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Civil Petition No. 508 of 1980, decided on 5th March, 1985.

(Against the judgment and order, dated 10‑4‑1980 of the Lahore High Court, Lahore, in R . S . A . No. 752 of 1965).

Constitution of Pakistan (1973)‑‑--

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 9 Colonization of Government Lands (Punjab) Act (V of 1912), S. 19‑‑Suit for declaration and possession‑‑Decree set aside in first but restored in second appeal‑‑Judgment impugned‑‑Leave granted for closer scrutiny, and authoritative pronouncement on questions: (i) that no oral evidence whatsoever was recorded; (ii) that objection to admissibility of statement made in different proceedings was not disposed of and document was admitted in evidence and misread; and (iii) that conduct of parties in allowing period that had elapsed after transaction and application/effect of S. 19 of Colonization of Government Lands (Punjab) Act (V of 1912) and acquisition of proprietary rights, need examination.

Ch. Asghar Ali Bhatti, Advocate Supreme Court instructed by Iqbal Ahmad Qureshi, Advocate‑on‑Record for Petitioners.

Iftikhar‑ul‑Haq, Advocate Supreme Court and S. Abid Nawaz, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 5th March, 1985:

.‑‑The petitioners seek leave to Appeal against the judgment of the Lahore High Court, dated 10‑4‑1980 whereby a regular second appeal filed by the plaintiff‑respondents was allowed and the judgment of the Administrative Civil Judge, was restored.

The plaintiff‑respondents had instituted a civil suit claiming l/3rd share in agricultural land on the basis that certain alienations made were sham transactions and there was an understanding that the property would be distributed among the brothers in equal shares. In this manner old transactions entered into .as early as 1938 were sought to be avoided and given a different colour and complexion. The suit was contested. The trial Court ultimately granted a decree of the 1/3rd share asked for and in addition 3/16 shares on account of death of the main contestant Ghulam Nabi during the pendency of the proceedings without an issue. The trial Court ordered that:‑---

"The plaintiff should amend his prayer clause and should also pay court‑fees regarding 3/16 shares of the suit property within two months if he pays the court‑fees within the prescribed period then he is granted decree for possession in his favour (sic) will be simply for 1/3rd share of the property left by Amir Jan.

The first appeal of the petitioners was accepted and the suit dismissed.

On second appeal the High Court set aside the judgment of the first appellate Court and restored the decree of the trial Court.

The learned counsel for the petitioners seeking leave to appeal has contended that in this case no oral evidence whatsoever was recorded. There was an objection by the petitioner to the admissibility of Exh. P.7 a statement said to have been made by Ghulam Nabi in different proceedings. His objection was not disposed of and that document was not' only admitted in evidence but misread with a view to make out a case against the petitioner while in fact the document had not such effect.

The learned counsel has also drawn our attention to the conduct of the parties lit allowing the period that had elapsed after the transaction and the application and the effect of section 19 of Colonization of Government, lands and the acquisition of proprietary rights by Ghulam Nabi himself.

We find that, the questions raised by the learned counsel for the petitioner require a closer scrutiny and an authoritative pronouncement. For this leave to appeal is granted. Security Rs. 2,000. The appeal to be heard on the present record with liberty to the parties to file such additional documents as they may consider necessary.

Status quo in the meantime to continue.

M.I. Leave granted.

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