ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                C.P No. D- 87  of 2006          

DATE         ORDER WITH SIGNATURE OF JUDGE

                                                                        Present:

                                                                        Mr. Justice Amir Hani Muslim,

                                                                        Mr. Justice Ahmed Ali Sheikh,

1. For Katcha Peshi

2. For hearing of MA 300/06.

05.11.2009

Mr. Hassan Mehmood Baig, Advocate for the Petitioners.

Mr. Allah Bachayo Soomro, Additional A.G for Respondent No.1.

Mr. Aijaz Ali Hakro, Advocate for the  Respondents No.2,3,4 & 6.

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            We have heard the learned Counsel and have perused the record.

            The only point before this Court is that whether a compromise can be reached between the parties in an appeal before the Board of Revenue preferred by the Respondents No.2 to 6 against the Respondent No.7, who happens to be the real brother of the Petitioners, who were not party to such compromise without impleading them as party in the appeal.

            The case of the Petitioners is that their father owned the land, which is subject matter of these proceedings, and after his death an appeal was preferred by the Respondents No.2 to 6 before the Board of Revenue against the cancellation of the grant. The Respondents No.2 to 6 had only impleaded one of the legal heirs of deceased Ghulam Haider, who claims to be the owner of the land. During proceeding of appeal, compromise reached between the parties to the exclusion of the petitioners, who in law were the legal heirs and entitled to inherit the properties of their father. This compromise was challenged by the Petitioners before the Appellate Forum by way of Review Application, which was dismissed, against which present proceedings have been filed.

            It is contended by the learned Counsel for the Petitioners that no compromise can be reached by the parties to the exclusion of all the legal heirs. It is an admitted position that the Respondent No.7 was one of the legal heirs of deceased Ghulam Haider and he was only impleaded as Respondent in the appeal to the exclusion of other legal heirs.

            We are clear in our mind that if the claim of the Respondent No.7 flows from the plot inherited by his father then he cannot be the only person entitled to the land, which was subject matter of these proceedings, but in fact all the Petitioners had a right to be joined as Respondents. Since the issue is confined in regard to the compromise, we hold that such a compromise is not permissible in law as it is without consent of the Petitioners, who are co-sharers are entitled to inherit the land of their father which was subject matter of appeal. In this respect we rely upon the judgment of Honourable Supreme Court of Pakistan in the case of H. M. SAYA & Co., KARACHI V. WAZIR ALI INDUSTRIES LTD., KARACHI AND ANOTHER reported in P.L.D 1969 Supreme Court 65.

            We accordingly allow this petition. The compromise reached between the parties in appeal before the Board of Revenue is set aside and the Member Board of Revenue shall hear the appeal on merits after allowing to implead the Petitioners as Respondents. The appeal would be heard and decided on merits within three months from the date of communication of the order. The listed application is also disposed of.

                                                                                                JUDGE

                                                            JUDGE

Ali Haider.