1. ' MUSHIR ALAM, J.---Plaintiff claims to be owner of the property subject-matter of the instant suit having acquired from the original allottee Ashfaq Hussain through attorney Shahnaz Naz. It seems that defendant No,1 is also claiming suit property and had filed a suit before the learned IIIrd Sr. Civil Judge at Karachi (Eats) being suit No,198/05 for declaration and injunction. It seems that the suit has since been dismissed for non-prosecution on 21-11-2005. It is also claimed that an award in favor of original allottee exists as is evident from the award available at page 297 of the file and permission to sell the property was also given to the original allottee Ashfaq Hussain by the Society, which fact is being disputed. Admittedly the property is in possession of one Imran, who has chosen not to appear in Court though the property was inspected by the Nazir, report of the Nazir to such effect, dated 4-4-2005 is also available on record. Mr. Munir-ur-Rehman appearing for the Defendant No,1 state that Defendant No,3 is occupying the same as tenant of Defendant No,l.
2. ' Mr. Shaukat Ali Shaikh learned counsel appearing for the defendant No,4 states that since dispute is between the members of the society, therefore, bar in terms of section 70-A read with section 54 of the Cooperative Societies Act would be attracted.
3. ' Having heard the arguments of all the learned counsel.
4. ' It seems that the dispute as regard the rights and interests in suit property is in issue. Plaintiff claims to have raised construction over property, which is alleged to have been forcibly occupied.
5. Since the controversy involved resolution of serious question of facts and law. In my opinion even otherwise rights between the private parties as to the title to the property cannot be adjudicated or decided under the Cooperative Societies Act. Under the facts and circumstances and in view of the rival claims of the parties ad interim orders passed earlier are confirmed. All the parties are restrained from creating any third party interest or further encumbrance Over the subject property.
6. Application disposed of in terms above.
7. ' Out of the pleadings of the parties following issues are settled:--
(i) Whether the Plaintiff is owner of suit property bearing No,A72, Block-5 Saadabad Cooperative Housing Society, Gulistan-e-Jauhar, Karachi?
(ii) Whether the property was originally allotted in the name of Ashfaq Hussain from wrom the Plaintiff claims to have acquired the property through attorney?
(iii) What is the effect of award,. Dated 15-11-2003 passed by the. Registrar's Nominee?
(iv) Which of the defendant if any is liable to pay mesne profit? If so, from what date and at what rate?
(v) Which of the party raised construction over the suit plot? If so, to what effect?
(vi) To what relief the parties are entitled to?
(vii) What should be judgment and decree be?
8. ' By consent Mr. Zaheer Minhas learned counsel is appointed as Commissioner to record evidence of the parties. All the parties are directed to supply copies of the pleadings to the learned Commissioner within one week. Parties may examine their respective witnesses by filing of affidavit-in-evidence with advance copy to the other side at least seven days before the 'date is fixed by the Commissioner. Such Commission is to be executed preferably within a period of four months. It may be observed that no further adjournment will be obtained by the parties and the defaulting party would be liable to pay Rs,2000 to the learned Commissioner. Tentatively Commissioner fee is fixed at Rs,5,000 per witness to be adjusted towards costs.