2015 C L C 89

 
[Lahore]
 
Before Mamoon Rashid Sheikh, J
 
ABDUL GHANI----Petitioner
 
Versus
 
GHULAM ABBAS TAMANNA and others----Respondents
 
Writ Petition No.18359 and C.Ms. Nos.2, 3 of 2013, decided on 23rd
October, 2013.
 
(a) Constitution of Pakistan---
 
---Art. 199--- Constitutional jurisdiction--- Scope--- Exercise of
Constitutional jurisdiction of High Court is discretionary in nature and
one who seeks equity must do equity.
 
Abdur Rashid v. Pakistan and others 1969 SCMR 141; Waheed Azmat
Sheikh v. Chairman, Habib Bank Limited and 2 others 2002 CLC 929;
Messrs Trade Lines through Managing Partner and others v. Bank of
Punjab through General Manager and another 2002 CLD 1776; Lahore
Development Authority through Director-General, LDA, Lahore v. Mst.
Shamim Akhtar and another 2003 MLD 1543 and Rehmat Din and others
v. Mirza Nasir Abbas and others 2007 SCMR 1560 rel.
 
(b) Civil Procedure Code (V of 1908)---
 
----S. 47---Executing Court---Jurisdiction---Executing Court cannot go
beyond the decree.
 
(c) Specific Relief Act (I of 1877)---
 
----S. 8--- Civil Procedure Code (V of 1908), S.47---Constitution of Pakistan,
Art.199---Constitutional petition---Execution of decree---Objection
petition---Suit for recovery of immovable property was decreed by High
Court in exercise of revisional jurisdiction in favour of plaintiff---Plea
raised by petitioner was that objection petition was filed by him in
furtherance of the order passed by Supreme Court and decree could only
be executed through partition of land as it was part of joint Khata---
Validity---Petitioner concealed material facts and did not raise such point
as a ground in petition and it appeared as an afterthought---Petitioner
was unable to point out any illegality or material irregularity having
been committed by Courts below whilst passing order in question---
Petitioner was also unable to point out any exercise of excess of
jurisdiction by Courts below or to show that order in question was
perverse---High Court in exercise of Constitutional jurisdiction declined
to interfere in the order passed by Executing Court---Petition was
dismissed in circumstances.
 
Ch. Imtiaz Ahmad Kamboh for Petitioner.
 
Mian Subah Sadiq Klasson for Respondent No.1.
 
ORDER
 
Main case
 
C.M. No.2 of 2013
 
C.M. No.3 of 2013
 
MAMOON RASHID SHEKH, J.--- The instant petition has been brought by
the petitioner against the orders dated 14-3-2013 and 5-6-2013 passed by
the learned Civil Judge/executing Court, Okara (respondent No.3) and the
learned Additional District Judge, Okara (respondent No.2) respectively,
whereby the petitioner's objection petition in the execution petition filed
by respondent No.1 has been dismissed.
 
2. The brief facts relevant for the present purposes are to the effect that
respondent No.1 purchased land measuring 2-Kanals, 15-Marlas
comprising Khasra No.52/20/1 in Mauza Depalpur, Tehsil Depalpur,
District Okara, through a registered sale-deed dated 12-3-1977. The said
land formed part of a joint khata and was sold to respondent No.1 by one
Barkat Ali the father of the present petitioner. It appears that at the time
of entering the factum of sale in the Revenue Record through Mutation
No.3164, attested on 20-1-1978, only 5/6th of the said land equivalent to 2-
Kanals, 6-Marlas was mutated in favour of respondent No.l. It further
appears that the other co-owner of the joint khata one Mst. Rashidan Bibi
the sister of the said Barkat Ali later transferred the balance 9-Marlas
land in favour of the present petitioner.
 
3. Feeling aggrieved respondent No.1 filed a suit for possession of the
balance 9-Marlas against Barkat Ali and the present petitioner. The suit
as well as respondent No.1's appeal were dismissed. Respondent No.1
was, therefore, constrained to file a revision petition (C.R.No.1134-D of
1986 entitled `Chaudhry Ghulam Abbas v. Barkat Ali and another')
before this Court. C.R.No.1134-D of 1986 was accepted through judgment
dated 24-5-1999 passed by Mr. Justice Maulvi Anwarul Haq (as he then
was) and the suit of respondent No.1 was decreed in the following terms:-
--
 
"...It appears that in order to present a fate accompli the respondent No.1
managed alienation of the remaining 9 marlas of land in favour of his
son respondent No.2 by Mst. Rashidan Bibi. It also appears from the
record that the petitioner also transferred some land in favour of his
wife Mst. Siddiqua Begum on the basis of the said transaction in his
favour. In the light of the factual and legal position of the case the
transaction evidenced by Exh.P1 cannot be held to be illegal or void. The
transaction has taken legal effect and was to remain in force subject to
adjustment at the time of partition. It further appears from the record
that Barkat Ali and his sister effected a partition of this khata without
including the Khasra number sold to the petitioner. It is a matter of
record that the petitioner was not a party to the said partition effected by
way of a family settlement i.e. a private partition given effect by the
Revenue Officer through Mutation No.2852 attested on 30-3-1981.
Needless to say that the partition evidenced by this mutation is
ineffective upon the rights of the petitioner as well as respondent No.2.
 
5. The up-shot of the above discussion is that the sale evidenced by
document Exh.P1 in favour of the petitioner is valid. The partition
effected by means of Mutation No.2852 dated 30-3-1981 is of no legal
consequence and of no effect on the rights of the petitioner as well as
respondent No.2 who were neither parties to the said partition nor, in
fact, land in suit was included therein. It is trite law that a partition
cannot be effected without including of the joint land or property, as
such, a partition is bad in law being partial partition. The petitioner as
well as respondent No.2 are co-sharers to the extent of lands transferred
to them by the two co-sharers i.e. Barkat Ali and Mst. Rashidan Bibi
respectively. The 9 marlas of land shall be adjustable against the other
holding of Barkat Ali in the said khata. The matter of possession will be
determined as and when the said partition of the entire joint khata takes
place at the instance of any of the parties. With these observations, this
civil revision is allowed. The judgments and decrees of the learned
Courts below are set aside and the suit of the petitioner is decreed to this
effect that he is a valid transferee of 2 kanals and 15 marlas of land in the
khata measuring 65 kanals 4 marlas with reference to Register Haqdaran
Zamin for the year 1975-76. The sale of 9 marlas in favour of respondent
No.2 by Mst. Rashidan Bibi shall be deemed to be from the column of
ownership making him an owner in the khata to the extent of 9 marlas.
The excess of 9 marlas in Khasra No.52/20/1 shall be adjustable from the
other holding of Barkat Ali and Mst. Rashidan Bibi in the joint khata at
the time of partition as and when apply for by any of the parties. The
private partition effected by Mutation No.2852 attested on 30-3-1981 with
respect to the said khata (199) shall be of no legal effect on the rights of
the petitioner as well as respondent No.2 and this khata shall be subject
to partition at the instance of petitioner or the respondent No.2 or Mst.
Rashidan Bibi, the vendor of respondent No.2. The matter of possession
will be adjusted as and when the said partition is applied for and takes
place. Parties are left to bear their own costs."
 
4. The learned counsel for the petitioner submits that the decree dated
24-5-1999 passed in C.R.No.1134-D of 1986 could only be executed
through partition of the land as it is part of a joint khata and the warrant
of possession in respect of the balance 9-Marlas cannot be executed
without partition of the land in question. The learned Courts below have,
therefore, erred in dismissing the petitioner's objection petition.
 
5. At the outset, the learned counsel for respondent No.1 calls into
question the maintainability of the petition by inter alia submitting that
the instant petition has been filed by concealment of material facts.
 
6. The learned counsel refers to the written statement and the documents
attached thereto filed by respondent No.1 in response to the instant
petition and submits that the judgment dated 24-5-1999 passed in
C.R.No.134-D of 1986 was not assailed by either party, therefore, it
attained finality. Respondent No.1, therefore, filed an execution petition
for execution of the decree dated 24-5-1999. The petitioner filed an
objection petition therein which was disposed of by the learned
executing Court on 1-11-2000 with the following observation:---
 
"It is crystal clear that the matter about possession is to be settled
initially in the partition suit and not in the execution petition. It has been
specifically ordered that the matter of possession is to be adjusted as and
when the said partition is applied to and takes place. It was pointed out
by the respondent side that the suit has been filed in which the decree
holder has to make appearance."
 
7. Further submits that the partition proceedings brought by the present
petitioner were firstly dismissed by the Tehsildar Depalpur, District
Okara, through order dated 22-11-2000 whereafter the petitioner's suit
for partition was also dismissed by the Civil Judge, Depalpur. The
petitioner did not assail either finding, therefore, the said dismissal has
attained finality.
 
8. Submits that thereafter the learned executing Court issued warrants of
possession in favour of respondent No.1 through order dated 13-4-2001.
The present petitioner challenged the said order through a revision
petition. During the course of proceedings in the said revision petition,
on 19-5-2001, the learned counsel for the present petitioner made a
statement before the learned Additional District Judge, Okara, to the
following effect:---
 
"I have no objection if the possession of land measuring 2-kanals, 15-
marlas bearing Khasra No.52/20/I situated in Depalpur may be handed to
the petitioner decree-holder."
 
9. As a consequence, the learned Additional District Judge, Okara,
appointed the Tehsildar Depalpur as a Local Commissioner in order to
demarcate the land measuring 2 Kanals, 15 Marlas bearing Khasra
No.52/20/1 situated at Mauza Depalpur, District Okara, and to hand over
the possession thereof to respondent No.l.
 
10. Further submits that the Local Commissioner gave a favourable
report in favour of respondent No.1, however, the matter kept on
pending as the petitioner filed repeated objection petitions. Eventually
the petitioner's objection petition was dismissed by the learned executing
Court through order dated 26-6-2006 and the petitioner was directed to
hand over the possession of the land in question to respondent No.1 till
21-7-2006. The petitioner's appeal against the order dated 26-6-2006 was
dismissed through the order dated 24-7-2006 by the learned Additional
District Judge, Okara. The petitioner challenged the orders dated 26-6-
2006 and 24-7-2006 through C.R. No.1770 of 2006. The said petition was
dismissed by Mr. Justice Maulvi Anwarul Haq (as he then was) through
the order dated 3-10-2007 in the following terms:---
 
"This civil revision involves interpretation of my judgment dated 21-5-
1999 (sic) in C.R.No.1134 of 1986. The dispute arose during the course of
execution on objections filed by the petitioners, the learned Executing
Court concluded that according to the said judgment of this Court first a
partition will have to be effected and then possession of the land found
to be validly purchased by the respondent is to be given. This was done
vide order dated 1-11-2000. A learned Additional District Judge, Okara,
allowed the first appeal filed by the respondents holding that possession
is to be given and is to be retained by the respondent till such time that
the Khata is partitioned.
 
2. Learned counsel for the petitioner contends that the learned Executing
Court had correctly interpreted the judgment while learned counsel
appearing for the respondent are of the opinion that the interpretation
placed on the judgment by the learned Additional District Judge is
correct.
 
3. I have gone through the said judgment as also the decree prepared by
the office pursuant thereto that the facts of the case are recorded therein
and correctness thereof has not been questioned by any of the learned
counsel. Having examined the said judgment dated 21-5-1999 (sic) in
C.R.No.1134 of 1986. I have no manner of doubt in my mind that the
learned Additional District Judge has very correctly interpreted the
judgment. As explained by me in detail therein the land was held to be
lawfully sold to the respondent by Barkat Ali deceased vide registered
sale deed Exh.P.1 was to be delivered to him, while the land later sold in
that particular Khasra number by Mst. Rashidan Bibi in favour of Abdul
Ghani petitioner was to be adjusted to his credit in the column of
ownership. The matter of retention of possession and the extent thereto
was to be ultimately decided in a suit for partition. This was the true
spirit of the judgment. Needless to note that the respondent had
throughout been fighting for possession of the land purchased by him in
the specific Khasra number. The civil revision accordingly is dismissed.
No orders as to costs."
 
11. Further submits that the petitioner challenged the order dated 3-10-
2007 before the Hon'ble Supreme Court through C.P.No.1600-L of 2007.
The said C.P. was dismissed as withdrawn through the order dated 16-3-
2011. Further submits that in the meantime the execution proceedings
were adjourned sine die. Upon dismissal of the petitioner's C.P. No.1600-L
of 2007 the execution proceedings were revived and through order dated
4-6-2012 the learned executing Court issued warrants of possession. This
order was challenged in appeal by the petitioner, however, the
petitioner's appeal was dismissed by the learned Additional District
Judge, Okara, through order dated 25-9-2012. The petitioner challenged
the orders dated 4-6-2012 and 25-9-2012 before this Court. Respondent
No.1, however, does not know the fate of those proceedings as he was
away for performance of Hajj.
 
12. The present petitioner later on filed the objection petition which was
dismissed through the impugned order dated 14-3-2013. The petitioner's
revision against the order dated 14-3-2013 was dismissed through the
order dated 5-6-2013 by the learned Additional District Judge, Okara.
 
13. Contends that the matter has been finally decided by the Hon'ble
Supreme Court. The petitioner has filed repetitive objection petitions on
frivolous grounds. The instant petition is liable to be dismissed forthwith
as the petitioner has deliberately concealed the above mentioned facts.
As the petitioner has not approached this Court with clean hands,
therefore, he is not entitled to any discretionary relief.
 
14. When confronted with the above the learned counsel for the
petitioner submits that there was no requirement for disclosing the
above facts as the petitioner had approached the learned executing Court
on a new point at the execution stage.
 
15. Submits that the proceedings before the Hon'ble Supreme Court were
withdrawn on the statement of the learned counsel which was to the
effect that the petitioner does not press C.P.No.1600-L of 2007 in order to
avail proper remedy under the law. Contends that the present objection
petition before the learned executing Court is the said remedy.
 
16. The learned counsel for respondent No.1 submits that the order dated
16-3-2011 whereby the Hon'ble Supreme Court dismissed as withdrawn
the petitioner's C.P.No.1600-L of 2007 was to the following effect:---
 
"Learned counsel for the petitioners, after arguing this petition at some
length, opted to withdraw this petition in order to avail proper remedy
under the law. Accordingly, it is dismissed as having been withdrawn."
 
Contends that the fresh proceedings before the learned executing Court
amount to an abuse of the process of the Court. Moreover, the said
proceedings are not even otherwise maintainable as the partition
proceedings earlier brought by the petitioner were dismissed for non-
prosecution and the petitioner did not take any steps for restoration of
the same. The said dismissal has, therefore, attained finality.
 
17. I have considered the arguments addressed at the bar and have also
gone through the record. I find force in the contention of the learned
counsel for respondent No.1 that the instant petition has been filed by
concealment of material facts. Indeed, the major sequence of events vis-
a-vis the litigation between the parties and passing of repeated adverse
orders against the petitioner have not been mentioned in the petition.
The learned counsel for the petitioner has tried to justify non-disclosure
by submitting that the latest objection petition filed by the petitioner
before the learned executing Court is the remedy which the petitioner
has availed of in furtherance of the order dated 16-3-2011 passed by the
Hon'ble Supreme Court in C.P.No.1600-L of 2007. This contention of the
learned counsel is without force as no ground to this effect has been
taken in the petition, moreover, the petitioner has not even vaguely
referred to passing of the order dated 16-3-2011 by the Hon'ble Supreme
Court. Not only has the petitioner concealed the factum of filing of
C.P.No.1600-L of 2007 and the dismissal thereof by way of withdrawal but
he has also concealed the factum of filing of C.R.No.1770 of 2006 and the
dismissal thereof through the order dated 3-10-2007. The petitioner has
also concealed the fact that his learned counsel made a statement before
the learned Additional District Judge, Okara, on 19-5-2001 to the
following effect:---
 
"I have no objection if the possession of land measuring 2-kanals, 15-
marlas bearing Khasra No.52/20/1 situated in Depalpur may be handed to
the petitioner decree-holder."
 
18. It is a settled principle of law that the exercise of the constitutional
jurisdiction of this Court is discretionary in nature. It is a further settled
principle of law that one who seeks equity must do equity. Reliance in
this regard is placed on the judgments reported as "Abdur Rashid v.
Pakistan and others" (1969 SCMR 141), "Waheed Azmat Sheikh v.
Chairman, Habib Bank Limited and 2 others" (2002 CLC 929) "Messrs
Trade Lines through Managing Partner and others v. Bank of Punjab
through General Manager and another" (2002 CLD 1776), "Lahore
Development Authority through Director-General, LDA, Lahore v. Mst.
Shamim Akhtar and another" (2003 MLD 1543) and "Rehmat Din and
others v. Mirza Nasir Abbas and others" (2007 SCMR 1560).
 
19. As mentioned above, the petitioner has not even taken the trouble of
mentioning any of the facts or passing of the adverse orders against him
as brought to the notice of the Court by the learned counsel for
respondent No.1. In view thereof, I am not inclined to exercise my
discretion in favour of the petitioner.
 
20. As to the merits of the case one only needs to go through the
judgment and decree dated 24-5-1999 passed in C.R.No.1134-D of 1986
and the "interpretation" thereof made through the order dated 3-10-2007
passed in C.R.No.1770 of 2006. Both judgment and order (the relevant
portions whereof have been quoted in Paras-3 and 10 above) have been
passed by Mr. Justice Maulvi Anwarul Haq (as he then was) and are self
explanatory. It is a settled principle of law that an executing Court cannot
go beyond the decree. The learned Courts below have followed this
principle whilst passing the impugned orders. As already observed the
contention of the learned counsel for the petitioner that the latest
objection petition has been filed by the petitioner before the learned
executing Court in furtherance of the order dated 3-10-2007 passed by
the Hon'ble Supreme Court in C.P.No.1600-L of 2007 is not tenable
primarily for the reason that the petitioner has concealed material facts
and equally importantly for not having raised this point as a ground in
the petition. Indeed, the stance of the petitioner appears to be an
afterthought.
 
21. Moreover, the learned counsel for the petitioner has been unable to
point out any illegality or material irregularity having been committed
by the learned Courts below whilst passing the impugned order. He has
similarly been unable to point out any exercise of excess of jurisdiction
by the learned Courts below or to show that the impugned orders are
perverse.
 
22. Under the circumstances, the petition fails and is dismissed
accordingly.
 
There is no order as to costs.
 
MH/A-169/L Petition dismissed.
;