PROVINCE OF SIND versus MUHAMMAD HUSSAIN

Code of Civil Procedure 1908 Section 96 & OX, R16 Sindh Chief Court Rules, Section 125 Suite Born from Civil Suit by Appellant for Settlement of Emergency Repair Work Accounts The province) was approved under the preliminary injunction and a commissioner was appointed to take the accounts, who submitted their report, under which the court maintained the hearing of the respondents' claims against the appellant in a certain amount and Ordered that another Commissioner with technical knowledge be appointed with the approval. After the respondents filed an appeal before the District Judge, who appointed the trial court to the extent of appointment of another Commissioner Trial Court, the order of the District Judge to prepare the final order as per the Commissioner's report. Is fixed. The court prepared the final order accordingly, the District Judge obtained the remand for reference. He asked the Commissioner to clear the defects in his report and to comply with Rule 125 of the Sindh Chief Court and to submit a new report Therefore, the trial court directed the district judge to prepare a final order because of a mistake. The trial court had set aside the appeal and the case was referred to the trial court so that it could be sent to the commissioner for a fresh report in light of the district judge's observations.

1987 M L D 2856

[Karachi]

Before Saeeduzzaman Siddiqui, J

Mir GHULAM ABBAS and 4 others--Applicants

versus

Mst. SARAN and 13 others--Respondents

Revision Application No.97 of 1981, 'decided on 8th September, 1987.

Specific Relief Act (I of 1877)--

--S.42--Suit for declaration and permanent injunction claiming Mokhadmi right in Jagir--Jagirdar, held, had soil right on Jagir and as such Mokhadmi right could not be claimed by any one in respect of same Jagir.

Mir Haji Khan and 11 others v. Mir Ejaz Ali Khan and others P L D 1981 S C 302 rel.

Imam Ali Kazi for Applicants.

Namitullah Qureshi for Respondents.

Date of hearing: 8th September, 1987.

JUDGMENT

Learned counsel for the parties jointly state that this Revision can be disposed off in view of the pronouncement of the .Supreme Court in the case of Mir Haji Khan and 11 others v. Mir Ejaz Ali Khan and others P L D 1981 S C 302. It may be stated here that the respondents in the Revision Application instituted a civil suit for declaration and permanent injunction claiming Mokhadmi right in Litnyo Jagir bearing ;survey Nos.2,4 to 20 measuring 126 acres. The suit was dismissed by the trial Court but on appeal the learned first appellate Court decreed the suit against which the present Revision Application has been filed. The question raised in this Revision Application relates to the same Jagir which was subject-matter of decision in the case of Mir Haji Khan and others v Mar Ejaz Ali, referred to above. In fact Haji Khan who was partly in the above cited case is also a party in the present Revision Application. It is conceded by the learned counsel for the respondents that in view of the Supreme Court decision referred to above the decree of the first appellate Court cannot stand as according to the judgment of the Supreme Court the Jagirdar is held to have soil right in Jagir and as such Mokhadami right could not have been claimed by any one in respect of the same Jagir. This Revision Application is accordingly allowed. The judgment and decree of the first appellate Court is set aside but there will be no order as to costs.

M.Y.H./G-44/K Petition allowed.

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