This appeal has been directed against the judgment and decree passed by the learned District Judge Mirpur dated 08.03.2006, through' which the appeal filed by the appellant, herein, was dismissed and order of the learned Civil Judge Mirpur dated 06.07.2005 was upheld.
Brief facts giving rise to the instant appeal are that appellant Muhammad Naseer Bashir, decree holder filed an application for execution of decree in titled Muhammad Naseer Bashir vs. Sakhi.
Muhammad & Anayat Ali & others the Court of Additional Sub-Judge Mirpur on 02.12.1997, stating therein that on 30.01.1997, a decree for, specific possession was issued in respect of the disputed land through demolishing of three rooms and a wall, in favour of the appellant/decree holder against which the appellants filed appeal after one and the other before the Supreme Court, which was rejected by the apex Court on 22.01.1991 through which the decision of the subordinate Court was maintained. It is further alleged that as the appellant has been declared entitled for handing over the specific possession of the disputed land, therefore, the possession may kindly be handed over to him in the interest of justice.
The learned trial Court, after hearing the parties in the application for execution of the decree issued a warrant for compliance the same on 27.05.2005 stating therein that a report may be submitted after executing the decree in compliance of warrant of possession and fixed the date as 26.6.2005. The said report was placed before the Court on 23.06.2005. According to the said report, neither any construction was made on Khasra No, 1 nor the same was in possession of the respondents/judgment debtors.. It is stated that the said land is in possession of Arshad Mahmood (Respondent No, 1 herein).
In the meanwhile, the other party filed objections on the above mentioned report and took the version that it is an ex-parte report and said report has been recorded against the situation prevailing at the spot. The appellant obtained status-quo by filing a revision petition, therefore, the revenue authorities remained unable to proceed further regarding the matter before them. The subordinate Court, keeping in view the report and objections thereon, heard the arguments of the learned counsel for the parties, and declared that the decree in execution could not be acted upon in the light of report of Revenue Officer and situation on spot, therefore, the same was ordered to be consigned to record without taking further proceedings.
Feeling aggrieved by the above order, the appellant filed an appeal before the learned District Judge Mirpur on 10.09.2005. The learned District Judge Mirpur, after conducting the necessary proceedings heard the parties and maintained the order passed by the learned Civil Mirpur dated 06.07.2005. Hence, the instant appeal before. this Court.
I have heard the detailed arguments advanced by the learned counsel for the parties and gone through the judgments of both the subordinates Courts as wells as the appended record alongwith and the case law referred on behalf of the learned counsel for the parties. The learned counsel for the parties repeated their versions as taken in their respective pleadings.
The learned counsel for the appellant while arguing at length argued that this is a case covered under Order XXI, Rules 97, 98 of 103 of CPC and thus both the Courts fell in error of law and prayed for setting-aside both the impugned orders of the Courts below, he has relied upon the following case law:--
1. 1991 SCM R 2457, &
2. 1996 CLC 2600.
On the other hand, the learned counsel for Respondent No, 1, Ch. Muhammad Afzal, Advocate, repudiated the version of the appellant and argued that this is a case which comes within the purview of Order XXI, Rule 99 CPC. The land pointed out at spot by the decree holder was in possession of Arshad Mahmood claiming in good faith, the owner of the same on his own account.
The concurrent findings of both the Courts below cannot be disturbed by this Court. In support of his version the learned counsel referred the following case law:--
1. PLD 1994 Peshawar 157,
2. AIR 1954 Ala-Abad,
3. 1997 SCR 358, &
4. 2001 SCR 185. '
A perusal of the record reveals that this is a case for execution of Cour decree in which the execution proceedings were stopped by the trial Court on a report of the Naib Tehsildar on warrant of possession issue by the trial Court which was forwarded through proper channel by th Naib Tehsildar to Collector Mirpur. The collector vide his letter date 21.06.2005 reported the matter to Civil Judge Mirpur that the subject land of the decree in execution is not in the possession of the judgment-debtor and the land is in the possession of another person Arshad Mahmood.
(Respondent No, 1 in the appeal) who is claiming to be in possession & ownership of the property on his own account, being owner through a gift-deed, The matter was minutely looked into and record of the case appended thereto reveals that the suit land situates in village Lehri while the plaintiff is asking for the possession of a piece of land on which building structure is existing and a boundary wall is erected which according to the revenue record falls within the limits/boundaries of village Khamball as per report of the revenue officials. Hence, the execution proceedings were consigned to office by the trial/executing Court and this order of the trial Court was upheld by the First Appellate Court.
I have gone through the provisions of law referred by the learned counsel for the parties and suffice to reproduce the Order XXI, Rule 99 of CPC which is relevant to the case: "Order XXI, Rule 99 of CPC:--Resistance or obstruction by bona fide claimant.--Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the. Court shall make an order dismissing the application."
It is necessary to mention here that this is a case of concurrent findings. No misreading or non- reading of evidence has been pointed out and the point raised regarding the certain provisions of law are not relevant to the proposition of the case in hand. Moreover, according to the order of the learned Court below, the land in dispute is in the possession of Arshad Mahmood a person other than the original Judgment-debtor. I have also gone through the contents of the report of the Naib Tehsildar where it is clearly mentioned that the property mentioned in the judgment/decree of the trial Court is other than the land which is in possession of Respondent No: 1, Arshad Mahmood on his own account.
I feel it proper to proceed with Order XXI, Rule 99. I have gone through the impugned judgment of the learned District Judge Mirpur in which ho illegality is found. The impugned order has been passed under' Order XXI, Rule 99, which is well in accordance with law and there is no reason to interfere into findings of both the Courts below. So, finding no force in this appeal, it is hereby dismissed with no order as to costs.