1997 PLP 1528 (CLC)

This Constitutional petition is filed by the petitioner against the respondents to challenge the order dated 24‑2‑1994 passed by the learned Civil Judge, Attock and the order dated 3‑3‑1997 passed by the learned Additional District Judge, Attock on the ground that those were based on misreading of evidence and substantially against law.

2. The brief facts leading to this writ petition are that a suit for possession was filed by Fateh Muhammad i.e., respondent No.l against Muhammad Siddique i.e., respondent No.2 regarding the disputed 'Haveli' measuring 10 Marlas on the ground that he had purchased the same through a registered sale deed dated 15‑10‑1986 from Ghulam Haider for a consideration of Rs.10,

000. The suit was resisted on various grounds by the aforesaid Muhammad Siddiqui but it was decreed in favour of Fateh Muhammad i.e., respondent No.l vide judgment and decree dated 21‑3‑1992 passed by the learned Civil Judge, Attock. That decree and judgment were challenged in appeal which was also dismissed by the learned appellate Court vide its order dated 23‑4‑1992. The respondent Muhammad Siddique thereupon filed a revision in the High Court but the same was dismissed on 13‑7‑1992.

3. An execution petition was filed by Fateh Muhammad respondent/decree‑holder against the judgment‑debtor Muhammad Siddique during which an application under section 12(2) of C.P.C. was filed by the present petitioner namely Muhammad Rafique, a brother of Muhammad Siddique, judgment‑debtor. Since the initial decree passed by the Civil Judge was not challenged on the ground of being tainted with fraud, misrepresentation or suffered from want of jurisdiction, therefore, its maintainability was questioned and the same was converted as an objection petition under Order 21, Rule 99 of C.P.C. The objection petition was accordingly tried and dismissed on 24‑2‑1994 by learned Civil Judge find Class, Attock. The unsuccessful objector Muhammad Rafique filed an appeal which too was dismissed on 3‑3‑1997 by Sakhi Muhammad Kahut, learned Additional District Judge, Attock. Against the aforesaid orders, the present writ petition is filed. 4. 1 have heard the learned counsel for the petitioner who has contended that the petitioner was a bona fide owner of the 'Haveli' in question as it formed part of Khasra No.424. Hence It was alleged that this aspect was not adverted to by the Courts below white deciding the objection petition. Secondly, it was contended that an application was filed by the petitioner in the Court of Assistant Collector 1st Class, Patch Jang for the partition of Khasra No.424 and on account of decision given by him qua the subject‑matter, the petitioner was found to be owner in possession of the disputed 'Haveli'. In this respect, a reference was made to the Registrar Haqdaran for the year 1990‑91 to which the petitioner Muhammad Rafique was shown to be in possession of 5 Marlas in Khasra No.424. Reliance was also placed on Khasra dirdawari from 8‑10‑1992 to 5‑4‑1993 to show that the petitioner was one of the owners in possession in the aforesaid Khasra. 5. 1 have considered the above submissions and find that the ownership about the 'Haveli' in question was tried in a suit for possession between Fateh Muhammad and Muhammad Siddique by a Court of cornptent jurisdiction and it was held on the basis of fuilfledged trial that Fateh Muhammad was the owner of the 'Navell' in question on account of the registered sale‑deed in his favour. The finding of the trial Court was upheld by the appellate Court and also by the High Court as revisional Court. During the execution petition, the present petitioner who Is brother of Muhammad Siddique, judgment debtor filed an abjection petition under section 12(2), C.P.C, but did not say a word that the impugned decree was tainted with fraud, misrepresentation or suffered from the want of jurisdiction. Even then, the petition was converted Into an objection petition under Order 21, Rule 99, C.P.C. And was accordingly tried and disposed of do merit . It was held by the Courts below that the objection petition was meritless and Patch Muhammad wad the owner of the property in question, whereas, the petitioner Le,, the objector Muhammad Rafique was unable to prove that he was a bona fide owner with possession of the property in question. The partition proceedings before the Revenue Court were disbelieved on the ground that those were Subsequent td the findings of the Civil Court regarding the title of fateh Muhammad respondent. Even otherwise, the perusal of record clearly shows that the property purchased by Patch Muhammad vide registered sale‑deed has no bearing with Khaera No.424 which is claimed to be in possession of the petitioner/objector to the extent of 5 Marlas. It is strange that a protracted litigation continued between his brother Muhammad Siddique and Fateh Muhammad over the property in question but he remained silent till a decree was passed against his brother and the latter was to be dispossessed under the execution of that decree. The petitioner has not explained as to why he did not join those proceedings except that he alleged that he did not know about such proceedings. Anyhow, this plea cannot be accepted because he is the real brother of Muhammad Siddique and If he was actually a co‑sharer with A possession in the disputed 'Haveli' with his brother Muhammad Siddlque, then he should have been the first person to know about the aforesaid litigation. Hence the impression cannot be avoided that the present objection petition being ill‑aimed, was instituted with the object of frustrating the execution petition filed aglanst the brother of the petitioner namely Muhammad Siddique I.e., the judgment‑debtor.

6. In view of my above discussion, I do not find any material irregularity in the findings of the Courts below so as to warrant the interference in the extraordinary Constitutional jurisdiction of this Court. The writ petition i accordingly dismissed in limine. A.A./M‑325/L Petition dismissed.