' CH. MUHAMMAD ARIF, J.---In this petition under Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973 leave to appeal is claimed against judgment dated 10-11-1998 passed by Sindh High Court Bench at Sukkur whereby petitioners Constitution Petition No,D-1035 of 1995 was dismissed.
2. The relevant facts are that the petitioners' predecessor-in-interest namely Haji Gaman and the predecessor of the respondents namely Piaro were real brothers. Deceased Piaro was granted agricultural land out of U.A. No,56 bearing Blocks Nos.379, 380, 387 and 388 admeasurihg a total of 16 acres in Deh Jaro Pitafi, Taluka Mirpur Mathelo, District Ghotki (originally Sukkur) on Harab conditions from Khareef 1964-65 by respondent-Colonization Officer. Deceased Haji Gaman continued to be in possession of the abovesaid land. With a view to safeguarding the interest of deceased Haji Gaman, deceased Piaro executed an agreement to sell in his favour on 12-5-1969 and in yet another agreement on 22-7-1971. On the demise of Piaro in the year 1973, Haji Gaman moved respondent Colonization Officer for transfer of the disputed land in his favour but the said request was declined on 2-11-1976. Even the grant in favour of late Piaro was cancelled by the said respondent vide the above orders. The successors of deceased Piaro and Haji Gaman challenged the above orders of Colonization Officer through separate appeals respectively before Additional Commissioner, Sukkur and the Member, Board of Revenue, Karachi, hereinafter referred to as M13R.
The appeal of Haji Gaman was dismissed in default on 29-3-1977. Haji Gaman filed a review petition before MBR and the appeal of successors of Piaro deceased pending before Additional Commissioner, Sukkur was also called for and heard together by MBR. Both these causes were disposed of on 29-3-1978 rejecting revision petition of Haji Gaman but restoring the land in dispute in favour of deceased Piaro. A review petition brought by Haji Gaman before the Member, Board of Revenue was also dismissed on 25-5-1978.
3. Haji Gaman filed Suits Nos.192 and 264 of 1978 before the learned Senior Civil Judge, Sukkur for declaration that above orders of MBA were illegal, void etc. As also for consequential injunction. The suit was partially decreed as the said orders of MBR were declared as without lawful authority restoring the order of respondent Colonization Officer but the learned Senior Civil Judge also directed that the disputed land be brought in the schedule and be disposed of as a fresh grant.
The respondents remained unsuccessful in their appeal before the learned IVth Additional District Judge, Sukkur vide letter's order dated 8-11-1989. However, their Civil Revision No,129 of 1989 against the order dated 8-11-1979 was allowed by the High Court with the result that the suit of Haji Gaman stood dismissed and the order passed by MBR revived. This happened on 23-9-1992. High Court's order was challenged before this Court but leave was refused on 28-11-1992, in Civil Petition No,374 of 1992.
4. During the interregnum, the matter in relation to making the payment of instalments for finalizing the grant of proprietary rights to late Piaro his successors (respondents herein) proved to be the cause for the petitioners to file F.C. Suit No,27 of 1993 for specific performance of contract/s, on 13- 2-1993. On 26-1-1995, the private respondents/defendants sought rejection of the plaint under Order VII, rule 11, C.P.C. On the ground that the same was barred under section 11 and Order II, rule 2, C.P.C. The learned Senior Civil Judge rejected the application of the respondents/defendants on 20-4-1995 and also granted the stay order as prayed by the petitioners/plaintiffs. Order dated 20- 4-1995 was successfully challenged by the respondents before the learned District Judge, Ghotki who further allowed the prayer of the respondents to reject the plaint in Suit No,27 of 1993 vide order dated 31-8-1995. The present petitioners remaining unsuccessful in their challenge to order dated 31-8-1995 before the High Court in their Constitution Petition No,D-1035 of 1995, have now made the instant petition.
5. Mr. Abdul Rahim Kazi, learned Advocate Supreme Court appearing on behalf of the petitioners, has referred to Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others (1992 SCM R 1510) and Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others (1980 SCM R 314) to contend that the learned Members of the Division Bench of the High Court are in error in not following the law declared in, among others, the above mentioned precedents to the effect that the suit of the petitioners for specific performance of agreements dated 12-5-1969 and 22-7-1971 was maintainable in that the bar under section 19 of the Colonization of Government Lands (Punjab) Act (No,V of) 1912 could not stand in their way in asking for a decree of specific performance, after the grant of proprietary rights to deceased Piaro and/or his successors i,e,, private respondents No,4, 5, 5A to 5-I and 6 to 8. The precise plea was that at the time of the agreement/s proprietary rights had not been granted to deceased-Piaro /respondents /defendants and that the subsequent grant of proprietary rights would, in law, furnish a cause of action in favour of his clients to file the instant suit without any let or hindrance.
6. Leave is granted to consider the above questions.
7. Interim order dated 16-12-1998 shall continue in operation, during the pendency of the appeal.