1976 PLP 519 (SCMR)

WAHEEDUDDIN AHMED, J.--The dispute between the parties is in respect of shop No. 157, Block No. 10, Rail Bazar, Jhang. Deceased Ahmad Din filed a suit for the recovery of Rs. 324 on account of rent of the above shop. He alleged that he was the owner of 1/4th share in the said shop. The petitioner denied this allegation. Several issues were framed. The dispute between the patties went up to the High Court in Revision. The High Court framed a new issue which is as under :‑-- "Whether the shop in dispute is evacuee, if so, what right or interest the evacuee possesses in it." The matter was referred to the Deputy Custodian who held that the respon dent was owner of 14/64 share in the shop in dispute and to that extent it was non‑evacuee property. This order was confirmed by the Custodian of Evacuee Property on the 12th May 1962. The matter then came up before the learned Civil Judge. The petitioner made a statement before him that he has no objection to the passing of a decree for a sum of Rs. 324 but he did not admit the respondent's owner ship of the property or other relationship of landlord and tenant between the parties. On this statement, the learned Civil Judge passed a decree for Rs. 324 against the petitioner. The respondent challenged the order of Civil Judge so far as be did not make any observation with regard to the relationship of landlord and tenant between the parties and the owner ship of 'the respondent. The learned Additional District Judge, Jhang, by order dated the 10th September 1965, accepted the appeal. He held that Ahmad Din deceased was owner of 14/64 share in the shop in dispute. Thereafter, the heirs of Ahmad Din respondent filed execution application on the 5th April 1968, which was dismissed in default. Another application was filed on the 23rd June 1970. The petitioner objected to the execution application on the ground that after the modification of the decree by the learned Additional District Judge, the decree passed by him was declaratory and the decree for recovery of money should be deemed to have been reversed. This objection was dismissed on the 2nd November 1971. Later on, the petitioner filed further objection which was dismissed on the 8th June 1972. Appeal against this order was also dismissed on the 12th June 1973. The petitioner challenged this order in Civil Revision No. 444 of 1973. A learned Single Judge of the Lahore High Court by order dated the 6th November 1973, has dismissed the revision petition and has upheld the order of the Courts below. Ch. Atta Ullah, learned counsel for the petitioner, has contended that there being a consent decree no appeal could be filed under section 96(3) of the Civil Procedure Code. The contention of the learned counsel has' no force. The learned Civil Judge passed the decree for Rs. 324 against the petitioner's admission. It was not a consent decree. The respondent therefore, was entitled to file an appeal and the learned District Judge was perfectly justified to incidentally decide the question, who was the owner of the property in dispute after the‑ matter has been inquired into by the' Custodian authorities under the administration of evacuee law. It was further contended by the learned counsel for the petitioner that the amount involved is only Re. 324 and the learned Civil Judge has no jurisdiction to pass the decree for that amount as the dispute fell within the pecuniary jurisdiction of the Conciliation Court. In our opinion, the High Court was right in observing that this objection is not open to the petition in revision as the decree was passed on his admission. There is no force in the petition. The petition is dismissed. Petition dismissed,