1. IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This appeal by leave of the Court is directed against the judgment dated 2-6-2009 concluding para wherefrom reads as under:-- "Be that as it may, since appellants Nos. 2 and 4, who are also donee of the property in question are present before Court and admittedly the said property is not capable of partition. In the circumstances, we appoint Nazi' of this Court to dispose of the property bearing Nos. J-176-177, Shah Saman Road, P.I.B. Society, Karachi, admeasuring 400 sq yards by calling public A bids. The parties are entitled to participate in auction by matching the highest bid before the Nazir. The question whether only the respondent No,2 along with appellants Nos. 2 and 4 are entitled to 1/3rd share equally in the sale proceed or other legal heirs are also entitled, will be decided by the learned Judge on original side after recording the evidence.
2. ' Listed appeals in the above terms; stand disposed of along with pending applications."
2. Precisely stated, facts necessary for disposal of the appeal are that respondents Nos. 1 to 4 Mst.
3. Siraj, Mst. Sarry, Laiq Sher Khan and Khursheed Ali along with others filed a suit for partition, mandatory injunction and permanent injunction in respect of property details of which were mentioned in the petition. The suit was contested and the appellant Mumtaz Ahmed Khan while filing written statement conceded to the claim of the respondents relating to partition of the property in terms of para-1(a) of the prayer clause of the plaint,, whereas rest of the claim of the plaintiffs was denied. During pendency of the suit an application under Order XXII, rule 6, C.P.C. Was filed for decreeing the suit. Learned Single Judge disposed of the suit in the following terms:-- "This is a suit for partition. The defendants Nos. 1, 2, 4 and 5 have accepted the claim of plaintiffs.
4. The said defendants are transposed as plaintiffs Nos. 6 to 9.
5. ' The application moved for decree on admission against defendant No, 2 is clearly not maintainable as there is no clear, unconditional and unequivocal admission on the part of defendant No, 2 on the basis of which this suit can be decreed against him.
6. ' In view of the above, precious time of the court was wasted unnecessarily and, therefore, a cost of Rs,10,000 is imposed on the plaintiffs. The amount of cost is to be deposited with the Nazir of this Court within 10 days, which if deposited, is to be appropriated towards the High Court Employees Benevolent Fund."
7. ' Both sides filed separate appeals against the above order before the High Court. Learned Division Bench of the High Court of Sindh disposed of the appeals vide impugned judgment concluding para wherefrom has been reproduced herein before. A perusal of the above para of the judgment indicates that learned Division Bench has observed that Mumtaz Ahmad Khan, Mst. Sarry and Khursheed Ali admitted that property is not capable of partition as such directions were given for determination of the price of the property through auction. For determination of shares of the parties and distribution of sale proceed it was left to be decided by the learned Single Judge as per the ratio of the shares stated therein. Learned counsel for the appellant was called upon to explain as to how the appellant was aggrieved by the above order. His contention was that the application under Order XII, rule 6 could not be accepted because the admission of the appellant was conditional but when we enquired from him that once he admitted the partition of the property by way of auction and so far as remaining portion of the prayers of plaint are concerned no one agitated at this stage, the appellant should not have been aggrieved, he could not give a satisfactory answer. His next contention that as far Safdar Ali, respondent No, 5 was concerned, he had not accepted the claim, it is to be noted that Safdar Ali has not expressed any grievance about the above order because he has not filed any petition which would mean that he also conceded to the same and similarly all other heirs of late Mir Feroza have also not challenged the said order, therefore, they, too, do not seem to be aggrieved. In the circumstances, it is not difficult to conclude that the arrangement made by the learned High Court between the parties for partition of joint property is acceptable to every one and instead of prolonging the proceedings for one or the other technical reason, it would be better that following the judgment of the High Court the property is partitioned and their respective shares are determined as per the ratio mentioned in the judgment noted hereinabove.
8. ' In view of the above discussion we are of the opinion that under the circumstances, the order of the High Court admits no interference. Therefore, this appeal is dismissed leaving the parties to bear their own costs.