MUHAMMAD JEHANGIR ARSHAD, J.--- This appeal proceeds against the judgment dated 17-3- 2007 passed by learned Additional District Judge, Faisalabad, whereby the first appeal filed by the appellant against the judgment of the learned trial Court, dated 2-2-2006 decreeing the suit for possession in favour of the respondents, was dismissed.
2. The facts in brief are that deceased respondent Faqir Muhammad claiming himself as owner of Plot No.1386 measuring 3-Marla situated in Kaleem Shaheed Colony, Faisalabad, filed a suit against the appellant seeking possession of the said plot claiming that the appellant was occupying the said plot in an unlawful and illegal manner. The suit was contested by the appellant who in his written statement besides taking the plea that plot was in fact mortgaged by Faqir Muhammad deceased on receipt of Rs,3,00,000 with the undertaking that on payment of the said amount, Faqir Muhammad would be entitled to get back the possession of the plot from the appellant. Learned trial Court in view of pleadings of the parties, after framing issues and recording evidence, vide judgment dated 2-2-2006 decreed the suit in favour of. Faqir Muhammad respondent against the appellant with costs. Against the above mentioned judgment and decree of the learned trial Court the appellant field first appeal but the same was dismissed by learned Additional District Judge, Faisalabad vide judgment, dated 17-3-2007. Through this regular second appeal both the above mentioned judgments of two Courts below have been assailed.
3. It is submitted by learned counsel for the appellant that despite expressed plea taken by the appellant in his written statement with regard to the payment of three lac rupees to Faqir Muhammad respondent as security i,e, mortgage, no issue to this effect was framed by the learned trial Court; further that as the appellant had effected improvement on the plot in question with the consent of Faqir Muhammad deceased respondent therefore, he was also entitled for the recovery of costs/ compensation for improvements carried by him on the plot in question and finally that possession of the appellant over the plot in dispute was not illegal but permissive and with the consent of. Faqir Muhammad respondent, therefore,, the suit filed by Faqir Muhammad respondent was not maintainable. Lastly it is argued that appellant was at least entitled to the return of three lac rupees which he had advanced to Faqir Muhammad deceased respondent as mortgage money and in case the suit of Faqir Muhammad deceased respondent was to be decreed ultimately the same should have been decreed subject to payment of costs/ compensation of the said amount to the appellant.
4. In response to the pre-admission notice, Mr. Ishfaq Qayyum Cheema, Advocate has appeared on behalf of the respondents and at the very outset has brought to the notice of the Court that after the judgments and decrees of two Courts below the appellant namely Tahir Mehmood at the first instance filed an application under section 12(2), C.P.C. Seeking a declaration that judgments and decrees of two Courts below were obtained with fraudulent tactics; and secondly he also filed a suit for declaration, confirmation of possession, specific performance, permanent mandatory injunction in lieu of contract/ mortgage deed/ conditional sale deed in respect of plot in question.
The learned counsel has also brought on record photos copies of the above noted proceedings.
Both these matters shall be taken up on the close of this judgment.
5. I have considered the arguments of learned counsel for the parties and have also gone through the pleadings as well as evidence led by the parties.
6. Although in para.1 of the written statement on merits, there is a reference with regard to payment of three lac rupees as well as some understanding with regard to repayment of this amount for re- delivery of possession of the plot to Faqir Muhammad respondent yet the fact remains that at the very beginning of the said para., the appellant has denied the ownership of Faqir Muhammad deceased respondent and in this view of the matter, how the appellant could lay claim for the return of the said amount. Again Exh.D.5 has been placed on the record without its formal proof, inasmuch as, none of the witnesses namely Muhammad Ashfaq D.W.2 and Irfan D.W.3 in their statement made any reference with regard to the same. There is a considerable force in the findings of the learned trial Court under Issues No.6 that the appellant never claimed any set off in the written statement nor gave the particulars of any improvement allegedly affected by him and in the absence of such claim or particulars how he could seek relief for the return of any amount or payment of costs/compensation of improvement. Even no suit till the judgment of the learned trial Court as well as appellant Court or even filing of this regular second appeal, seeking return of the amount under the alleged mortgage if any, was filed and it appears that institution of subsequent suit by him referred to above, is nothing but a mala fide attempt on the part of the appellant to circumvent the effect of the decrees passed by the two Courts below in lawful exercise of jurisdiction. The moment, suit for possession was filed against him the appellant should have at once filed suit for the recovery of the amount on the basis of Exh.D.5. Since neither Exh.D.5 has been properly proved nor without such proof the same can constitute a mortgage deed, therefore, the two Courts below while passing the impugned judgments and decrees against the appellant neither acted illegally nor illegality or findings so recorded by the two Courts below suffer from any jurisdictional defect. Resultantly, this appeal fails and the same is dismissed in limine.
7. Before parting with this judgment, I would like to direct Additional Registrar (Judicial) of this Court to send copy of this judgment to Ms. Afshan Ijaz Sofi, Civil Judge, Faisalabad through the learned District and Sessions Judge, Faisalabad, who is seized of the application under section 12(2), C.P.C.
Titled "Tahir Mehmood v. Majidan Begum" and the suit for declaration, etc. Titled "Tahir Mehmood v.
Majidan Begum", with a direction to decide the question of maintainability of both these matters at limine stage after going through the contents of the application as well as plaint in the said suit and also the impugned judgments of two Courts below, after affording opportunity of hearing to the parties. Prima facie, the institution of both the above mentioned matters, after passage of impugned judgments against him, appears to be a mala fide attempt on the part of the appellant to circumvent the effect of impugned judgments and decrees, especially none of the grounds as mentioned in sect n 12(2), C.P.C. From bare perusal of the said application are attracted. Similarly, suit filed by the appellant is also hit by explanations (iv) and (v) to section 11, .C.P.C. The learned Civil Judge shall decide the above question after conscious and. Independent application of mind uninfluenced by any observation in this judgment and in case after detailed examination of both the above mentioned matters, the learned Civil Judge is satisfied that both these matters were not maintainable in the presence of impugned judgments and decrees and were filed mala fide, the appellant shall be burdened with heavy compensatory costs in terms of section 35-A read with section 95(b), C.P.C. The ultimate fate of these matters shall be informed to this Court through the learned District and Sessions Judge, Faisalabad.