Maulvi Anwar-ul-Haq, J.--On 22,4.2004 the respondent filed an application for ejectment of one Ch. Muhammad Riaz from a house located in Lahore Urban Area. The said tenant was served who put in appearance and took several opportunities to file written statement but failed to do so. His defence was accordingly struck off on 30.7:2004 and the case was adjourned to 15.9.2004 for recording ex-parte evidence. On this date the said tenant, who is the brother of the present petitioner, filed an application for setting aside the ex-parte proceedings while the petitioner filed an application-under Order I, Rule 10 CPC stating that he should be impleaded as a party as he was the original owner of the property and that he had not sold the house to the respondent. The said application was taken up on 28.1.2005 when the learned Rent Controller after hearing all concerned appointed a Local Commissioner. It was reported-that it is the tenant who is in possession of the premises. The objections filed by the petitioner were rejected and the application under Order I, Rule 10 CPC was dismissed on 6.6.2005. Against this order an appeal was filed which was dismissed on 19.7.2005. He then filed W.P. No, 16449/05 which was dismissed by this Court on 2.2.2006.
2. Meanwhile, the tenant was also bringing one application after the other and the matter was ultimately decided and an ejectment order was passed on 22.1.2007. A first appeal against this order was dismissed by the learned ADJ on 2.6.2007. W.P. No, 6628/07 filed by the said tenant was dismissed by this Court on 27.6.2007. After completing the said round the process of execution was commenced when the petitioner filed objection petition stating that he is the lawful owner and had not sold the house to the respondent lady. It may also be noted here that admittedly a regular civil suit for cancellation of the sale-deed in favour of the respondent lady has also been filed which is pending.
3. The objection petition was dismissed by the Executing Court on 19.7.2007. A first appeal filed by the petitioner was dismissed by a learned ADJ Lahore on 9.8.2007.
4. Learned counsel for the petitioner contends that the learned lower Courts have acted without lawful authority while observing that in the presence of the suit the objection petition would not be competent. According to him although the tenant is his brother yet he is colluding with the respondent lady and further that in fact he is in possession of the house as an owner.
5. Learned counsel for the respondent, on the other hand, contends that both the brothers are in league and that the tenant had been contesting the matter tooth and nail right upto this Court. The petitioner also had a first round upto this Court and that the objection petition is a mala fide attempt to avoid the execution of the lawful ejectment order. According to him in the circumstances of this case the impugned order cannot be said to be without jurisdiction or illegal.
Both the learned counsel inter alia rely on the case of Mst. Khurshid Begum etc. vs. Mr. Ghulam Kubra etc. (1982 SCM R 90).
6. I have gone through the copies of the records appended with this civil revision as also file of W.P.
No, 6628/07, which was requisitioned, with the assistance of the learned counsel for the parties. The history of the proceedings has already been narrated above. There can be no cavil with the proposition that in terms of Rule 103 of Order 21 CPC all questions relating to title and possession between an applicant under Rule 97 or an applicant under Rule 100 and the opposite party shall be adjudicated and determined by the Executing Court and ho separate suit shall lie. In this case, obviously the petitioner is an applicant under the said Rule 100 and it is also not his case that he has been dispossessed. Upon a reading of the said provision of law as interpreted by the Honourable Supreme Court of Pakistan in the said case of Mst. Khurshid Begum etc. the questions had to be decided by the Executing Court. However, the matter does not end here. As stated by me earlier, the petitioner already had in proceedings inter partes i,e, main ejectment petition, on his own application had obtained a finding that he is not in possession and that his brother is in possession as a tenant and the consequent order dismissing the application for being impleaded as a party has been upheld by the appellate authority as also this Court.
7. The contention that the brother/tenant is colluding with the respondent lady is also not at all palatable upon a reading of the record. All conceivable applications and all manners of tactics were made to delay the proceedings in the Rent Controller's Court. It is a strange cc-incidence that the application for impleadment was filed by the petitioner at the same time when his brother filed application for setting aside of the order closing his defence for failure to file written statement and both the brothers continued in pursuance of their respective applications till this Court.
8. To my mind, the record speaks otherwise showing the anxiety of both the brothers that the ejectment order is not executed. In the said judgment, Honourable Supreme Court, after holding that the jurisdiction is there to decide the questions of title and possession, upon a finding that the application was mala fide proceeded to set aside- the order passed by Executing Court framing the issues to determine the objections and the application was dismissed summarily.
9.There is yet another aspect of the matter. Order 21 Rule 103 CPC covers the case of an applicant inter alias under Rule 100 of Order 21 CPC. The said Rule 100 contemplates dispossession of a person other than the judgment debtor. In view of the said judgment of the Honourable Supreme Court of Pakistan it can be said that it also contemplates case of person who is sought to be dispossessed but is not a judgment debtor. As noted by me above, it has been found in the ejectment petition itself while petitioner was present before the learned Rent Controller that he is not in possession, This being so, the objection petition even otherwise would not be maintainable in view of the said B fact. The apprehension expressed by the learned counsel that in view of the bar contained in Order 21 Rule 103 PC his suit would also be not maintainable is rather misplaced With these latter observations; the Civil Revision is dismissed but without any order as to costs.