P L D 1982 Lahore 368 (PLP)

Fazal‑i‑Hussain for Evacuee Trust Board. Date of hearing : 20th March, 1982. JUDGMENT' The petitioner was transferred a house on 10‑11‑1959 and, after payment of the transfer price, was issued P. T. D. on 31‑1‑1964, in which the property was described as No. SE‑38‑R/141‑A, alongwith open land measuring 176 sq. ft. the respondents Nos. 3 to 11 challenged the order by means of an appeal before the Additional Settlement Commissioner who remanded the case to the Deputy Settlement Commissioner. This is vide, order dated 14‑10‑1964. The latter referred the matter to the Chief Settlement Commissioner for determining the nature, of the property, who held that the property was evacuee trust property. This is vide order dated 19‑9‑1968. The petitioner challenged this order by means of an appeal in the High Court which was dismissed by a learned Division Bench on 18‑10‑1968.

2. On the basis of P. T. D., the petitioner filed an ejectment application against the respondents Nos. 3 to 11 who were in possession. The latter objected to the right of the petitioner to file an ejectment application on the ground that the property had been declared as evacuee trust property and that the land underneath was of the Provincial Government. However, in view of section 10(2) of Act XIII of 1975 which provided that where P. 'f. D. had been issued prior to June, 1968, the property shall be deemed to have been validly transferred, the petitioner's application for ejectment of the respondents was accepted and the learned Rent Controller directed their ejectment vide order dated 17‑3‑1975. The respondents challenged the order in appeal and their plea was accepted and appeal allowed by a learned Additional District Judge on 24‑1‑1976. The petitioner filed a S. A. O. No. 89 of 1976, which was accepted on the finding that the P. T. D. in favour of the petitioner was validated by section 10(b) of Act XIII of 1975. This is vide order dated 11‑3‑1977 and reported as P L D 1977 Lab. 1110. The respondents challenged the order by means of C. P. S. L. A. No. 82‑R of 1977 in which after noting all the facts the learned Judges of Supreme Court of Pakistan held that the High Court was right in restoring the order of the learned Rent Controller directing the ejectment of the respondents. This is vide order dated 3‑5‑1977. The respondents were not deterred and filed an application before the Chairman, Evacuee Trust Property Board who observed that "the P. T. D. has ‑been held by the High Court to stand and to be valid. The petitioners (present respondents) have not been able to prove any mala fide in the process that resulted in issuing of the P. T. D. I, therefore, validate the P. T. D. under section 10 of Act X111 of 1975".

3. The petitioner filed an application for execution of the order of eject ment earlier passed by the learned Rent Controller on 17‑3‑1975 which had been upheld all through. The respondents filed an objection petition in the form of application under section 151, C. P. C. saying that the petitioners were only entitled to get the order of ejectment executed regarding superstruc ture and not the land which vested in Provincial Government. The applica tion was dismissed on 18‑12‑1977. The learned executing Court issued "warrants for possession in regard to the property as described in, the decree and according to the map where the property is shown as red in regard to open land of 176 sq. ft. alongwith Khasra Nos. 854, 855, 857 and 858". This is vide order dated 18‑12‑1977. The respondents filed an appeal and the learned Additional District Judge accepted the same and directed the executing .Court "for delivery of possession of the superstructure of the house and the land underneath it without any reference to the open land measuring 176 sq. ft. referred to in the P. T. D. or any other land in the said numbers", This is vide order dated 27‑3‑1978.

4. It is stated by the learned counsel for the respondents that they challenged the last mentioned order by way of a revision petition in the High Court but the same was dismissed in limine.

5. The petitioner filed another application for execution praying for dispossession of the respondents from the land. This was dismissed by the learned executing Court on the ground that he was bound by the order of the learned Additional District Judge dated 27‑3‑1978 and he cannot go behind it. This is vide order dated 23‑6‑1980. The petitioner has filed this Consti tutional petition praying that the order of the learned Additional District Judge dated 27‑3‑1978 be declared to be without lawful authority and a direction issued to the executing Court to give effect to its earlier order of ejectment dated 18‑12‑1977.

6. Shorn of unnecessary controversy, the naked truth is that the peti tioner was issued P. T. D. which has been held to be valid and he is entitled to eject the respondents from the property permanently transferred to him. The order of the highest Court in the land is dated 3‑5‑1977. In execution proceedings, the learned Rent Controller lastly passed an order on 18‑12‑1977 directing issuance of "warrants for possession in regard to the property as described in the decree and according to the map where the property is shown as red in regard to the open land measuring 176 sq. ft. along with Khasras Nos. 854, 855, 857 and 858". The impression given in that the res pondents are to be ejected from the property and the open land of 176 sq. ft. alongwith Khasra Nos. 854, 855, 857 and 858: What the learned executing Court really meant was that the respondents shall be ejected from the pro perty along with the open land measuring 176 sq. ft. which had been transfer red to him under the P. T. D. When the respondents took the appeal before the learned Additional District Judge, the latter directed that "the learned execut ing Court shall issue warrants for delivery of possession of the superstructure of the house and the land underneath it without any reference to the open land measuring 176 sq. ft. referred to in the P. T. D. or any other land in the said field numbers". This order was obviously wrong and without lawful authority in so far as that it excluded the open land measuring 176 sq. ft. from the execution of the ejectment order. From the statement of facts made above, it is quite clear that the petitioner was allowed to eject the respondents on the basis of the P. T. D. and that had transferred to him the house along with open land measuring 176 sq. ft. The orders in his favour have been upheld by the highest Court in the land. Therefore, the petitioner was entitled to dispossess the respondents from the house along with the open land measuring 1.76 sq. ft. After protracted and prolonged litigation spread over nearly twenty years, the learned executing Court must now eject the respondents from the house alongwith open land measuring 176 sq. ft. permanently transferred to the petitioner nearly quarter of a century ago, within the next one month. This petition is thus accepted with costs to be borne by the contesting respondents Nos. 3 to 11. s. A, Et. Appeal accepted.