Main case C.M. No,2 of 2013 C.M. No,3 of 2013 ' MAMOON RASHID SHEKH, J.--- The instant petition has been brought by the petitioner against the orders dated 14-3-2013 and 5-6-2013 passed by the learned Civil Judge/executing Court, Okara (respondent No,3) and the learned Additional District Judge, Okara (respondent No,2) respectively, whereby the petitioner's objection petition in the execution petition filed by respondent No,1 has been dismissed.
2. The brief facts relevant for the present purposes are to the effect that respondent No,1 purchased land measuring 2-Kanals, 15-Marlas comprising Khasra No,52/20/1 in Mauza Depalpur, Tehsil Depalpur, District Okara, through a registered sale-deed dated 12-3-1977. The said land formed part of a joint khata and was sold to respondent No,1 by one Barkat Ali the father of the present petitioner. It appears that at the time of entering the factum of sale in the Revenue Record through Mutation No,3164, attested on 20-1-1978, only 5/6th of the said land equivalent to 2-Kanals, 6- Marlas was mutated in favour of respondent No,l. It further appears that the other co-owner of the joint khata one Mst. Rashitlan Bibi the sister of the said Barkat Ali later transferred the balance 9- Marlas land in favour of the present petitioner.
3. Feeling aggrieved respondent No,1 filed a suit for possession of the balance 9-Marlas against Barkat Ali and the present petitioner. The suit as well as respondent No,1 's appeal were dismissed.
Respondent No,1 was, therefore, constrained to file a revision petition (C.R.No,1134-D of 1986 entitled 'Chaudhry Ghulam Abbas v. Barkat Ali and another') before this Court. C.R.No,1134-D of 1986 was accepted through judgment dated 24-5-1999 passed by Mr. Justice Maulvi Anwarul Haq (as he then was) and the suit of respondent No,1 was decreed in the following terms:- "...It appears that in order to present a fate accompli the respondent No,1 managed alienation of the remaining 9 marlas of land in favour of his son respondent No,2 by Mst. Rashidan Bibi. It also appears from the record that the petitioner also transferred some land in favour of his wife Mst.
Siddiqua Begum on the basis of the said transaction in his favour. In the light of the factual and legal position of the case the transaction evidenced by Exh.P1 cannot be held to be illegal or void.
The transaction has taken legal effect and was to remain in force subject to adjustment at the time of partition. It further appears from the record that Barkat Ali and his sister effected a partition of this khata without including the Khasra number sold to the petitioner. It is a matter of record that the petitioner was not a party to the said partition effected by way of a family settlement i.e, a private partition given effect by the Revenue Officer through Mutation No,2852 attested on 30-3-1981. Needless to say that the partition evidenced by this mutation is ineffective upon the rights of the petitioner as well as respondent No,2.
' The up-shot of the above discussion is that the sale evidenced by document Exh.P1 in favour of the petitioner is valid. The partition effected by means of Mutation No,2852 dated 30-3-1981 is of no legal consequence and of no effect on the rights of the petitioner as well as respondent No,2 who were neither parties to the said partition nor, in fact, land in suit was included therein. It is trite law that a partition cannot be effected without including of the joint land or property, as such, a partition is bad in law being partial partition. The petitioner as well as respondent No,2 are co- sharers to the extent of lands transferred to them by the two co-sharers i.e, Barkat Ali and Mst.
Rashidan Bibi respectively. The 9 marlas of land shall be adjustable against the other holding of Barkat All in the said khata. The matter of possession will be determined as and when the said partition of the entire joint khata takes place at the instance of any of the parties. With these observations, this civil revision is allowed. The judgments and decrees of the learned Courts below are set aside and the suit of the petitioner is decreed to this effect that he is a valid transferee of 2 kanals and 15 marlas of land in the khata measuring 65 kanals 4 marlas with reference to Register Haqdaran Zamin for the year 1975-76. The sale of 9 marlas in favour of respondent No,2 by Mst.
Rashidan Bibi shall be deemed to be from the column of ownership making him an owner in the khata to the extent of 9 marlas. The excess of 9 marlas in Khasra No,52/20/1 shall be adjustable from the other holding of Barkat Ali and Mst. Rashidan Bibi in the joint khata at the time of partition as and when apply for by any of the parties. The private partition effected by Mutation No,2852 attested on 30-3-1981 with respect to the said khata (199) shall be of no legal effect on the rights of the petitioner as well as respondent No,2 and this khata shall be subject to partition at the instance of petitioner or the respondent No,2 or Mst. Rashidan Bibi, the vendor of respondent No,2.
The matter of possession will be adjusted as and when the said partition is applied for and takes place. Parties are left to bear their own costs."
4. The learned counsel for the petitioner submits that the decree dated 24-5-1999 passed in C.R.No,1134-D of 1986 could only be executed through partition of the land as it is part of a joint khata and the warrant of possession in respect of the balance 9-Marlas cannot be executed without partition of the land in question. The learned Courts below have, therefore, erred in dismissing the petitioner's objection petition.
5. At the outset, the learned counsel for respondent No,1 calls into question the maintainability of the petition by inter alia submitting that the instant petition has been filed by concealment of material facts.
6. The learned counsel refers to the written` statement and the documents attached thereto filed by respondent No,1 in response to the instant petition and submits that the judgment dated 24-5- 1999 passed in C.R.No,134-D of 1986 was not assailed by either party, therefore, it attained finality.
Respondent No,1, therefore, filed an execution petition for execution of the decree dated 24-5-1999.
The petitioner filed an objection petition therein which was disposed of by the learned executing Court on 1-11-2000 with the following observation:- "It is crystal clear that the matter about possession is to be settled initially in the partition suit and not in the execution petition. It has been specifically ordered that the matter of possession is to be adjusted as and when the said partition is applied to and takes place. It was pointed out by the respondent side that the suit has been filed in which the decree holder has to make appearance."
7. Further submits that the partition proceedings brought by the present petitioner were firstly dismissed by the Tehsildar Depalpur, District Okara, through order dated 22-11-2000 whereafter the petitioner's suit for partition was also dismissed by the Civil Judge, Depalpur. The petitioner did not assail either finding, therefore, the said dismissal has attained finality.
8. Submits that thereafter the learned executing Court issued warrants of possession in favour of respondent No,1 through order dated 13-4-2001. The present petitioner challenged the said order through a revision petition. During the course of proceedings in the said revision petition, on, 19-5- 2001, the learned counsel for the present petitioner made a statement before the learned Additional District Judge, Okara, to the following effect:--- "I have no objection if the possession of land measuring 2-kanals, 15-marlas bearing Khasra No,52/20/I situated in Depalpur may be handed to the petitioner decree-holder."
9. As a consequence, the learned Additional District Judge, Okara, appointed the Tehsildar Depalpur as a Local Commissioner in order to demarcate the land measuring 2 Kanals, 15 Marlas bearing Khasra No,52/20/1 situated at Mauza Depalpur, District Okara, and to hand over the possession thereof to respondent No,l.
10. Further submits that the Local Commissioner gave a favourable report in favour of respondent No,1, however, the matter kept on pending as the petitioner filed repeated objection petitions.
Eventually the petitioner's objection petition was dismissed by the learned executing Court through order dated 26-6-2006 and the petitioner was directed to hand over the possession of the land in question to respondent No,1 till 21-7-2006. The petitioner's appeal against the order dated 26-6- 2006 was dismissed through the order dated 24-7-2006 by the learned Additional District Judge, Okara. The petitioner challenged the orders dated 26-6-2006 and 24-7-2006 through C.R. No,1770 of 2006. The said petition was dismissed by Mr. Justice Maulvi Anwarul Haq (as he then was) through the order dated 3-10-2007 in the following terms:- "This civil revision involves interpretation of my judgment dated 21-5-1999 (sic) in C.R.No,1134 of 1986. The dispute arose during the course of execution on objections filed by the petitioners, the learned Executing Court concluded that according to the said judgment of this Court first a partition will have to be effected and then possession of the land found to be validly purchased by the respondent is to be given. This was done vide order dated 1-11-2000. A learned Additional District Judge, Okara, allowed the first appeal filed by the respondents holding that possession is to be given and is to be retained by the respondent till such time that the Khata is partitioned.
2 Learned counsel for the petitioner contends that the learned Executing Court had correctly interpreted the judgment while learned counsel appearing for the respondent are of the opinion that the interpretation placed on the judgment by the learned Additional District Judge is correct.
3. I have gone through the said judgment as also the decree prepared by the office pursuant thereto that the facts of the case are recorded therein and correctness thereof has not been questioned by any of the learned counsel. Having examined the said judgment dated 21-5-1999
(sic) in C.R.No,1134 of 1986. 1 have no manner of doubt in my mind that the learned Additional District Judge has very correctly interpreted the judgment. As explained by me in detail therein the land was held to be lawfully sold to the respondent by Barkat Ali deceased vide registered sale deed Exh.P. 1 was to be delivered to him, while the land later sold in that particular Khasra number by Mst. Rashidan Bibi in favour of Abdul Ghani petitioner was to be adjusted to his credit in the column of ownership. The matter of retention of possession and the extent thereto was to be ultimately decided in a suit for partition. This was the true spirit of the judgment. Needless to note that the respondent had throughout been fighting for possession of the land purchased by him in the specific Khasra number. The civil revision accordingly is dismissed. No orders as to costs."
11. Further submits that the petitioner challenged the order dated 3-10-2007 before the Hon'ble Supreme Court through C.P.No,1600-L of 2007. The said C.P. Was dismissed as withdrawn through the order dated 16-3-2011. Further submits that in the meantime the execution proceedings were adjourned sine die. Upon dismissal of the petitioner's C.P. No,1600-L of 2007 the execution proceedings were revived and through order dated 4-6-2012 the learned executing Court issued warrants of possession. This order was challenged in appeal by the petitioner, however, the petitioner's appeal was dismissed by the learned Additional District Judge, Okara, through order dated 25-9-2012. The petitioner challenged the orders dated 4-6-2012 and 25-9-2012 before this Court. Respondent No,1, however, does not know the fate of those proceedings as he was away for performance of Hajj.
12. The present petitioner later on filed the objection petition which was dismissed through the impugned order dated 14-3-2013. The petitioner's revision against the order dated 14-3-2013 was dismissed through the order dated 5-6-2013 by the learned Additional District Judge, Okara.
13. Contends that the matter has been finally decided by the Hon'ble Supreme Court. The petitioner has filed repetitive objection petitions on frivolous grounds. The instant petition is liable to be dismissed forthwith as the petitioner has deliberately concealed the above mentioned facts. As the petitioner has not approached this Court with clean hands, therefore, he is not entitled to any discretionary relief.
14. When confronted with the above the learned counsel for the petitioner submits that there was no requirement for disclosing the above facts as the petitioner had approached the learned executing Court on a new point at the execution stage.
15. Submits that the proceedings before the Hon'ble Supreme Court were withdrawn on the statement of the learned counsel which was to the effect that the petitioner does not press C.P.No,1600-L of 2007 in order to avail proper remedy under the law. Contends that the present objection petition before the learned executing Court is the said remedy.
16. The learned counsel for respondent No,1 submits that the order dated 16-3-2011 whereby the Hon'ble Supreme Court dismissed as withdrawn the petitioner's C.P.No,1600-L of 2007 was to the following effect:--- "Learned counsel. Or the petitioners, after arguing this petition at some length, opted to withdraw this petition in order to avail proper remedy under the law. Accordingly, it is dismissed as having been withdrawn."
' Contends that the fresh proceedings before the learned executing Court amount to an abuse of the process of the Court. Moreover, the said proceedings are not even otherwise maintainable as the partition proceedings earlier brought by the petitioner were dismissed for non-prosecution and the petitioner did not take any steps for restoration of the same. The said dismissal has, therefore, attained finality.
17. I have considered the arguments addressed at the bar and have also gone through the record. I find force in the contention of the learned counsel for respondent No,1 that the instant petition has been filed by concealment of material facts. Indeed, the major sequence of events vis-a-vis the litigation between the parties and passing of repeated adverse orders against the petitioner have not been mentioned in the petition. The learned counsel for the petitioner has tried to justify non- disclosure by submitting that the latest objection petition filed by the petitioner before the learned executing Court is the remedy which the petitioner has availed of in furtherance of the order dated 16-3-2011 passed by the Hon'ble Supreme Court in C.P.No,1600-L of 2007. This contention of the learned counsel is without force as no ground to this effect has been taken in the petition, moreover, the petitioner has not even vaguely referred to passing of the order dated 16-3-2011 by the Hon'ble Supreme Court. Not only has the petitioner concealed the factum of filing of C.P.No,1600-L of 2007 and the dismissal thereof by way of withdrawal but he has also concealed the factum of filing of C.R.No,1770 of 2006 and the dismissal thereof through the order dated 3-10- 2007. The petitioner has also concealed the fact that his learned counsel made a statement before the learned Additional District Judge, Okara, on 19-5-2001 to the following effect:--- "1 have no objection if the possession of land measuring 2-kanals, 15-marlas bearing Khasra No,52/20/1 situated in Depalpur may be handed to the petitioner decree-holder."
18. It is a settled principle of law that the exercise of the constitutional jurisdiction of this Court is discretionary in nature. It is a A further settled principle of law that one who seeks equity must do equity. Reliance in this regard is placed on the judgments reported as "Abdur Rashid v. Pakistan and others" (1969 SCM R 141), "Waheed Azmat Sheikh v. Chairman, Habib Bank Limited and 2 others"
(2002 CLC 929) "Messrs Trade Lines through Managing Partner and others v. Bank of Punjab through General Manager and another" (2002 CLD 1776), "Lahore Development Authority through Director-General, LDA, Lahore v. Mst. Shamim Akhtar and another" (2003 M LD 1543) and "Rehmat Din and others v. Mirza Nasir Abbas and others" (2007 SCM R 1560).
19. As mentioned above, the petitioner has not even taken the trouble of mentioning any of the facts or passing of the adverse orders against him as brought to the notice of the Court by the learned counsel for respondent No,l. In view thereof, I am not inclined to exercise my discretion in favour of the petitioner.
20. As to the merits of the case one only needs to go through the judgment and decree dated 24- 5-1999 passed in C.R.No,1134-D of 1986 and the "interpretation" thereof made through the order dated 3-10-2007 passed in C.R.No,1770 of 2006. Both judgment and order (the relevant portions whereof have been quoted in Paras-3 and 10 above) have been passed by Mr. Justice Maulvi Anwarul Haq (as he then was) and are self explanatory. It is a settled principle of law that an executing Court cannot go beyond the decree. The learned Courts below have followed I this principle whilst passing the impugned orders. As already observed the contention of the learned counsel for the petitioner that the latest C objection petition has been filed by the petitioner before the learned executing Court in furtherance of the order dated 3-10-2007 passed by the Hon'ble Supreme Court in C.P.No,1600-L of 2007 is not tenable primarily for the reason that the petitioner has concealed material facts and equally importantly for not having raised this point as a ground in the petition. Indeed, the stance of the petitioner appears to be an afterthought.
21. Moreover, the learned counsel for the petitioner has been unable to point out any illegality or material irregularity having been committed by the learned Courts below whilst passing the impugned order. He has similarly been unable to point out any exercise of excess of jurisdiction by the learned Courts below or to show that the impugned orders are perverse.
22. Under the circumstances, the petition fails and is dismissed accordingly.
' There is no order as to costs.