This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed in the context of a' protracted litigation emanating from an ejectment petition filed by the writ petitioner for the ejectment of the predecessor-in-interest of the respondent which initially succeeded before the learned Rent Controller as well as the learned appellate Court but as a result of multiple litigation on execution petition ultimately culminated in the dismay of the petition. The rent petition was initially filed in the year 1981 and was accepted by the learned Rent Controller on 28.2.1981. The appeal filed by the predecessor-in-interest of the Respondents No, 1 to 5 against the ejectment order was also dismissed by the learned Additional District Judge on 20.7.1982.
2. This was followed by an objection petition under Order XLVII read with Section 151 CPC which was dismissed by the learned Rent Controller/Executing Court but the appeal filed against this dismissal was accepted by the learned Additional District Judge, Lahore, vide the judgment dated 7.2.1984 remanding the case for decision afresh by the learned lower Court. Thereafter issues were framed in objection petition and after its trial the learned Rent Controller by an order dated 11.11.2006 once again dismissed the objection petition. It is contended by the writ petition that pursuant to the dismissal of the objection petition she obtained the physical possession of the disputed property.
3. The matter did not end up here. The Respondents No, 1 to 5 as successors-in-interest of the original respondent then filed an application under Section 12(2) CPC on 6.3.2007. Simultaneously they also filed an application under Order XXI Rule 101 read with Section 144 CPC. The application under Section 12(2) CPC was dismissed by order dated 17.11.2007 but by an order of the even date the objection petition under Order XXI Rule 101 read with Section 144 CPC was accepted and the possession of the property was directed to be restored to Respondents No, 1 to 5.
4. The writ petitioner challenged the order dated 17.11.2007 passed on the objection petition by way of application under Section 47 CPC. The application under Section 47 CPC as such was not decided but an order dated 16.1.2008 was passed appointing a local commission for inspection of the property and for determining the controversy between the parties. The validity and propriety of both .these orders dated 17.11.2007 and 16.1.2008 passed by the learned Rent Controller have been challenged through the instant writ petition.
5. In its very inception, while contesting the ejectment petition the tenant-predecessor-in-interest of the respondents had denied his tenancy under the petitioner, the contention being that an agreement to sell had been executed by the petitioner in favour of the predecessor-in-interest of the respondents and a suit for specific performance of the agreement had also been filed in that behalf. It seems that the proceedings of the suit for specific performance continued side-by-side the ejectment petition and the litigation of execution mentioned above. The suit for specific performance was ultimately decreed and the appeal filed against it also failed. The objection petition also had its inception in the same subject. The application under Order XXI Rule 101 and Section 144 CPC was ultimately accepted because of the fact that pursuant to the decree for specific performance sale-deed had also been executed and the respondents had become owners of the property to the exclusion of the petitioner.
6. The learned counsel for the writ petition vehemently argued that the dismissal of the application filed under Section 12(2) CPC and the acceptance of the objection petition under Order XXI Rule 101 CPC run counters to each other and has given rise to the contrary judgments on the same point.
Atleast to this extent the contention is patently without any force because the subject matter of the application under Section 12(2) CPC were the circumstances which Were different from those of the objection petition. The application under Section 12(2) CPC was dismissed as the petitioner of that application (respondents herein) had failed to produce any evidence instead of availing a number of opportunities. The learned trial Court had observed that there was no element of fraud or misrepresentation in the order dated 20.9.2006 and 11.11.2006. Resultantly, the petition under Section 12(2) CPC was dismissed being devoid of any force. As against it the objection petition was allowed, as already stated, for the reason that after the execution of the sale-deed in favour of the respondents/judgment debtors the petitioner/decree-holder stood divested of the proprietary rights. The observation of the learned trial Court which is factually correct was as under: "Since at this stage the decree-holder/petitioner has no right whatsoever in the property in question whereas predecessor of the respondents/judgment debtors have a sale-deed duly registered in his favour with the order of the Court, so, he is owner of the property in question.
Hence, keeping in view the order of the Appellate Court date. 7.2.1985 and available record ejectment order dated 28.2.1981 against the successors of Noor Muhammad has become infrastructure."
It is thus obvious that the dismissal of the application under Section 12(2) CPC and acceptance of application under XXI CPC cannot be termed as destructive of each other and the impugned order cannot be set at naught merely on this ground.
7. The fact that pursuant to the decree for specific performance sale-deed has since been executed under the orders of the competent Court in favour of the objectors cannot be denied. The conclusive and the irresistible effect of this could be that the objectors/judgments debtors are the full owners of the property in question. They cannot by any sense of imagination, legal or factual, be termed as tenants under the writ petitioner, which tenancy had been denied by them at the very initial stage of the ejectment petition.
8. It is obvious from the aforesaid fact that the objectors/ judgment debtors are at present not claiming their rights on the basis of any agreement to sell. Reliance upon agreement to sell is an old and past story which completely came to an end after the decree of the suit for specific performance and the execution of the sale-deed.
9. It is true that an agreement to sell simplicitor cannot be equated to proprietary rights but where a formal and valid sale-deed has been executed and the ownership has perfectly transferred to the purchaser the rights of such purchaser are transformed from tenancy to ownership. The learned trial Court was, therefore, justified to conclude that the ejectment order dated 28.2.1981 was no more executable against the respondents/judgment debtors.
10. As already stated in the above, at one stage, consequent upon the ejectment order, the writ petitioner succeeded to get the possession of the property in question. Since in view of the acquisition of proprietary rights by the judgment debtor the writ petitioner was not entitled to get the possession from them the same could be lawfully restored to the judgment debtors by the learned Rent Controller. The Rent Controller in exercise of powers in this behalf and especially with the aid of Section 144 CPC could evolve the procedure and could make use of the relevant provisions of Order XXI Rules 100 and 101 of CPC. In the given situation he could make an enquiry and as held in the case of Haseen Ahmad Khan v. Irshad Khan through his legal heirs and another (PLD 1987 Karachi 16) could restore the possession to the judgment debtors in case they were found to have been wrongly dispossessed. It was also held in Haji Abdul Wali Khan and another v.
Muhammad Hanif and another (1991 SCMR 2457) that the procedural provisions contained in Rules 100 and 101 of Order XXI CPC were part of procedural law relating to execution of a decree and could be invoked in exercise of order passed by the learned Rent Controller.
11. In these circumstances the dismissal of the execution petition of the writ petitioner and an order for restoration of the possession to the respondents/judgment debtors was rightly passed by the learned Rent Controller. The impugned orders are unexceptionable which do not suffer from any illegality or material irregularity warranting interference in the exercise of the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The writ petition is, therefore, dismissed.