MUHAMMAD ISHTIAQ And Another vs Haji FAZAL KARIM And Another
This matter concerns a petition for leave to appeal against a judgment of the Sind High Court, which affirmed the concurrent findings of the trial court and the Additional District Judge regarding a property dispute. The core issue involves whether the petitioners' structures, described as Jhuggis, are situated within the specific area of 308 square yards on plot No. 396-A, Artillery Maidan Quarters, Karachi, which was transferred to the respondent. The lower courts relied upon a Settlement Map and a report from a court-appointed local Commissioner to conclude that the structures were indeed located on the respondent's plot. The petitioners challenged this finding, arguing that the evidence, including the Commissioner's sketch and report, failed to substantiate the location of the structures within the allotted area. The Supreme Court granted leave to appeal, noting that the contentions raised by the petitioners deserved consideration. Furthermore, by consent of the parties, the Court appointed a new Commissioner under the Supreme Court Rules to investigate the boundaries and location of the plot and submit a fresh report, while restraining the eviction of the petitioners pending the final decision.
- Can the Supreme Court appoint a Commissioner to investigate and record evidence regarding property boundaries during the pendency of an appeal?
- Does a challenge to the factual findings of lower courts regarding property location constitute a valid ground for granting leave to appeal?
- Order XXXII, Supreme Court Rules 1980
ORDER
ZAFFAR HUSSAIN MIRZA, J.--The dispute in this case is whether the Judgment in occupation of the petitioners fall within the area of 308 sq. Yds. Situated on plot No.396-A, Artillery Maidan Quarters, Karachi, transferred to respondent No.1. This was the main issue in the suit filed by the respondent against the petitioners.
2. Learned trial Court held on the basis of Settlement Map and the report of the local Commissioner appointed by Court that the Judgment were located on the aforesaid plot. This finding was affirmed by the Additional District Judge and the petitioner's appeal was dismissed. Their revision application in the Sind High Court was also dismissed by the judgment dated 9-12-1984.
3. Mr. Mansoor-ul-Arfin, learned counsel for the petitioners, appearing in support of this petition for leave to appeal from the judgment of the High Court submits that there is no evidence at all to prove that the Judges are situated on the area of -308 sq. Yds. Allotted to the respondent and in this regard has referred us to the sketch prepared by the local Commissioner, the report made by him, his evidence and also the Settlement Map on which reliance has been placed by the Courts below.
4. The above submissions made by the learned counsel, amongst other, deserve consideration.
We, therefore, grant leave to appeal. Security Rs.2,000.
5. Appeal will be heard on the present record but it will be open to the parties to file additional documents, if any.
6. Petitioners shall not be evicted from the disputed premises till the appeal is decided.
7. At this stage learned counsel for both the parries pray that this Court may appoint Mr. Abdul Sattar, Advocate as a Commissioner under the provisions of Order XXXII of the Supreme Court Rules to investigate and record evidence, if any, in respect of area and boundaries of the plot in question and submit a report whether the Jhuggis of the petitioners are located within the plot in question.
Learned counsel have also filed an application in writing in this behalf. We allow this request in terms of the consent statement and order that the Commissioner shall submit his report by 30th September, 1985.