2007 PLP 542 (CLC)

TALAAT QAYYUM QURESHI, J.

This revision petition is directed against the judgment/order, dated 5-1-2004, passed in Appeal No.24/13 by the learned Additional District Judge-III, Charsadda.

2. Mr. Gul Sadbar Khan, Advocate, learned counsel representing the petitioner argued that the petitioner had filed eviction petition under Urban Rent Restriction Ordinance, 1959 against respondent No.1. Eviction order was passed on 10-4-2000, which was upheld by the august Supreme Court of Pakistan.

3. It was also argued that respondent No.2 on 22-3-2001 filed objection petition claiming therein that he had purchased land measuring 4 Kanals, 6 Marlas from respondents Nos.3 and 4 but the possession of the suit-land had been handed over by respondent No.1 to him (respondent No.2).

4. It was also argued that having undertaken to hand over the possession to the petitioner before august Supreme Court of Pakistan, respondent No.1 could not hand over the possession to respondent No.2. The act of respondent No.1 was illegal.

5. It was also argued that the property in dispute was owned by the petitioner and not by respondents Nos.3 and

4. The sale in favour of respondent No.2 was collusive and fraudulent. The learned executing Court had appreciated the said position property but the learned Appellate Court failed to appreciate the same.

6. It was also argued that the possession of the disputed property was to be handed over to the petitioner but the same was not done and in order to avoid handing over the possession, respondent No.2 collusively filed the objection petition. He placed reliance on 1995 SCMR 726; 2003 SCMR 1416 and 1986 SCMR 1638.

7. On the other hand Mr. M. Ijaz Khan, Advocate, learned counsel representing respondent No.1 argued that respondent No.1 has handed over the possession of the suit property to respondent No.2, therefore, he was not left with any interest in the suit properly.

8. Mr. Zia-ur-Rehman, Advocate, learned counsel representing respondent No.2 argued that he purchased land measuring 4 Kanals, 6 Marlas comprising Khasra No.1805/310/1 from Mian Mansoor Shah and Mian Muhammad Shah, respondents Nos.3 and 4 vide registered sale-deed dated 17-10-2000. The possession of the suit property was handed over to him by respondent No.1.

9. That having gained the knowledge of the sale of the property through registered sale-deed dated 17-10-2000, the petitioner had filed a declaratory Suit No.165/1 on 27-11-2000 in the Court of learned Civil Judge, Charsadda, challenging the validity and legality of the said sale-deed. In the said suit the evidence of the parties has been recorded and the ease has now been posted for 16-12-2006 for arguments/orders.

10. It was also argued that the learned executing Court while deciding the objection petition had drawn inferences from its own. It was held that respondent No.2 was close relative of respondent No.1, though there was nothing available on record to prove this fact.

11. It was also argued that the factual controversy was involved and the same could only be resolved by recording evidence of the parties. Reliance in this was placed on 1986 MLD 2997, 1999 CLC 374, 1991 MLD 1216, 2001 MLD 1621, 2003 CLC 10, 1990 MLD 2217 and 2003 SCMR 181.

12. I have heard the learned counsel for the parties and perused the available record.

13. It is admitted position that the petitioner filed eviction petition under section 13 of the Rent Restriction Ordinance, 1959 against respondent No.1 in the Court of Rent Controller, Charsadda on 10-4-1999. The said petition after due contest was accepted vide order, dated 10-4-2000.

14. Feeling aggrieved with the said judgment/order, respondent No.1 filed appeal in the Court of learned Additional District Judge-II, Charsadda, which was dismissed vide judgment/order, dated 31-5-2000 whereafter respondent No.1 filed Writ Petition No.73 of 2000 before this Court which too was dismissed vide judgment/order, dated 25-7-2000. He then approached the august Supreme Court of Pakistan by filing C.P. No.343 of 2000. The said C.P. was disposed of vide order, dated 8-8-2000 on the undertaking given by respondent No.1 that he should be given a reasonable time to vacate the premises on which the learned apex Court granted six months time with effect from 8-8-2000.

15. In order to reap the fruits of the decree, the petitioner filed execution petition in the executing Court. It was during the pendency of the execution proceedings that respondent No.2, namely, Tilla Muhammad filed objection petition on 22-3-2001. The learned executing Court after hearing the learned counsel for the parties dismissed the objection petition vide order, dated 7-3-2003. Respondent No.2 filed appeal in the Court of learned Additional District Judge-III, Charsadda, which was accepted vide order, dated 5-1-2004. Being not satisfied with the said judgment/order, the petitioner has filed revision petition in hand.

16. The question that needs consideration in this case is as to whether respondent No.1 was liable to hand over the possession of the suit property to the petitioner. Answer to this question is in affirmative. As mentioned above the eviction order had been passed against him on 10-4-2000 which had been maintained up to august Supreme Court of Pakistan. Before the learned apex Court, respondent No.1 stated that he should be given some time for rehabilitation upon which the august Court granted him six months time from 8-8-2000 and he was directed to hand over the vacant possession to the petitioner (who was respondent before Supreme Court) subject to payment of monthly rent regularly. It was also ordered that after the expiry of the said period, he would be ejected by force without prior notice. The said order was passed on 8-8-2000.

17. Respondent No.2 claims to have purchased land measuring 4 Kanals, 6 Marlas comprising Khasra No.1805/310/1 vide registered sale-deed dated 17-10-2000. The possession of the suit property was with respondent No.1. He was liable to hand over the vacant possession to the petitioner as per his statement given before august Supreme Court of Pakistan but instead of doing the needful, he preferred to hand over the possession of the suit premises to respondent No.2 which act of respondent No.1 was not only illegal but was also contemptuous as it was against the statement given by him before learned apex Court. The objection petition filed by respondent No.2 on the face of it is based on mala fide and is collusive, hence the same was rightly dismissed by the learned executing Court. The appellate Court failed to appreciate the said position. I, therefore, allow the revision petition, set aside the impugned judgment/order, dated 5-1-2004 passed by the learned Additional District Judge-III, Charsadda and restore the judgment/order, dated 7-3-2003 passed by the learned executing Court on payment of cost of Rs.2,

000. H.B.T./4/P Revision allowed.