' CH. MUHAMMAD TARIQ, J.---This consolidated judgment shall dispose of Civil Revision No,644 of 1993, Civil Revision No,721 of 1993 and Writ Petition 16022 of 1993 filed by the petitioners as the common questions of fact and law are involved therein.
2. Brief facts of the case are that the respondent No,1 namely Abdul Razzaq obtained an ejectment order from the court of learned Rent Controller Lahore and tried to dispossess the petitioners from their plot. The petitioners submitted a joint application under Order XXI Rules 97 and 99, C.P.C.
Before the learned Rent Controller/executing Court Lahore asserting that they are in possession of the plot in their own right and were not claiming through the judgment-debtor and the ejectment order passed against the judgment-debtor could not be executed against them. They prayed for an investigation into their claim and dismissal of execution proceedings against them. Respondent No,1/decree holder filed a written reply to the objection petitions and asserted that ejectment order was executable against them. Keeping in view the respective pleadings, the learned executing court framed the following issues:-- "(1) Whether the objector is bona fide in possession as owner of the suit premises on his own right?
(2) Relief."
3. The petitioners produced Younis OW-1, Irshad Hussain OW-2 and himself appeared as OW-3 in support of the objection petitions. The petitioners tendered in evidence PTD Exh.OW-3/1, copy of PTD Exh.OW-3/2, Transfer Order Exh.OW-3/3, copy of Report and order Exh. OW-3/4 and asserted that they were in possession since 1963 and either the decree holder or the judgment debtor had nothing to do with B this property.
4. Respondent No,1 produced Z.A. Mihas Ex. Official of Martial Law Authority Lahore and himself appeared as RW-5. The learned executing court found that the property comprised in the PTD issued in favour of petitioners and the property of respondent were totally different properties and execution proceedings could not be made qua the petitioners' property. This was found on the basis of oral and documentary evidence adduced by the petitioners which was not rebutted by respondent No,1. Accordingly the objection petition filed by Muhammad Sharif and Shujah Butt was accepted while objection petition tiled by Shamshair Ali etc. Was dismissed. Execution application of respondent No,1 was also dismissed to the extent of the petitioners' property vide judgment dated 11-2-1990. On 17-3-1990, respondent No,1 filed an appeal against the judgment dated 11-2- 1990 before the learned Additional District Judge Lahore. Petitioners also filed appeals before the learned Additional District Judge Lahore who vide judgment dated 13-4-1993 allowed the appeal filed by Malik Abdul Razzaq (Respondent No,1) against Muhammad Sharif and other, dismissed the appeals filed by Muhammad Sharif etc. And Shamshair Ali etc. And remanded the case back to the executing court with a direction to proceed with the matter in accordance with law. Hence these petitions.
5. Learned counsel for the petitioners inter alia contends that the impugned order dated 13-4-1993 passed by learned Additional District Judge Lahore is illegal, against the law, null and void and is liable to be set aside because the petitioners are not impleaded as party in the eviction petition before the learned Rent Controller, despite the fact that the petitioners are in possession of the suit property which is fully established on the record and respondent No,1 has conceded in his statements that the petitioners are in possession of suit property since decades. Learned counsel further contend that in the circumstances, ejectment order could not be executed against the petitioners and learned first appellate court has erred while holding that the petitioners are liable to be ejected. They further argue that learned Additional District Judge has travelled beyond his jurisdiction who at the one stroke of pen has declared that the total documents of the petitioners are forged and fabricated documents, therefore, these petitions be accepted, the impugned judgment dated 13-4-1993 passed by learned Additional District Judge Lahore be set aside and the order dated 11-2-1990 passed by learned Rent Controller be restored.
6. Conversely, learned counsel for respondent No,1 has vehemently opposed these petitions and has contended that the matter has been decided up to the Hon'ble Supreme Court of Pakistan which has attained finality and the executing court has no authority/jurisdiction to ignore the judgment of the superior court which has already attained finality, therefore, these petitions be dismissed and learned executing court be directed to issue warrant dakhal in respect of the suit property.
7. Arguments advanced from all corners have been heard and record available on file has also been perused with able assistance of learned counsel for the parties.
8. Perusal of record shows that Malik Abdul Razzaq (respondent No,1) filed eviction petition in respect of the suit property bearing No,SE-14/R-32 against Muhammad Sharifpuri (respondent in eviction petition) and contended that respondent No,1 is owner of the plot measuring 18 marla 108 Sq. Feet bearing No,SE-14/R-32 situated at Empress. Road, Lahore. The matter was finally adjudicated upon and the ejectment order was passed in favour of respondent No,1 which attained finality. Respondent No,1 filed execution petition for implementing the order of the learned Rent Controller. In the meanwhile, two objection petitions were filed against him one by Muhammad Sharif etc. And the other by Shamshair Ali etc. The contention of the objectors was that they are in physical possession of the said plot since decades. The petitioners were not impleaded as a party, therefore, any order passed by learned Rent Controller is not binding upon them.
9. The learned executing court consolidated both the objection petitions and after framing of issues and recording of evidence vide order dated 11-2-1990 accepted the objection petition filed by Muhammad Sharif and Shujah Butt while the objection petition filed by Shamshair Ali etc. Was dismissed.
10. Feeling aggrieved respondent No,1 and Shamshair Ali filed appeals before Mr. Inaamullah Khan, the then learned Additional District Judge Lahore who vide judgment dated 13-4-1993 allowed, the appeal filed by Malik Abdul Razzaq (Respondent No,1) against Muhammad Sharif and other, and dismissed the appeals filed by Shamshair Ali etc. And remanded the case back to the executing court with a direction to H proceed with the matter in accordance with law.
11. I have scanned the record of all these petitions with the assistance of learned counsel for the parties minutely and have come to the conclusion that respondent No,1 filed ejectment petition against Muhammad Sharifpuri and others while Muhammad Shujah Butt son of Muhammad Sharif and Muhammad Sharif son of Mian Karam Bakhsh occupants of portion D of House No,32, Empress Road, Lahore were never impleaded as party in the ejectment petition despite the fact that respondent No,1 had the knowledge that said Shujah Butt and Muhammad Sharif are in possession of the disputed property since decades. The statement of respondent No, 1 during his cross- examination further strengthened the version of the petitioners. Relevant para of order dated 11-2- 1990 passed by learned Rent Controller, pertaining to the possession of said Shujah Butt etc., is reproduced as under:- "... The decree holder (respondent No,1) in his statement admitted that the disputed property was situated at the one side of the road while his property stood on the other side of the road, therefore, the two properties cannot be one and the same as they were admittedly separated by road. Then the decree holder further admitted that Muhammad Sharif and Shujah Butt were in possession since before 1967 although they contended that they were in possession since 1963. The ejection petition was filed in 1974 and if Muhammad Sharif and Shujah Butt were in possession of the decree holder then he would not have spared them and would have definitely impleaded them as parties which fact also goes a long way against the decree holder to show that in fact the disputed property was not a part of the property transferred to the decree holder then he had two round of litigation upto the Hon'ble Supreme Court but then there he did not implead Muhammad Sharif and Shujah Butt as party which fact also goes in favour of the objector."
' The specific question in respect of possession was put to respondent No,1 (Malik Abdul Razzaq, decree holder) who not only admitted the possession of the petitioners (Muhammad Sharif and Shujah Butt) but also conceded that they were not impleaded as parties in the eviction petition.
Therefore, the ejectment order could not be executed against the petitioners because admittedly the petitioners are neither tenant of respondent No,1 under a contract/agreement nor they are a statutory tenant, so the learned Rent Controller has no jurisdiction to pass the ejectment order against the petitioners and the only remedy available to respondent No,1 is to file a civil suit for possession and for means profits. Therefore, the ejectment order is not executable against the petitioners in the light of law laid down in case "Faqir Abdullah and others v. Government of Sindh through Secretary and others" reported as PLD 2001 SCM R 131 and in case "Ali Muhammad and another v. Muhammad Tufail and 3 others" reported as 2002 CLC 1900 wherein it has been held that where the executing court is satisfied that the decree is nullity in the eye of law or the same has been passed by the court having no jurisdiction or the decree has been passed in violation of any provision of law, the executing court can refuse to implement such a decree. Similarly, the executing court shall refuse to execute the decree if a decree is void.
12. In the instant case, when it was well in the knowledge of respondent No,1 that the petitioners are in possession of the suit property since decades but respondent No,1 did not implead the petitioners Muhammad Sharif and Shujah Butt as party, the order of Rent Controller could not be executed against them. Because an order, or a decree is L binding only against a party to the suit and not on strangers. Similar is the position regarding non-impleadment of Shamshair Ali etc. In the ejectment petition filed by respondent No 1 who have produced PTD before the learned Courts below issued in his favour which was declared bogus by the executing Court as well as by the first appellate Court after having glance over the document which findings are not sustainable under the law.
14. In the light of the above discussion, it is fully established that Shujah Butt, Muhammad Sharif and Shamshair Ali etc. Occupants of the suit property are not the tenants of respondent No,1, as such they cannot be ejected in view of the eviction order dated 11-2-1990 passed by the learned Rent Controller. As a consequence, all these petitions are ACCEPTED and the impugned judgment dated 13-4-1993 passed by the then learned Additional District Judge Lahore is set aside.