SYED SAKHI HUSSAIN BUKHARI, J.---This appeal is directed against the order dated 13-4-2004 passed by learned Judge Banking Court-I, Faisalabad whereby application brought by Muhammad Nadeem, respondent No.1 was accepted and appellant was directed to vacate land measuring 1 Marla 230 sq. ft.
2. Relevant facts for the disposal of this appeal are that one Ghulam Mustafa obtained loan from M.C.B. (respondent No. 3) and mortgaged his land measuring 11 Marlas, 3 Sarsahis bearing Khasra No.14362/10491 but failed to repay loan, therefore, respondent- Bank filed suit for recovery against him which was decreed in favour of respondent-Bank. Ghulam Mustafa failed to pay decretal amount, therefore, bank filed execution petition and aforesaid land was auctioned by learned Banking Court. Abdul Hafeez, appellant purchased aforesaid land in open auction and then applied for possession. However, he obtained possession of land measuring 12 Marlas, 142 sq. ft. Muhammad Nadeem, respondent No.1 filed application under sections 151 and 141, C.P.C. before learned Executing Court for restoration of possession of land measuring 1 Marla, 230 sq. ft. on the ground that Abdul Hafeez had obtained possession of land measuring 12 Marlas, 142 sq. ft. without any justification and illegally because mortgagor (Ghulam Mustafa, judgment- debtor) owned land measuring 11 Marlas, 3 Sarsahis only. Learned Executing Court framed issues, recorded evidence of the parties and found that Abdul Hafeez, appellant had obtained possession of land measuring 1 Marla, 230 sq. ft. shown in the site plan Exh.P.W.1/2 (Mark-A) bearing Khasra No.13663/12835/10490, which was not his entitlement and directed him to vacate the same and deliver possession to Muhammad Nadeem, respondent No.1 vide order dated 13-4-2004. Hence this appeal.
2. We have heard the arguments and perused the record.
3. As mentioned above, M.C.B. (respondent No.3) had filed suit for recovery of loan against one Ghulam Mustafa and the same was decreed in favour of respondent-Bank. However, Ghulam Mustafa (judgment-debtor) failed to pay decretal amount, therefore, learned Banking Court sold his land (Khasra No.14362/10491 measuring 11 Marlas, 3 Sarsahis already mortgaged by him in favour of bank). Abdul Hafeez, appellant purchased the same in open auction but obtained possession of land n ensuring 12 Marlas, 142 sq. ft. As such he obtained possession of land measuring 1 Marla, 230 sq. ft in excess of his entitlement. Muhammad Nadeem, respondent No. I filed application before Executing Court and prayed for delivery of possession of land measuring 1 Marla, 230 sq. ft. It is clear from the record that learned Executing Court framed issues, recorded evidence of the parties and found that actually Ghulam Mustafa was owner of land measuring 11 Marlas, 3 Sarsahis and he had mortgaged the same in favour of respondent-Bank. Also that Abdul Hafeez, appellant could get possession only of said land (measuring 11 Marlas, 3 Sarsahis) but he obtained possession of 12 Marlas 142 sq. ft. It was also observed that he obtained possession of land measuring 1 Marla 230 sq. ft. from Khasra No.13663/12835/10490 and the same belonged to Muhammad Nadeem etc., (respondent No.1 and his brothers). The record shows that learned trial Court had appointed Tehsildar, Chiniot as local commissioner as directed by this Court. He made statement. as A.W.1 and submitted report Exh.A,W.1/1 along with site plan Exh.A.W.1/2. According to his statement, appellant had obtained possession of land measuring 1 Marla, 230 sq. ft. from Khasra No.13663/12835/10490 owned by Muhammad Nadeem etc. without any entitlement. There is nothing on record to show that Abdul Hafeez was entitled to get possession of aforesaid land (1 Marla, 230 sq. ft.) during execution proceedings. As stated earlier, learned trial Court decided the application brought by Muhammad Nadeem, respondent No.1 after detailed inquiry and after appraisal of entire material available on record. So claim of appellant is baseless. The order dated 13-4-2004 shows that learned trial Court observed that:-- "The site plan' shows that land measuring 1 Marla 230 sq. ft. which includes a shop and an office is not located in Khasra No.14362/10491, but it is out of the boundaries of Khasra No.14362/10491. Syed Masood Hussain Zaidi, Tehsildar Chiniot/Local Commissioner, who put his report Exh.P.W.1/1 on record, while making his statement as A.W.1 and Circle Patwari namely Maqsood Hussaiik while making his statement as A.W.2, both of them stated that 1 Marla, 230 sq. ft of land is located in Khasra No.13663/12835/10490, and this Khasra is the ownership of Muhammad Nadeem petitioner and his two brothers namely Saleem and Abdul Jabbar. These statements of the said witnesses were not challenged in the cross-examination to these witnesses. Thus is impliedly admitted that Muhammad Nadeem applicant and his two brothers are the owners of Khasra No.13663/12835/10490, wherein 1 Marla, 230 sq. ft. land is located. Not only that, but the Revenue Record also speaks the same. The applicant produced in his evidence, the certified copies of three sale-deeds, copies of mutations and of Record of Rights pertaining to the years 1999-2000 which show that the Khewat Measuring 17 Marlas in which Khasra No.13663/12835/10490 measuring 9 Marlas is located was purchased by Nadeem applicant and his brothers. It is admitted fact that Ghulam Mustafa, judgment-debtor had mortgaged 11 Marlas, 3 Sarsahi of land in Khasra No.14362/10491 with the bank and the same was purchased by Abdul Hafeez, auction-purchaser.
Abdul Hafeez auction-purchaser while making his statement as R.W.3 stated so in the very examination-in-Chief. Ghulam Mustafa whose land was mortgaged and auctioned had no concern with Khasra No.13663/12835/10490, which was the ownership of Nadeem, applicant and his brothers. There is no cavil that no land located in Khasra No.13663/12835/10490 was ever mortgaged or auctioned. A shop and an office is also shown in Exh.P.W.-1/2 in 1 Marla 230 Sq. ft. of land which falls in Khasra No.13663/12835/10490 and Fiaz Ahmed Hashmi R.W-4 a witness of the respondent-Bank admitted that no office or shop is mentioned in the schedule of property, which was more gaged with the bank. Mortgage deed Exh.R-13 put on record also shows the same."
In the circumstances of the case, we find that, learned trial Court has rightly accepted application brought by Muhammad Nadeem, respondent No. I. The impugned order is just and proper. It seems that appellant has filed this appeal only to retain said land (measuring 1 Marla 230 sq. ft.) without any justification.
4. The upshot of the above discussion is that this appeal has no force and the same is accordingly dismissed. No order as to costs.