' UMAR ATA BANDIAL, J.---Learned counsel assails the judgment, dated 4-10-2005 by the learned appellate Court which affirms the judgment, dated 31-7-2004 decreeing the suit for declaration of joint ownership of the respondent, Mumtaz Khan to the extent of 10 Kanals in Khata No,1060 measuring 107 kanals 10 marlas, according to Jamabandi for the year, 1991-92 situate in Mouza Yarokhail Pacca, Tehsil and District Minawali to the extent of 10 kanals claimed by the respondent.
The only grievance of the petitioner is with respect to the following observations given by the .Learned appellate Court in its impugned judgment:-- "It is also admitted fact by the evidence of the defendants themselves that some portion of the land is still vacant. Keeping in view of these circumstances, by way of the partition, the vacant land can be given to the respondent/plaintiff in view of the mode of partition and plan of partition which has already been directed by the learned lower Court, therefore, the instant appeal has no merits and same is hereby, dismissed." (emphasis added).
2. The observations to the effect that there is vacant land and the same be given to the respondent through process of partition is attacked on the ground that the evidence on the record about the type of land covered by the khata in question goes against the finding that the land is vacant.
Learned counsel for the respondent submits that his client has only sought sub-division of the land through partition and for lack of his share therein to the extent of 10 kanals which interest is not disputed by the petitioner. Whether such sub-divided share of the respondent falls in the built up land or the vacant land is a matter that shall be determined by local commission appointed to carry out the partition. Resultantly, he submits that the concern of the petitioner expressed at the present stage is premature.
3. Submission made by the learned counsel for the petitioner is that the respondent shall have no right to be accommodated within the vacant land in khata number 1060. The observation made in the judgment of the learned appellate Court to that extent exceeds the relief claimed by therespondent and may therefore be modified. With the consent of the learned counsel for the parties the observation in the appellate order about the respondent being accommodated in vacant land in khata No,1060 is deleted. The remaining order by the learned appellate Court which affirms the order of the learned trial Court is sustained and the matter shall be decided in accordance with the said judgment as modified. Disposed of.