Gul Khaydin Vs Gulam Bilal

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT PESHAWAR

JUDICIAL DEPARTMENT

CR No.896-P/2023 with CM Nos.|604-P/2023 142 6-P/2024

JUDGMENT

Date of hearing 04.11.2024.

P oner (Gul Khcydin) By Mr. Muhammad Mujeeb, Advocate.

Resnon dent(s) (Ghulam Bilal end others) By IWS Zahid Jadoon and Faisal Khan, Advocates.

S. M. ATTIOUE SHNI . J.- By way of this single judgment, this court intends to dispose of instant revision petition as well as connected Civil Revision No,87LP2023, as not only the parties but the subject matter is also one and the same therein.

2 Since the parties have been litigating against each other before different forums in respect of the suit house and both the learned Courts below in their impugned findings have already given reference thereof, therefore, there is no need to reiterate the same here.

3 I have heard learned counsel for the parties at a considerable length and; have gone through the entire record with their valuable assistance.

4 As the record unfolds, it was Gul Kheydin (petitioner), who filed an eviction petition against Mst. Malka

Begum widow of Nizam-ud-Din and; her sons Sabir Hussain, Amjad Hussain, Arshad Hussain, Ejaz Hussain, Imran Hussain, Akhtar Hussain and; daughters Mst. Shaheen Kosar and Mst.

Hasina Kosar (respondents No.6 to 14) for their eviction from House No.1594, situated at Kochi Bazar, Mohallah Sheikh Baha-ud-Din Doma Galli, Peshawar City (disputed house), which was decided in his favour by the leamed Rent Controller, Peshawar vide judgment and decree dated 07.06.2016 and the said decree was maintained upto the august Apex Court and thereafter, the execution proceedings were set in motion.

During the execution proceedings, respondents No.l to 4 moved an objection petition before the learned Executing Court, alleging therein, to be the joint owners in the disputed house along with respondents No.6 to 14 on the basis of a registered deed dated 12.10.1926 followed by registered redemption deed dated 17.02.1971. The leamed Executing Court / Rent Controller-I, Peshawar, after receiving the reply and hearing the learned counsel for the parties, dismissed the said objection petition vide order dated 19.11.2018 against which their appeal was also dismissed by the leamed Appeal Court with certain observations vide judgment and order dated 14.02.2019. At this stage, it is more apt to reproduce the said observation for convenience, which read as follows: - "With these observation, while restraining to interfere in the impugned order, this appeal is though dismissed, leaving the learned Executing Court to proceed with the execution of the decree in question but with directiotts to Jtfli@ Svlmqt W,

appoint o local commissioner in order to first determine the limits / boundaries of the suit house, and then to execute the Rent Decree in question in the light of the report of the commission according to la,v.

5 Such findings were assailed by the petitioner before this court through CR No.29l-P/2019, which was dismissed vide judgment and decree dated 21.09.2020. The relevant portion of the ibid judgment is reproduced below for ready reference: -

"V[henever a person is bonaJide cloimant and is aggrieved ofthe execution ofthe decree, he can submit the objection petition to the execution court, which if found correct, the execution petition to the ertefi of his interest shall be dismissed. In the instant matter too, respondents No.l to 4 (objectors) were claiming their interest in the house in question on the strength of registered deed, thus, they have rightly approached to the executing court by submitting the objection petition. The learned appellate court while considering contentions of respondents No.l to 4 has rightly ordered for determination of the boundaries / limits of the decreed house through appointment of a local commission in order to ascertain as to whether the respondents are in possession of the decreed house or not. The fate of commission's report shall be determined, definitely within the parameters as provided in section 75 r/w Order WTI Rule 9 CPC, as such, no illegality

has been committed by the learned appellate court.

For the reasons discussed above, the instant petition being berefi of ment is hereby dismissed."

6 Pursuant to such findings, learned executing court appointed a local commission with the direction to visit the spot and determine the limits and boundaries of the disputed house, who accordingly, after visiting the spot on 19.12.2021, submitted his report (Ex.CW-l/l). Perusal of the commission report reflects that the local commissioner conducted the entire commission proceedings in the presence of the parties and according to the report, the front portion ofthe disputed house, consisting of a single story house, measuring 312 sq. ft. was in occupation of Hameedullah while its rear portion being a vacant plot, per available record, is in possession of one Abdul Khaliq, both allegedly purchased the same from Ghulam Bilal, etc.

(objectors) vide sale deeds dated 18.02.2020 and 12.03.2021, respectively, while he could not measure the exact size of the vacant plot, as both the alleged vendees, have not provided him access to do so, albeit; per his estimate, it was approximately 3 marla plot. Said report of local commissioner was objected to by all the parties and; the leamed executing court, after recording the statement of local commissioner as CW-l and affording opportunity of cross examination to the parties, confirmed the report of local commission and given the symbolic possession of vacant plot bearing No.1594, to petitioner-decree holder vide impugrred order dated

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8.3.2021. The operative part of the said order is reproduced below for ready reference: -

"Thus, in such a situation though there is lefi no house but the vacant land of the house is available for Decree Holder. Despile of this fact, Decree Holder is entitledfor possession in process of execution being landlord of the portion of same piece of land as he after litigation of decades he can't be denied offruit of eviction order in his favour on making the structural changes by the judgment debtors and objectors.

The actual possession could not be delivered as no access / passage is available to plot, as the possession of Hameed Ullah who allegedly purchased 312 Square Feetfrom Ghulam Bilal is to be disturbed for which this court being executing court lacks jurisdiction mainlyfor the recsons that the title of Ghulam Bilal is disputed by decree holder in petition u/s 12 (2) CPC, 1908 and if that stood proved, proper course would be possession through partition for the parties. Prior to the pending proceedings before the Civil Court and without adopting the legal course, the valuable right of the parties will be infringed.

Lostly, the concerns of the decree holder that he is entitled for entire area of 4 t/z marlas, it is not possible while executing the eviction order passed againsl the tenant havtng lesser are.a in their possession for specific constructions. In case, his purchase area is less; he is at liberty to seek appropriate remedy is he desires so.

Thus, based on aboye made discotrse, the symbolic possession of the plot bearing # 1594 situated at Kochi Bazar Doma Gali, Peshawar City behind the possession of Hameed Ullah is hereby given to the Decree Holder and all the concerned parties are informed in open court today.

More so, the Decree Holder also claimed the execution ofthe outstanding rents and costs of litigation but from appreciation oflinal decree, no determination of rent or costs are made by the Rent Tribunal. The eviction order was passed on proof of tenancy straightaway.

Therefore, in absence of specific determination of outstanding rent and costs, same could not be executed for which decree holder is at liberty to seek proper remedy subject to all just other legal exceptions. "

7 Both the petitioner and; respondents No.6 to 14 being aggrieved from the said findings filed their respective appeals before the learned Appeal Court. After hearing the learned counsel for the parties, learned Appeal Court dismissed the appeal of respondents No.6 to 14 and while partially allowing the appeal of the petitioner, set aside the ibid order of the leamed Executing Court to the extent of symbolic possession of house No.l594 and in tum directed the leamed executing court to hand over the constructive possession of the rear portion of the house now in the shape of vacant plot to Gul Kheydin in view of the eviction decree by leaving 312 square feet front portion, which is in possession of Hameed Ullah vide ISB) Jttnd S M Atiqu W,

impugned judgment and order dated 28.08.2023. The operative part of the ibid judgment is reproduced below for convenience:- "In context of the aforesaid inference drawn by the executing court which needs interference of this cowt as discussed earlier that admittedly Iulst. Malaika Begum was nat in possession of front portion ofhouse when she transferred the ownership of suit house of 4 % marla in totol to Gul Khaideen nor she could able to establish her ownership on front portion of the house against predecessor Ghulam Bilal nor Ghulam Bilal ever remained tenant of Gul Khaideen, therefore, admittedly the status of title of Gul Khaideen / decree holder, which he derived from lutst. Malaika Begum would remain the same as that of the status of vendor / lulst. Malaika Begum, who thereafier remained the tenants and therefore, lhe learned executing court has rightly inferred that the Gul Khaideen has every right to claim his deficit portion of purchased house out oftotal 4 % marla to seek proper remedy against luht. Malaikn Begum if he desires so. Similarly, Hameed Ulah who is in occupation of the front portion of the house on the strengthen of pwchasing the said house to the extent of j12 square feet area, are required to prove their ownership before proper forum whose suit is already subiudice before proper forum while admittedly neither Ghulam Bilal or Hameed Ullah remained tenants of Gul Khaideen nor any eviction decree has passed against Ghulam Bilal or Gul Khaideen therefore, the eviction decree of Gul Khadeen in his capacity of being landlord wtder execution of rent petition to the extent of

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312 square "feet for the front portion of the house No.I594 is not executable, however, the impugned orders of the executing court to the extent of symbolic possession of the house No.1594 stands set aside by giving directions to the executing court for handing down the constructive possession of the rear portion of the lnuse now in the shape of vacant plot by leaving only 312 square feet front portion in front of Hameed Ullah while remaining entire house / plot slall be delivered to Gul Khaideen in view of the eviction decree while so far as the approach / access to the main street is concerned, Hameed Ullah in his suit No,284/1 filed against Ghulam Bilal etc. himself disclosed the boundaries in his plaint whereby he mentioned the house of Mst. Malaika Begum at the back ofhis house, meaning thereby that Iuht. Malailra Begum etc. who were residing at the back of Ghulam Bilal etc. were having approach / access to the main street, which apparently has been blockcd presently by Hameed Ulah as it is not conceivable to a prudent mind that Mst. Malailra Begum etc. wlrc were residing at the rear portion of the house No.I594 having only approach / access to the main street through the house of Ghulam Bilal was using a helicopter or any other meaw to approach the main street. Hence, it is con/irmed from the available record that the said access to the rear portion of House No.l594 has been blocked by Hameed Ullah which blockade is required to be removed by the executing court by leaving only 312 squore feet house to Hameed Ulah as per his purchased claim regarding which, he has yet to

prove his ownership while admittedly he has not owner of remoining portion of House No.1594, therefore, the executing court is directed to execute the eviction decree by handing over possession to Gul Khaideen of remaining portion of house No. I 594 as directed above.

Similarly, the prayer of DH / Gul Khaideenfor recovery of outstanding rent was rightly turned down by executing coutt as the eviction order of the trial court was passed on proof of tenancy with no determination of outstanding rent nor any decree of outstanding rent infield. Hence for wlwt has been discussed above, appeal No.02/RA of Mst. Malaika Begum stands dismissed while the objections of Ghulam Bilal / Hameed Ulah etc as well a.s appeal No.0I/RA of Gul Khaideen stands partially accepted as per observations and directions in afore referred paras.

8 Record shows that Mst. Malka Begum was owner of the disputed house on the strength of a Gift Deed dated 09.02.2007 . She sold the said house to petitioner (Gul Kheydin) vide registered deed No.1338, dated 26.03.2007. The ibid registered deed was challenged by the objectors in a civil suit filed before the competent court of law by alleging therein to be the owners in possession of the disputed house vide registered deed No.2968, dated 24.11.1926, however, the same was dismissed in default vide order dated 25.05.2013 against which their restoration application was also dismissed vide order dated 07.06.2014 and; thereafter, their revision petition against

v the ibid order was also dismissed in default vide order dated 13.11.2014. Even their application for restoration of ibid revision petition dismissed in default vide order dated 13.11.2014 was also dismissed through order dated 11.06.2015 and; the said order has attained finality being not challenged before the higher forum. Record further suggests that after purchase of the disputed house from Mst. Malka Begum through registered deed No.1338, dated 26.03.2007, the petitioner rented it out to her along with her children and; they remained his tenants for a considerable long period, albeit, subsequently, they made default in the payment of monthly rent, which compelled the petitioner to file an eviction petition against them, wherein, the objectors (Ghulam Bilal, etc) too, preferred an application for their impleadment, however, they failed to succeed their desired relief and; finally, leamed Rent Controller, Peshawar decided the eviction petition in favour of the petitioner vide judgment and decree dated 07.06.2016, which has also attained finality being upheld upto the august Apex Court.

9.Besides, it is apparent from the available record that the objectors Ghulam Bilal and others, after their failure in the earlier round of litigation between the petitioner-landlord (Gul Kheydin) and his tenants (Mst. Malka Begum & others) before the learned Rent Controller and; dismissal of his ibid civil suit in default, brought another declaratory suit in respect of the suit house, at their back, against the Public at large before 60 n6ne S l'l lfiw

the learned Civil Judge-XVII, Peshawar on 27.06.2019 and after getting an ex-parte decree in the suit vide judgment and decree dated 04.09.2019, not only got registered the suit property in their names on the strength of ibid ex-parte decree, but also alienated it to the extent of 312 square feet in favour Hameedullah (respondent No.5) through sale deed dated 18.02.2020 followed by agreement dated 04.06.2020 and; to the extent of 730 square feet in favour of Abdul Khaliq vide sale deed dated 12.03.2021. Record shows that against the ibid ex- parte decree dated 04.09.2019, petition uls 12 (2) CPC of Gul Kheydin is pending before the competent court of law. Record further shows that both Hameedullah and Abdul Khaliq have has also filed their respective civil suits seeking declaration to the effect that they are owners in possession of 312 and 730 square feet respectively in the disputed house on the basis of ibid sale deeds. However, petitioner Gul Kheydin has impleaded himself in the panel of defendants in the suit filed by Hameedullah while questioned the judgment and decree dated 28.07.2021 passed in the ibid suit in favour of Abdul Khaliq through filing petition uls 12 (2) CPC. Both the matters are still pending before the competent court of law. Apart above, objectors had also moved a petition for issuance of 'Letter of Administration' in respect of the suit property on 09.09.2020, which too, was accepted by the learned Senior Civil Judge / Guardian Judge, Peshawar vide order dated 03.02.2021 and;

consequently, Letter of Administration was issued in his favour on the same very date. The said order has also been questioned

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by the petitioner (Gul Kheydin) in a petition filed u/s 12(2) CPC and; during the pendency of said petition, learned Trial Court has suspended the operation of Letter of Administration dated 03.02.2021 till further orders vide order dated 08.03.2021. At this stage, any comment upon merits of ibid civil suits and; petitions filed nls l2(2) CPC would definitely prejudice the interest of either parties, therefore, the same are left for the exercise ofjurisdiction ofthe concerned courts.

10.Notwithstanding, the pendency of ibid proceedings in respect of the suit house between the parties before different competent courts of law, since the judgment and decree dated 07.06.2016 passed in favour of the petitioner by the leamed Rent Controller, which has attained finality being upheld by the august Apex Court on 10.12.2018, much earlier from the alleged ex-parte decree dated04.09.2019 and; ftrther alienation of the disputed house in favour of Hameedullah and Abdul Khaliq, therefore, leamed executing court was required to execute the same in its letter and spirit. As of now, it is settled that the executing court cannot go beyond the decree and; must execute it in its letter and spirit. 2012 G B L R 148 [Supreme Appellate CourtJ Habibullah & 18 others Ys. Rahimullah & 11 others. Such legal and; factual aspect of the case has not been properly appreciated by both the learned courts below while handing down the impugned findings, rather, influenced from ibid proceedings and; thereby erred in law and; travelled beyond their jurisdiction/domain by modiffing the actual 60 Jutdc. s M firiqk Shot

decree, granted in favour ofthe petitioner-decree holder and; as such, the findings of both the Courts below are not sustainable in the eye of law and; thus, are set aside in the given facts and;

circumstances of the case and; the leamed Executing Court is in tum directed to execute the decree under implementation in its letter and; spirit by issuing warrant of physical possession of the entire disputed house in favour of the petitioner-decree holder Gul Kheydin and; hand over its peaceful possession to him without any further delay.

11.So far as connected CR No.870-P/2023 filed by the objectors is concerned, suffice it to say, that they are dragging the petitioner / decree holder in frivolous litigation in order to deprive him from the fruits of decree passed in his favour way back in the year 2016, as they after failing in their nefarious designs in the earlier round of litigation against the petitioner/decree holder, brought another civil suit at his back against the Public atLarge, on the basis of same very registered deed No.2968, dated 24.11.1926, before the leamed Civil Judge, Peshawar on 27.06.2019 and; succeeded to get an ex- parte decree in his favour on 04.09.2019 and; thereafter, they not only allegedly sold the front portion ofthe disputed house to one Hameedullah (respondent No.5) but also sold the rear portion of the same to one Abdul Khaliq on the strength of said ex-parte decree, despite the fact that the said ex-parte decree is still subjudice before the concerned court of law. It is settled law that when an order of ejectment is passed by the learned

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5 Rent Controller, the Executing Court is bound to give effect to it and could not entertain objection petitions subsequently on the issues already decided by the learned Rent Controller nor could it entertain any claim of respondents to enlarge the scope of rent proceedings. It is also settled that leamed Executing Court could not entertain any objection petition on the strength of issues already decided by it nor could it consider objection petitions on the basis of issues pending in collateral proceedings before any other forum. 2014 SCMR 1210 Tohir Hussain & others Ys. Ilyos Ahmaad & others. Here in the instance case, the objections, so raised by the objectors before the leamed Executing Court, have already agitated by them during the pendency of eviction petition, therefore, they cannot be allowed to re-agitate the same in the execution proceedings through the present objection petition. As such, the objection petition of the petitioners is liable to dismissal being not maintainable in the given facts and circumstances of the case and; is thus, dismissed.

12.Consequently, instant revision petition filed by Gul Kheydin (petitioner) is allowed in the terms mentioned in Para-I0 of this judgment while connected CX No.870-P/2023 filed by Ghulam Bilal and others stands dismissed being meritless. Allied miscellaneous applications are also disposed of accordingly

Announced.

Dated:04.11.2024.

JUDGE

(58)Jtsn@ S- M- Afitq. Stoh