1. BASHARAT AHMAD SHAIKH, J.---Present appeal by leave of the Court, relates to interim relief in a suit pending before the Sub-Judge Mirpur. Suit was filed by Haji Khalif and others, respondents herein, and they also prayed for interim relief which was granted. The appellants herein filed objections praying for vacation of the stay order issued earlier has the application was rejected. Appeal to the District Judge met the same fate. However, the High Court modified the stay order in light of the agreement reached between the learned counsel for the opposite parties. The order has now been challenged before us.
2. ' It is contended by the appellants that the concession by their learned counsel before the High Court not binding on them because a counsel appearing for a party cannot make a concession which damages the case of his client.
3. ' Adverting to the facts, the present suit has been filed to get rid of the effects of an ex pane decree obtained by the present appellants, Muhammad Afsar and others, on 17th of June, 1993. In that suit the only defendants were the Azad Government and the functionaries of the Settlement Department, and the present respondents, Haji Khalif and others were not arrayed as defendants.
4. In the suit it was averred by Muhammad Afsar and others that land under Survey No,187/1 (now number being 451/1) was in the ownership and possession of daintiffs but the location of the land under survey number had been shown at a dace different from where it was actually located in the previous "Aks Massavi". The suit was not contested and ex parte decree was granted to the effect that land measuring 1 Kanal, 3 Marlas under Survey No,187/1, (old) No,451/1(new) in Kakra, which is owned and possessed by the plaintiffs and pro forma-defendants, has been wrongly shown in ''Misl-e-Haqiat" 1991-1992 to be "Shamlat Deh" and also that the location of the suit land had also shown at a wrong place in the new "Aks Massavi" which shDuld have been in conformity with the "Aks Massavi" of 1986-1987 BK. The decree contained a direction to the Azad Government of the State of Jammu and Kashmir as well as the Settlement Organisation to correct the record in accordance with the findings mentioned above. Within a month of passing of the ex parte decree just mentioned, Haji Khalif and Abdul Rehman, respondents herein, filed a suit to challenge it. The suit was filed in a representative capacity after obtaining permission of the Court. It was inter alia averred in the plaint that the previous suit was ambiguous and the ex parte decree passed on it was being used for illegally taking possession of "Shamlat Deh" land under Survey Nos.448 and 449.
5. It was averred that the ex parte decree had been obtained to damage the interests of the village proprietary body.
6. The stay order issued at the instance of the plaintiffs, Haji Khalif etc., was that not correction or amendment may be made in the Revenue Record on the basis of ex parte decree passed on 17th of June, 1993. Interim relief granted by the trial Court was upheld by the first appellant Court.
7. However, the following modification was made by the High Court in light of the agreement reached between the learned counsel for the parties.
8. "In view of the agreed position between the parties the stay order issued by the learned Sub-Judge on 14-7-1993 for clarification sake shall now read that the petitioner-defendants and Revenue Authorities are directed to refrain from making any change in the Revenue Record in the existing position or entries relating to Survey Nos.449 and 448 on the basis of ex parte decree. They shall, however, be free in making correction in the Revenue Record only pertainings to Survey No,187/I
(old) 451/1 (new) without affecting these two Survey Nos.449 and 448. As the position stands clarified, the revision petition stands disposed of accordingly."
9. There has been a great deal of discussion during hearing of the appeal before us whether the learned counsel for the present appellants was within his rights to enter into the agreement with the learned counsel for the opposite party as is incorporated in the order reproduced above. It may be pointed out that the learned counsel for the appellants did not agree before the High Court that an unconditional stay order may be issued but only agreed that the stay order may be modified.
10. Therefore, the basic question which must be decided primarily is whether a stay order was justified or not.
11. Facts show that in the previous suit only the Government and the Settlement Organisation were impleaded as respondents. It follows that the ex parte decree only binds the Government as well as the Settlement Organisation and no one else. As already noted, it was averred in the new suit that the appellant herein under the garb of the decree, dated 17th of June, 1993, were trying to take illegal possession of "Shamlat Deh" land under Survey Nos.448 and 449. It is averred by them that ex parte decree had been obtained to damage the interests of the village proprietary body without impleading them as party. Keeping in view these averments and other material attached with the suit coupled with the facts that the village proprietary body was not party to the previous suit the trial Court and the first appellate Court reached the conclusion that the grounds essential for issuing a stay order were available in the present case. The facts do not show that the discretion has been exercised capriciously or arbitrarily so as to justify interference by this Court.
12. Keeping the foregoing conclusion in view, we are of the opinion that the question that learned counsel, who appeared in the High Court on behalf of the present appellants, did or did not make the concession detrimental to the interests of the appellants is not significant. If the appellants think that the interests have been damaged by this concession we have no hesitation in recalling the modification in shape of clarification as ordered by the High Court. It is, therefore, ordered that the stay order issued by the Trial Court which was upheld by the first appellate Court, shall continue to be operative.