Judge concluded that Fateh Muhammad had been occupying the land as tenant before attestation of the mutation in favour of Mst. Bibi. In regard to Ibrahim, Mr. Karim Malik, learned counsel for the appellant had made a concession that he was previously a tenant of Ismail (respondent herein) and had attorned in favour of Mst. Bibi after the sanction of the mutation in her favour. In these circumstances, the learned Judge observed that apart from the Khasra shown in the actual occupation of Ismail, respon dent herein, the other area was in possession of his tenants and those tenants had now attorned in favour of Mst. Bibi. This attornment on the basis of an agreement between Mst. Bibi on the one hand and his tenant on the other, was not found acceptable. The clarification made by him and noted by us above was, accordingly, made in these circumstances.

After hearing learned counsel for both the parties we are, therefore, not inclined to interfere with the clarification issued by the learned Judge of the High Court in a matter which is pending before it. We, however, feel that the question involved in the revision petition itself is a very short one, namely, whether the suit of the appellant herein was barred on the ground of limitation. We would, therefore, like to express a hope that the High Court may, if it is possible, give priority to this case and dispose it of on the merits in the month of October, 1983.

This appeal, with the above observations, is disposed of accordingly with no order as to costs.

M. Z. M. Appeal disposed of.

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