' MUHAMMAD AKHTAR SHABBIR, J.--- We propose to dispose of through this order C.M.A. No,160- L/2008 and Civil Petition No,194-L/2008 and Civil Petition No,172-L/2008 arising out of the same impugned judgment of the Lahore High Court, Lahore.
2. The brief facts giving rise to the present petitions for leave to appeal are that land measuring 16 Kanal, 7 Marlas, 120 sq.Ft. Belonging to one Fazal Haq son of Ahmad Ali, situated in revenue estate of Mauza Ichhra, District Lahore has been acquired by Lahore Improvement Trust for its New Garden Town Scheme. According to the policy of the Trust 2/3 of the land of each owner utilized for the said housing scheme was to be exempted in his favour in the form of developed plots on payment of development and other charges, but no compensation in any other form was payable to the land owners. The Plot No,4 measuring 2 Kanals, 16, Marlas 114 sq.Ft. Located/situated in Ali Block of New Garden Town has been exempted by the Trust in favour of Fazal Haq in the year 1969 and an agreement had been executed by the Lahore Improvement Trust in favour of the land owner on 9- 7-1970 which was registered by Sub Registrar on 14-7-1970. The said plot No,4 was thereafter put to open auction by the LDA on 30-4-1997 @ Rs,2,52,000 per Marla which was purchased by Muhammad Saleem respondent being the highest bidder at the rate of Rs,2,52,000 per Maria. The said auction-purchaser paid Rs,14,24,000 at the spot as one tenth of the total plot price which comes to Rs,1,42,43,094 and the balance amount Rs,1,28,19,094 was to be paid in twelve weeks. At the time of auction L.D.A. Did not announce or disclose that the ownership of the said plot was disputed and under litigation with some third party. Before depositing the balance amount Muhammad Saleem, respondent visited the spot/location of the plot in question and came to know that it was a disputed plot belonging to one Mian Muhammad Bashir who had filed Writ Petition No,4754 of 1997 dated 1-3-1997 in the High Court and status quo order was issued in the matter. The auction purchased Muhammad Saleem contacted the LDA authorities for settlement of the dispute and expecting that matter would be settled within short span but it has got prolonged.
The auction purchaser feeling inconvenience expressed his inability to deposit the balance amount due to litigation and requested the L.D.A. To return his 1/10 amount i.e, Rs,14,24,000 which was refused and he then filed Writ Petition No,18171/1998 praying therein that writ petition may kindly be accepted and respondents be directed to deliver the possession of the plot in dispute bearing No,4, Ali Block, New Garden Town, Lahore measuring 2 Kanals 16, Marlas 114 sq.Ft. To the petitioner after receiving the said amount Rs,1,28,190,094 and any other relief which this Honourable Court may deem fit and proper.
3. The writ petition was allowed by the High Court, vide judgment dated 30-11-2007 by the learned Single Judge of the Lahore High Court, directing the LDA to deliver the possession of the plot to the Writ petitioner subject to deposit of the balance amount.
4. The petitioner Inamul Haq, petitioner in Civil Petition No,172-L of 2008 had filed a C.M.No,1527 of 2004 before the High Court for his impleadment as respondent. Being aggrieved of the judgment of the High Court the L.D.A. As well as Inamul Haq filed two separate I.C.As. Which were heard by a Division Bench of the Lahore High Court. Both the I.C.As. Then were disposed of by the impugned order by the Division Bench of the High Court as having not been pressed. The relevant portion of the order of the Division Bench is reproduced as under:--- "(6) After hearing both the sides, we are of the opinion that on the basis of the facts stated by the learned counsel for the appellant, the rights of appellant cannot be determined in constitutional jurisdiction of this Court. It need probe and inquiry to determine the following question of law and facts:--
(i) Whether the plot in dispute was exempted way back in the year 1969 in favour of Fazal Haq the predecessor of the appellant in I.C.A. No,320 of 2007?
(ii) Whether the legal heirs of Fazal Haq have any interest/right in the property which can be enforced by a Court of law, particularly, when Fazal Haq died on 6-1-1972 and the application i.e, C.M. No,1527 of 2004 by L.Rs, of Fazal Haq seeking themselves to be impleaded as party in the constitutional petition was filed on 31-5-2004?
(iii) What is the effect of attestation of the mutation of inheritance after 32 years of the death of Fazal Haq, when land of Fazal Haq situated in Ichhra was acquired?
(iv) Whether there was any order by the competent authority, exempting the plot in question in favour of Fazal Haq. If so, what is its effect? ,
(v) Whether any formal agreement was executed between Lahore Improvement Trust and Fazal Haq. If so, what is its effect?
(vi) Whether the plot could have been sold in favour of Muhammad Saleem Bhatti, respondent, by the L.D.A. In open auction?.
(vii) When confronted with the above stated question, the learned counsel arguing the matter in ICA No,320-07 and appearing on behalf of legal heirs of Fazal Haq, concedes that all the above stated facts are to be proved through a proper inquiry by allowing the appellant to produce evidence in Civil Court, therefore, he does not press this appeal and states that he may be allowed to assert his right before the Civil Court provided the judgment dated 30-11-2007 passed by the learned Single Judge in Chamber in WP No,18171-1998 might not be a hurdle in his way and not to be considered as res judicata in the civil suit filed by the appellant in Civil Court.
(viii)Mian Nisar Ahmed, learned counsel for respondent No, 1 . i.e, Muhammad Saleem Bhatti has no objection in allowing the appellant/legal heirs of Fazal Haq to assert their rights in the plot in question in the civil suit. He states that he has no objection if the judgment passed Writ Petition No,1817 of 1998 passed by the learned Single Judge in chamber may not be considered as res judicata in civil suit and respondent/L.D.A. May also be allowed to raise all the factual and legal points before the Civil Court.
(vi)With the consent of the parties, the I.C.A. Is disposed of as having not been pressed. The appellant is allowed to assert his rights in the property by filing a civil suit. The respondent auction purchaser and the L.D.A. Shall be at liberty to raise all the factual and legal objections before the trial Court by filing written statements. The civil suit, if filed by the legal representatives of Fazal Haq, may be decided by the Civil Court expeditiously and preferably within a period of two years, after framing necessary issues and allowing the parties to produce their evidence, in accordance with law.
(x) It is to be noted that the judgment rendered by the learned Single Judge in Chamber in Writ Petition No,18171 of 1998 may not be considered as a hurdle in the way of the appellant as res judicata. The civil suit shall be decided on its own merits."
5. The I.C.As. Were disposed of with the consent of the parties as having not been pressed. The provisions of sections 96, 100, 104(1), 105 read with Order XLIII, Rule 1 of the Civil Procedure Code show that an appeal lies only against a decree or an order under the rules from which an appeal is expressly allowed by law or rules and no appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. Reliance in this context can be placed on the case of Smt. Ganga Bai v. Vijay Kumar and others AIR 1974 SC 1126. Even otherwise, as per section 96 subsection (3), C.P.C, no appeal shall lie from decree passed by Court with consent of the parties and consent of the parties cannot be challenged before the next higher forum and the High Court can adopt any course for disposal of the writ petition and party obliging Court by conduct to adopt such course cannot subsequently raise objection to such course. Reference can also be given to the cases of Abdul Wahab and others v. Habib Ali PLD 1969 Lah. 365, Gurcharan Singh, minor son and representative of Harnam Parsad, through Mangal Singh v. Gurdev Shigh and others AIR 1922 Lah.
309. The procedure and disposal of the I.C.As. As having not been pressed is covered within the above referred case law. The petitioners had their right to object the judgment passed in the writ petition through Intra Court Appeals but while withdrawing the same or not pressed before the Division Bench, they are estopped to challenge any further before this Court.
5. For the foregoing reasons, these petitions being devoid of merits are dismissed and leave to appeal refused.