1998CLC385 (PLP)

14. It was next contended, that even in reply to objection petition, the respondent has not admitted the possession of Yamin Khan over the suit house. It was argued, that a simple and short question was to be resolved by the executing Court, which was to the effect to see if objector is claiming possession of the house in good faith and with bona fide intention. Reference was made to Articles 117, 118 and 120 of ' Qanun‑e‑Shahadat' . The crux of the whole argument was that Mst. Naseem Akhtar has accepted that Yamin Khan is co‑owner in Shamilat, that he has got a house in village Khaloo, and that he has got the possession of a house, therefore, that house is not the one which is subject of execution petition.

15. Arguments were also advanced on the point that both the lower Courts have misread the evidence and have failed to determine the date from which the objector is in possession and also about the house. Learned counsel has relied on: (1) Mst. Maryam etc. v. Haji Ali and others (PLD 1985 Karachi 705). (2) Mst. Khurshid Begum etc. v. Ghulam Kubra etc. (1982 SCMR 90). (3) Fazal Elahi Siddiqui v. Pakistan through Secretary, Establishment Division etc. (PLD 1990 SC 692). (4) Lal Din and others v. Muhammad Ibrahim (1993 SCMR 710). (5) Abdul Qadir v. The Presiding Officer, Punjab Labour Court No.3, Lyallpur (PLD 1975 Lahore 44). (6) Shaukat Nawaz v. Mansab Dad (1988 SCMR 851). (7) Saheb Khan v. Muhammad Pannah (PLD 1994 SC 162). (8) Haji Abdul Jalil v. Anjuman Jamia Masjid Haquani (1996 MLD 818). (9) Shehzad Ahmed v. Muhammad Hayat (PLD 1983 Lahore 234). (10) Mst. Amina Begum v. Chairman, Karachi Development Authority and others (1993 CLC 1307). (11) Manzoor Mai v. Abdul Aziz (1992 CLC 235). 15‑A. After the arguments of the learned counsel for objector concluded, Muhammad Saleem Khan, attorney of the respondent, wanted to address the Court, to which objection was raised by the learned counsel for the objector on the ground that he has got no right of audience, however, thereafter, learned counsel candidly conceded to the right of attorney to explain his view point.

16. Muhammad Saleem Khan, in his short submissions, argued that Yamin Khan's house is situated at a distance of about 200 yards from the suit house, it has got its own boundaries, and it was submitted that Yamin Khan, has taken forcible possession of the suit house through Umar Hayat and notwithstanding the fact that he has been associating with case at the stage of original suit, and was well in the knowledge of the dispute between the parties retained the possession of the suit house under judgment‑debtor.

17. Replying to the question, as why Yamin Khan was not made party, if according to statement of Muhammad Saleem Khan, Yamin Khan was in possession of suit house, was that as on 28‑6‑1980, Umar Hayat took oath before the Court, that Yamin Khan was not having the possession of suit house, as such he was not necessary party to the suit. Secondly, because Yamin Khan has been associated with spot inspection when local commission went to the spot, not once, but twice, and it was Yamin Khan on whom instance, the suit house was measured, so much so, he has made statement to the local Commissioner in this respect, that suit house was inspected in his presence. Reference was made to the statement recorded by local Commissioner and is on this file.

18. It was contended by attorney of the respondent that he has purchased 3 Kanals, 7 Marlas of land through a Stamp paper from one Abdul Qadir, who is co‑owner in Khasra No.358, and is named in ' Fard Jamabandi' of the year 1987‑88 while, Yamin Khan the objector is not named as one of the co‑owners in the Khasra number, hence he cannot claim any proprietary right in respect of any land in Khasra number

358. Next, that Yamin Khan, though has appeared ac his own witness, could not produce a single document in support of his plea that, he is in possession of decreed house on his own account, no map/site plan, duly approved by local authorities, no electricity bill in his name, nor oral evidence as to construction has been brought on file. It was also argued that when in June, 1979 Civil Judge issued status quo order and the same was taken by bailiff of the Court to the spot it was Yamin Khan who put his signatures on the back of order in token of its acknowledgement on behalf of Umar Hayat.

19. Reference was made to report of local Commissioner, and submitted, that it is beyond comprehension that the Commissioner would have taken measurement of the house of Yamin Khan in his presence.

20. As it was also argued by learned counsel for objector that the boundaries of the house, given in amended plaint are different than the evidence as led by respondent. One Islam Khan, who appeared for objector, was termed to be untrue and unconcerned witness, as he is not local, and would not know the background of the case.

21. After hearing the sides, at sufficient length, there is no cavil to the proposition that Muhammad Saleem Khan (attorney of respondent) has purchased 3 Kanals, 7 Marlas of land from one Abdul Qadir and had constructed two houses thereon, later, one of the house was transferred in the name of respondent by Muhammad Saleem Khan in lieu of dower, that house, then became bone of contention between Mst. Naseem Akhtar respondent and Umar Hayat, brother of the respondent. Suit No.240/1 was filed on 17‑6‑1979 by Mst. Naseem Akhtar against Umar Hayat, on 5‑1‑1980 plaint was amended to implead one Mehr Jan Khan and Abdul Hayee as defendants, because per averment in the plaint, defendant Umar Hayat, after having taken the possession of the house of plaintiff‑respondent rented out the same to Mehr Jan Khan and then to Abdul Hayee.

22. Suit was decreed in favour of plaintiff, which was upheld up to High Court. The present petitioner has filed objection petition during, the execution proceeding and has based his claim by placing reliance on Order 21, Rule 99 of C.P.C. which is reproduced below. "Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than judgment‑debtor) claiming in good faith to be in possession of the property on his own account or an account of some person other than the judgment‑debtor, the Court shall make an order dismissing the application."

23. The arguments of the learned counsel for the objector, that Yamin Khan is in possession of different house than the one which was subject of litigation between Mst. Naseem Akhtar and Umar Hayat is not born out from the record The objector, in his objection petition has accepted the fact that he is in possession of 'disputed house'. He has admitted in his statement that, he has got only one house, in village Khaloo of which he could not give even the exact boundaries. Abdul Saleem witness on one hand claims to have been living in the said house for 1‑1/2 years but could not give the details of the accommodation.

24. The legal objection, that decree is executable between the parties to the original proceeding is not applicable in this case, because by taking shelter of Order 21, Rule 99, C.P.C., the burden will shift on the objector to prove that he is bona fide possessor of the property and that, was not possessing or having it through or under judgment‑debtor. Order 21, Rule 99, C.P.C., provides a protection to person in possession, not to be dispossessed in process of execution proceeding, provided he fulfils the requirement given therein. Therefore, to establish his such 'locus standi' burden is on him to prove, so to resist the execution of the decree upheld up to High Court.

25. It is on the record that, Umar Hayat took the possession of the disputed house in 1979 and Yamin Khan has accepted that Umar Hayat was in Karachi and he has been working as his ' Kardar'. During course of proceeding, oath was administered to Umar Hayat as to possession of none other than Umar Hayat in the suit house, which he took, if the oath was true and none was having the possession of the house in dispute under Umar Hayat, then why the decree passed by the trial Court, upheld up to High Court, is being resisted by Yamin Khan.

26. Yamin Khan, objector has remained associated with preparation of site plan of the disputed house when local Commissioner went to the spot, he has made a statement in that process, he lives in same village, and is closely related to the parties, he admits his knowledge, of litigation going on between Mst. Naseem Akhtar and Umar Hayat still he remained mum and quiet, until warrants of possession were issued by the executing Court. The conduct of a person, resisting execution of decree, in term of Order 21, Rule 99, read with section 47, C.P.C., is very relevant: A person who remained a quiet spectator, though closely related and being associated with the proceeding in the original suit cannot be benefited by his own conduct.

27. He does not exactly know the boundaries of his house, if, at all, thd house in his possession is not the suit property which is now subject of execution proceeding. Order 21, Rule 99, C.P.C. has laid much stress on 'good faith and bona fide' of the objector, all such ingredients and characteristics are totally lacking in favour of the objector. He has been making applications repeatedly to frustrate the relief granted to respondent by Trial Court and upheld up to High Court. His this conduct alone, coupled with evidence/material on record, disentitled him to protection of Order 21, Rule 99, C.P.C.

28. Learned counsel for the petitioner argued that evidence recorded between original parties cannot be taken as evidence to dislodge the defence of objector, has got no force. The executing Court, no doubt, under section 47, C.P.C. can determine certain question of facts arising out during execution proceeding, but law is well‑settled that, it cannot go beyond original judgment and decree. In this case, Yamin Khan, being a privy to entire proceeding in the original suit, cannot take any exception to the evidence or material brought on file. For the reason stated above, the revision is devoid of any force and the same is dismissed with costs. A.A./2237/P Revision dismissed,