MUHAMMAD AYUB through L.Rs, and others vs GHULAM MUHAMMAD and others

ORDER

1. ' TANVIR AHMED KHAN, J.--- Leave to appeal is sought against the judgment, dated 18-11-1999 whereby a learned Single Judge of the Lahore High Court, Lahore, accepted the writ petition filed by the respondents and set aside the judgment and decree dated 6-6-1984 of the learned Senior Civil Judge, Kasur, and held that the suit filed by the respondents would be deemed to be pending and would be decided afresh.

2. ' The dispute in this case pertains to a plot measuring 14 Marlas bearing Khasra No,1719 situated at Gandhian Road, Kot Radha Kishan District Kasur. According to the averments contained in the petition, the above plot was purchased by Habib-ur-Rehman, real brother of Muhammad Sadiq, the predecessor-in-interest of respondents, in the year, 1938 through a registered sale-deed. The respondents purchased the said plot from Habib-ur-Rehman through two sale-deeds dated 12-1- 1974. Muhammad Sadiq tiled a declaratory suit on 23-1-1974 claiming ownership and possession of the disputed plot averring that his brother Habib-ur-Rehman was merely a Benamidar. During the pendency of the suit Muhammad Sadiq expired and the petitioners were brought on record being his legal heirs and an amended plaint was filed and the suit was ultimately dismissed on 27-2-1979 being infructuous in view of the transfer order issued by the Settlement Authorities.

3. ' The present respondents, when came to know about the transfer order, dated 23-4-1974, tiled a declaratory suit taking exception to the above transfer order as having been secured through fraud and misrepresentation. The learned Senior Civil Judge, Kasur, vide his judgment dated 6-6- 1984 dismissed the suit being not maintainable. The respondents then filed Writ. Petition No,269-R of 1984 before the Lahore High Court, Lahore, taking exception to the transfer order, dated 23-4- 1974. A learned Single Judge through his judgment dated 18-11-1999, impugned herein, accepted the writ petition and remanded the case to the Senior Civil Judge to decide the same afresh.

4. Hence, this petition for leave to appeal.

5. ' The only point argued by the learned counsel for the petitioners is that the respondents never challenged the order of the learned Senior Civil Judge dated 6-6-1984 dismissing their declaratory suit. The learned Single Judge of the High Court has committed an error in remanding the case again by setting aside the order of the learned trial Court dated 6-6-1984. According to him, in the writ petition exception was only taken to the transfer order, dated 23-4-1974 of the Settlement Authorities.

6. ' We have considered the contention raised above and have gone through the entire documents appended with this petition. It is reflected from the perusal thereof that Muhammad Sadiq, predecessor-in-interest of the petitioners, took contradictory stances. He earlier stated that he purchased the plot in dispute from the evacuee Jaswant Singh and subsequently took another plea that the same was transferred by the Settlement Department. After the repeal of Settlement Laws all these factual controversies could be resolved by the Civil Court of plenary jurisdiction. It is to be appreciated that in the declaratory suit exception was taken to the order of the Settlement Authority, dated 23-4-1974 which suit was dismissed being not maintainable. In these circumstances no illegality has been committed by the learned Single Judge in remanding the case to the trial Court to judge the veracity of the transfer order. The instant petition is, accordingly, dismissed and leave declined.