P L D 1987 Peshawar 28 (PLP)

Ejaz Muhammad Khan and Khuda Bakhsh Khan for Respondents. Date of hearing 10th March, 1986. This Regular First Appeal (revision) by Muhammad Amir landlord of the property in dispute is directed against the judgment and order of District Judge, D. I. Khan dated 17‑10‑1985 whereby he set aside the order of dismissal of objection petition of respondents 1 to 3 by order dated 8‑5‑1985 of the executing Court to the execution of the decree for possession and remanded the case to the Court to decide it in the light of the evidence to be produced by the parties.

2. Facts of the case briefly stated are that the house in dispute originally was an evacuee property which was purchased by Abdul Hamid in open auction. On the basis of an agreement of sale Muhammad Amir petitioner herein instituted a suit for possession by specific performance against Abdul Hamid in the Court of Civil Judge on 21‑1‑1965. Ultimately that suit was decreed in favour of the plaintiff on 2'‑11‑1966. In appeal the decree was set aside but it was restored by the High Court in second appeal vide order dated 18‑11‑1974.

3. Muhammad Amir the decree‑holder then applied for the delivery of possession through execution of the decree of the suit shop. In the execution proceeding Juma Khan the predecessor‑in‑interest of respondents 1 to 5 herein raised an objection. to the effect that he was not liable to ejectment from the suit shop in the execution pf the decree for specific performance on several pleas raised therein. His objection petition was rejected and the order was upheld in revision by the High Court vide the order dated 22‑2‑1984. Even this time Juma Khan did not take rest and started a second round of litigation by filing a declaratory suit challenging the aforementioned orders. The learned Civil Judge rejected his suit under Order VII, rule 11, C. P. C. His appeal against the rejection of his plain was also dismissed on 8‑7‑1984.

4. Juma Khan having failed to get favorable order in his favour from all quarters brought into picture his sons respondents 1 to 3 herein who filed the objection petition under section 47 read with Order XXI, rule 58 and rule 100 of the C. P. C. and section 151, C. P. C. resisting the execution proceeding. It was claimed in the objection petition that they were in actual possession of the suit shop with which their father had nothing to do and the orders passed against‑him were not binding on them a114ed to have occupied the same some 16 years back.

5. The decree‑holder resisted the objection petition mainly on the ground that Juma Khan father of the objectors having failed in all quarters have maliciously brought his sons in picture with an efforts to illegally retain the property and to obstructs execution of the decree and to frustrate the administration of justice. The learned Senior Civil Judge. in his well reasoned judgment giving full background of the case vide his order dated 8‑5‑1985, rejected the objection petition.

6. Aggrieved by the judgment and‑order the objectors filed an appeal in the Court of District Judge, D. I. Khan who vide impugned order set aside the same and remanded the case to the learned Senior Civil Judge with the direction referred to above.

7. It was contended by the learned counsel for the appellant that the order of the learned District Judge is unsustainable as the learned District Judge failed to consider that Juma Khan father of the objectors was unsuccessful in the earlier two rounds of litigation and that his sons allegedly obtained possession of the shop from their father. They never stepped in the litigation for years‑which was going on between their father and Abdul Hamid the predecessor‑in‑interest of the decree‑holder. His further grievance is that he has cited law before the learned Sessions Judge in support of the order of the executing Court but the same has not been considered at all. It was lastly contended that the objection petition was rightly rejected in terms of the provision of section 47 read with Order XXI, rule 58, C. P. C. '

8. On the other hand the learned counsel for the respondents argued that the order of remand passed by the learned District Judge in which direction is given to expedite the matter is unexceptional as by it the objector have been provided with an opportunity to lead their evidence in support of their case set up in the objection petition.

9. After hearing learned counsel for the parties and perusal of the record I have come to the conclusion that the order of the learned District Judge cannot be maintained. Admittedly the objectors are the sons of Juma Khan who were then the tenants in the suit property. That Abdul Hamid purchased the suit property through an open auction where after he entered into an agreement of sale in favour of his brother Muhammad Amir appellant herein on 23‑8‑1962. However, before the sale could be completed, Abdul Hamid sold his house to Juma Khan the tenant vide the sale‑deed dated 23‑12‑

165. In the meantime, Muhammad Amir instituted suit for possession by specific performance on the basis of the agreement of sale against Abdul Hamid and the subsequent transfer Juma Khan. This suit ultimately was decreed in his favour per judgment of the High Court dated 18‑11‑1974. In pursuance of the decree, the Clerk of Court acting on behalf of the Senior Civil Judge, D. I. Khan executed a registered sale‑deed under the provision of Order XXXI, rule 4, C. P. C. in favour of the appellant on 19‑9‑1976. Thereafter, he resorted to execution of the decree for taking possession of the suit house. Juma Khan on his failure in those proceedings stated a fresh round of litigation made an objection petition resisting the execution proceedings. However, his objection petition was dismissed on 23‑7‑1981. The order of dismissal of his objection petition was challenged in appeal before the District Judge which met the same fate. His revision petition filed in this Court was also rejected on 22‑1‑1984. In this background of the dispute, the execution proceedings remained in abeyance. lama Khan after his failure in all forums in order to frustrate the decree and to remain in illegal possession of the suit shop collusively manage to file an objection petition through respondents Nos. 1 to 5, his sons, on the grounds referred in the earlier part of his judgment.

10. Learned counsel for the respondents, however, basing reliance on a judgment reported in Mst. Sardar Begum and another v. Safri (PLD 1981AzadJ &K‑11) argued that in the absence of any evidence on the record and in the absence of any positive proof, knowledge of the son cannot be presumed knowledge of lather and vice visa and the learned executing Court was wrong in rejecting their objection petition on those premises. However, the facts of the reported case are quite distinguishable from the facts of the present case. That was .a case pertaining to abatement of the suit in which the knowledge of death of the defendant was a question for determination by the 'Court, it was in that context that their Lordships made the aforementioned observation. In the instant case, the facts are quite different. The property in dispute was undoubtedly in possession of Juma Khan as tenant and it was he who handed over its possession to his sons. They, therefore, have no independent right of their own in resisting the execution of the decree passed against their father, after the objection petition of their e father was rejected on merits upto the High Court. The case in hand is covered by a judgment Mst. Khurshid Begum v. Mst. Ghulum Kubra etc., (1982SCMR9) The learned executing Court after appreciating the facts of the case held that: - "There is no proof that the applicants are in possession of the property on their own account or on account of some person other than the judgment‑debtor. So provision of rule 101 cannot be invoked. In shot the present petition looks to me as an attempt to delay the execution proceedings which is pending since long and, therefore, finding no bona fide merits in the same, I have no option but to reject the same."

11. No exception could be taken to the conclusion arrived at by the learned executing Court. The learned District Judge was, therefore, not justified in setting aside those findings and remanding the case to theta executing Court. Consequently this appeal (revision) is accepted, .the judgment and order of the learned District Judge is set aside and that of the learned executing Court restored with no orders as to costs. A. A. /495/P Appeal accepted.