' CH. MUHAMMAD MASOOD JAHANGIR, J. --- By filing the instant revision petition, the petitioner has assailed the judgment dated 05.12.2006 passed by the learned Addl. District Judge, Shorkot by virtue of which two appeals filed by respondents No. 1 to , 4 were accepted and the possession of the disputed shop was ordered to be restored to them.
2. The facts germane for the disposal of the instant civil revision are that the present petitioner filed an ejectment petition on 07.03.1998 before the learned Rent Controller for the eviction of Habib Ahmad, respondent No. 5/alleged tenant from the shop in dispute with the assertions that the same had been rented out to respondent No. 5, who became wilful defaulter and the possession of the disputed shop should be restored to the petitioner. Habib Ahmed, respondent No. 5/the alleged tenant by filing written reply to said ejectment petition specifically denied the relationship of landlord and tenant and also asserted that the disputed shop was owned by one Muzaffar Ali Khan, who through exchange deed (Exh.A1) transferred the same to Allah Yar, etc./respondent Nos. 1 to 4 and since 18.2.1998 they were in possession of the disputed shop. The said ejectment application was accepted by the learned Rent Controller vide judgment dated 27,3.2000 in favour of the petitioner, who filed an execution petition before the learned Executing Court and the learned Executing Court issued warrant Dakhal` for restoration of possession of the disputed property to the petitioner and the Bailiff in pursuance to said warrant Dakhal handed over the possession of the disputed property to the present petitioner. Respondents No. 1 to 4 filed an objection petition before the learned Executing Court with the assertions that the ejectment order was passed against the alleged tenant/respondent No. 5 and the Bailiff in pursuance of warrant Dakhal obtained the possession of the disputed shop from them and handed over it to the petitioner. It was also averred in the said objection petition filed by respondents No. 1 to 4 that the disputed shop had been transferred to them vide exchange deed dated 18.2.1998 and since then they were in actual possession of the disputed shop whereas the alleged tenant/respondent No. 5 was not in possession of the disputed shop being tenant of the present petitioner. The said objection petition was conceded to by the alleged tenant whereas it was contested by the petitioner with the assertions that respondents No. 1 to 4 had no concern with the disputed shop and that the alleged tenant/respondent No. 5 was in possession of the disputed property as tenant under him. The learned Trial Court captured the disputed area of facts by framing the following issues:---
(1) Whether the respondent No. 1 is not owner of the disputed property and as such respondent No. 2 is not a tenant under the respondent No. 1, whereas the petitioners are owners in possession of the disputed property vide registered exchange deed No. 67 dated 18.2.1998? CPA
(2) Whether the disputed property is not under the occupation of the respondent No. 2 and the description of the disputed property as per ejectment petition was wrong, and the ejectment petition was got accepted wrongly on the basis of mala fide and with the concealment of facts?
OPA
(3) Whether the application is time-barred and is liable to be dismissed? OPR
(4) Whether the description of the disputed property is incomplete and the application is liable to be dismissed? OPR-1
(5) Whether the respondent No. 1 is owner of the disputed property who himself constructed the shops whereas the exchange deed No. 67 dated 18.2.1998 is based on fraud, misrepresentation?
OPR
(6) Whether the application is liable to be dismissed as the same is not maintainable in its present form? OPR1
(7) Relief.
3. Both the parties adduced their evidence in pros and cons and ultimately the objection petition filed by respondents No. 1 to 4 was dismissed by the learned Executing Court vide order dated 07.3.2006 and the execution petition was thereafter ordered to be consigned. Being aggrieved, respondents No. 1 to 4/objectors filed two separate appeals, one against judgment dated 07.3.2006, whereby, objection petition filed by them was dismissed and the other against order dated 04.04.2006 by virtue of which the learned Executing Court consigned the execution petition for restitution of the possession of the disputed shop. The learned lower Appellate Court vide consolidated judgment dated 05.12.2006 accepted both the appeals, set aside the orders dated 07.3.2006 and 04.04.2006 passed by the learned Executing Court and ordered for restoration of possession of the disputed shop in favour of respondents No. 1 to 4/objectors. Being dissatisfied, the instant civil revision has been filed by the petitioner.
4. Learned counsel for the petitioner has contended that the learned Trial Court had dismissed the objection petition filed by respondents No. 1 to 4/objectors on solid grounds after appreciating the entire evidence available on record; that the possession of the petitioner over the disputed shop was admitted in page-1 of the exchange deed allegedly executed between respondents No. 1 to 4 and Muzaffar Ali Khan; that as the learned lower Appellate Court in para-16 of the impugned judgment itself admitted that it was a question of title, then filing of the objection petition was not a proper remedy for respondents No. 1 to 4/objectors and the learned lower Appellate Court, at the most, should have directed respondents No. 1 to 4/objectors to adopt the proper remedy in this regard, therefore, the findings of learned lower Appellate Court being not based on solid reasons are liable to be set aside by allowing the instant civil revision.
5. Conversely, the learned counsel for respondents has supported the impugned judgment passed by the learned lower Appellate Court and prayed for dismissal of the instant civil revision.
6. Heard. Record perused.
7. Admittedly, Muzaffar Ali Khan was the actual owner of the disputed property measuring 05 Marlas regarding which judgment and decree dated 22.6.1982 (Exh.R4) was delivered in favour of Abdul Majeed and Ali Muhammad in pursuance whereof mutation No. 1604 dated 23.9.1989 (Exh.R2) was also attested in favour of the said decree-holders to the extent of property measuring 04 Marlas, but the petitioner never made any application before the revenue hierarchy for correction of said mutation (Ex.R/2) wherein deficiency of one Marla was reflected. The revenue hierarchy afterwards implemented the said mutation in the revenue record and property measuring 04 Marlas was incorporated in the name of petitioner.
8. Later on, Muzaffar Ali Khan, the original owner of the disputed property vide exchange deed dated 13.2.1998 (Exh.A1) transferred one Marla of his commemial property in favour of respondents No. 1 to 4/objectors and also handed over the possession of the said exchanged land to respondents No. 1 to 4/objectors, which fact is vivid from the perusal of exchange deed (Exh.A1).
Within 22 days of the attestation of exchange deed (Exh.A1), the petitioner filed ejectment petition (Exh.A2) against the alleged tenant/respondent No. 5 before the learned Rent Controller on 07.3.1998. The alleged tenant/respondent No. 5 filed the contesting written reply with the specific assertions that no relationship of landlord and tenant existed between him and the petitioner and further that respondents No 1 to 4/objectors were in use and occupation of the disputed shop on the basis of exchange deed (Exh.A1). Copy of the said written reply (Exh.A3) is available on the instant file at page-70 and the preliminary objections No. 2 and 3 of the said written reply are reproduced hereunder: However, the alleged tenant/respondent No. 5 subsequently disappeared from the proceedings of the ejectment petition filed by the petitioner and ultimately the learned Rent Controller vide ex parte judgment dated 27.3.2000 (Exh.A5) accepted the said petition while answering issue No. 1 in favour of petitioner to the effect that there existed relationship of landlord and tenant between the petitioner and alleged tenant/respondent No.
5. Despite the fact that respondent No. 5/alleged tenant disclosed in his written reply (Exh.A3) that neither any relationship of landlord and tenant existed between him nor he was in occupation of the disputed shop rather respondents No. 1 to 4/objectors on the basis of exchange deed (Exh.A1) were in use and occupation of the disputed property being owners, the petitioner did not opt to move any application for impleading respondents No. 1 to 4 in his ejectment petition. The stance of respondents No. 1 to 4 is proved from the perusal of exchange deed (Exh.A1), wherein, it was clearly disclosed that the possession of the disputed property had been handed over to respondents No. 1 to 4 after taking it from the present petitioner. The said exchange deed has never been assailed by the present petitioner till today. The exchange deed being a registered document attained strong presumption of truth. It is also admitted by the learned counsel for the petitioner that during the course of execution petition, the possession of the disputed property was obtained by the Bailiff from respondents No. 1 to 4/objectors. On the other hand, admittedly respondents No. 1 to 4 were neither party in the ejectment decree nor they were impleaded in the execution petition and it was incumbent upon the petitioner to have impleaded the respondents No. 1 to 4 as party in whose absence the ejectment order having caused prejudice to respondents No. 1 to 4 would not be executable as nobody can be condemned unheard. Safe reliance can be placed upon the judgment reported as SH. SHAJAR HUSSAIN v. HAJI ABDUL MAJEED AND OTHERS (2006 SCM R 913). It is also settled principle of law that in the proceedings of execution of a decree the Executing Court while exercising jurisdiction u/s. 47, CPC can question the executability of a decree if it is satisfied that the decree is not executable against the objectors or decree has been passed in violation of any provision of law. Safe reliance can be placed upon the judgment reported as HABIB BANK LIMITED v. MST. PARVEEN QASIM JAN AND OTHERS (2014 SCM R 322). I would like to add that the scope of Section 47, CPC is very wide inasmuch as the objection petition filed by a judgment-debtor is akin to a suit and for that very reason it contains an inbuilt provision empowering the Court to treat the objection petition as a suit subject to certain conditions. The view tends to advance the object of the legislature and provide an opportunity to the objector to make a resistance by filing objection petition. The contrary view would certainly curtail the scope of Section 47, CPC and thus militates against the object and intention of the Legislature. It will also take the objector to a point where he is left with no remedy and forum of redressal of his grievance. The right to file an objection petition of the real objector is a vested right, which cannot be denied. The contention of learned counsel for the petitioner that Habib Ahmad, respondent No. 5/alleged tenant in earlier round of litigation had filed a suit for permanent injunction against the petitioner wherein he also admitted his possession over the disputed shop as tenant of the petitioner is misconceived. The said suit was filed by respondents No. 5/alleged tenant in the year 1996 whereas exchange deed was executed in favour of respondents No. 1 to 4 in the year 1998 and Habib Ahmed, the alleged tenant/respondent No. 5 had not only categorically denied the relationship of landlord and tenant rather he also asserted in his written reply to the ejectment petition that respondents No. 1 to 4/objectors were in possession of the disputed property on the basis of their ownership, which was vested to them through exchange instrument (Exh.A1). When the said situation was disclosed by respondent No. 5/the alleged tenant, then it was incumbent upon the petitioner to implead respondents No. 1 to 4 in the ejectment petition. It is not the case of the petitioner that respondents No. 1 to 4/objectors being tenants were in .Occupation of the disputed property. For the sake of arguments, if the stance of the petitioner that the transfer of the disputed property in favour of respondents No. 1 to 4 by way of exchange deed was result of fraud is considered to be true, even then by filing ejectment petition, respondents No. 1 to 4 could not be dispossessed as they were not party in the said ejectment petition and the learned lower Appellate Court has rightly passed the impugned judgment and set aside the orders passed by the learned executing Court on the valid reasons.
8. No material irregularity or illegality affecting the decision of the learned lower Appellate Court has been pointed out by the learned counsel for the petitioner.
9. Resultantly, the instant civil revision being devoid of any force is dismissed. Civil revision .