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Civil Petition No. K‑228 of 1981, decided on 3rd February, 1982.
(On appeal from the judgment and order of the High Court of Sind at Karachi, dated 21‑7‑1981 passed in Second Appeal No. 123 of 1979).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 100‑‑Second appeal‑‑Leave granted to consider inter alia question that respondents having conceded to in first appeal to certain issues decided in petitioner's favour, could not challenge those findings in Second Appeal.
Abdul Hafeez Pirzada, Advocate Supreme Court with Anwar Ahmed Qadri, Advocate‑on‑Record for Petitioner.
Khalid M. Ishaque, Advocate Supreme Court assisted‑ by Nizam Ahmed, Advocate‑on‑Record for Respondents.
Date of hearing: 3rd February, 1982.
‑This case relates to property bearing No. 73‑75, Ward‑B, Siro Ghat, Hyderabad which belongs to petitioner who was declared by the Custodian of Evacuee Property as a non‑evacuee and his properties were also declared as non‑evacuee properties by the order, dated 5‑9‑1958. According to petitioner, Noor Muhammad, respondent No. 1, trespassed on a portion of the property and constructed two shops. Some portion of the property was also transferred to Mst. Saira Bano, respondent No. 2, under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958 but later the transfer documents issued in her favour were cancelled by the Additional Settlement Commissioner by the order, dated 29‑11‑1965.
Petitioner filed a suit in the civil Court, Hyderabad against Noor Muhammad for possession the property in question and for mesne profits. In defence, Noor Muhammad, inter alia, raised the plea that the suit‑property was transferred to Mst. Saira Bano and he had raised the constructions over it with her permission. Petitioner in the circumstances joined Mst. Saira Bano as defendant No. 2 in the suit.
After recording evidence produced by the parties, learned trial Judge held that the suit‑property is a non‑evacuee property belonging to petitioner, and Noor Muhammad who alone was in occupation was a trespasser and he accordingly decreed the suit in petitioner's favour as prayed.
A joint appeal filed by the two defendants was dismissed by the Additional District Judge, Hyderabad, but a second appeal filed by them in Sind High Court succeeded in so far as the learned Judge in the High Court held that Mst. Saira Bano was in possession of a part of the suit‑property, and the judgment and decree passed by the two Courts below are not binding on her. On this view of the case, learned Judge while dismissed the second appeal of Noor Muhammad respondent, allowed it so far as Mat. Saira Bano respondent was concerned.
Petitioner now seeks leave to appeal from the judgment of the High Court, and the learned counsel appearing for him raised several points in support of the petition. He firstly submitted that in the first appeal both the respondents had conceded to all the issues decided in petitioner's favour, except for issue No. 1 relating to the status of the suit‑property as evacuee property or not, and since the finding on this issue reached by the learned trial Judge was upheld by the learned Additional District Judge, the respondents could be best challenge this finding in a second appeal and not any other finding on the rest of the issues involved in the case.
The aforesaid submission and the others raised in support of the petition deserve consideration. Leave is granted. Security Rs.2,000.
The appeal will be heard on the present record but it is open to the parties to file additional documents, if any.
M.I. Leave granted.
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