' FAZAL ILAHI KHAN, J.---Petitioner seeks leave to appeal against the judgment of Division Bench of Peshawar High Court, Peshawar, dated 30th May, 1994 in Writ Petition No,1120 of 1992.
2. Muhammad Ibrahim respondent No, 1 through receipts dated 9-6-1974, 10-8-1973 and 244-1979 received a sum of Rs,16,454 on the ground that he will mortgage a piece of land (Sholgari) situated at Haibtgram Malakand Agency to the petitioner. It was further agreed that the mortgagor (Muhammad Ibrahim) would cultivate the land on payment of Rs,700 per year as Ijara. His failure to pay the required `Ijara' amount compelled the petitioner to file a suit for recovery of 'tiara' amount and further prayed for the respondent's ejectment from the land. This suit was filed on *8-1979 before the A.PA. Malakand. During pendency of the suit on 6-11-1978 a compromise was effected and it was agreed that respondent will pay Rs,5,754 to the petitioner before 30-11-1979 failing which the possession will be delivered to the petitioner. Respondent did not pay the amount within the stipulated period whereafter the Assistant Commissioner vide his order dated 11-1-1981 found that the compromise had no validity and the case was revived for decision on merits after recording the evidence of the parties. This order was challenged in appeal before the Collector/Political Agent, Malakand but the appeal was dismissed on 4-3-1981. Thereafter, revision petition was filed before the . Additional Commissionerwhich was accepted by setting aside the orders dated 11-1- 1981 and 4-3-1981 and it was directed that Assistant Collector 1st Grade should summon the appellant and give him a notice of 10 days to deposit the amount of Rs,5,754 plus Rs,1,000 as agreed in the statement, dated 2nd December, 1979, failing which the land in dispute will stand transferred to the petitioner. This order was passed on 13-1-1982. That against judgment and order the petitioner filed a revision petition before the Additional Home Secretary but the same was dismissed. The petitioner thereafter filed Writ Petition No,278 of 1983 which was dismissed in limine on 25-9-1984.
3. In order to comply with the order dated 13-1-1982 of the learned Additional Commissioner, Malakand Division, Assistant Commissioner summoned the parties with a notice to the F4'.
Spondent Muhammad Ibrahim to deposit the amount of Rs,5,754 plus Rs,1,000 within ten days. The respondent, however, offered Rs,3,000, therefore, for non-compliance disputed land was transferred to the' petitioner vide order dated 20-4-1985. An application for execution of this order was made and the Tehsildar was deputed who delivered possession to the petitioner on 8-11-1986.
In the meantime the judgment-debtor (respondent) filed a suit for recovery of produce against Qamar Gul and others in respect of the disputed land which was surrendered to the petitioner. The defendant in that case contested the suit while respondent No,1 submitted an application for requisitioning the case file regarding the execution proceedings pending in the Court of Tehsildar.
The file was requisitioned whereafter the learned Assistant Collector on 27-2-1989 passed the following order:-- "I have gone through the file. As the judgment-debtor is ready to pay the sum of Rs,5,754 plus Rs,1,000 according to the order of this Court dated 20-4-1983 which was recovered from him today in the Court and was handed over to the special attorney of the decree-holder. A receipt to this effect was obtained from attorney of decree-holder who received and accepted the amount. So- far the application for execution of order, dated 20th April, 1985 is concerned, the decree-holder has asked for excessive amount from the judgment-debtor. As I have already mentioned that the order dated 20-4-1985 is for recovery of Rs,6,754, only hence the recovery of excessive amount is unwarranted.
' The order of Tehsildar Batkhela dated 8-11-1986 vide which the land of judgment-debtor was attached in favour of the decree-holder has already been set aside. Hence the decree has got no concern with any immovable property of judgment-debtor. The land shown in the sketch prepared by P.C. Poll Chowki dated 30-9-1986 which was handed over to the decree-holder by Tehsildar Batkhela vide his order dated 8-11-1986 is given back to the judgment-debtor Muhammad Ibrahim.
Case file be consigned to record room after due completion."
4. The above order was challenged to appeal before the Political Agent, Malakand which was accepted on 25-9-1991 and an order for compliance of the order of Additional Commissioner was passed. Respondent No,1 then challenged the said order in revision before the Board of Revenue which was returned to the said respondent on the ground that Board of Revenue Act, 1957 had not been extended to Malakand Agency. Respondent, therefore, filed revision petition before the Additional Commissioner, Malakand Agency which was accepted on 24-9-1992 with the result that the order dated 27-2-1989 was restored. The aforementioned order of the Additional Commissioner was challenged through Writ Petition No,1120 of 1992 which was dismissed vide judgment dated 30- 5-1994 against which leave to appeal is sought for.
5. After hearing the learned counsel for the petitioner it is painful to note that the parties are locked up in litigation since the year 1979 over a petty amount of Rs,6,754, as observed by the High Court.
In the background of the facts of the case as given above the matter had finally concluded by order, dated 20th April, 1985 but this was reopened at the behest of the parties by order dated 27- 2-1989. The order dated 20-4-1985 was passed on failure of the respondent to pay a sum of Rs,6,754 and when during the execution proceedings the said amount was paid it was duly received without any objection on behalf of the petitioner regarding which a receipt was executed and placed on file and in pursuance thereof possession restored to the respondent. Contention of the learned counsel for the petitioner, now raised before us, that petitioner neither received the amount nor did authorize any person as special attorney to receive such amount on his behalf has been considered by the learned High Court in its judgment. The learned High Court, from the record, observed that the amount was received by Fazal Ahmed special attorney of the petitioner and it was not only attested by A.PA. Batkhela but also by Mr. Faridullah Khan, Advocate. The question; as to whether Fazal Ahmad was special attorney to the petitioner, the fact is that the amount was paid to him before the A.PA. And whether it was paid to the petitioner or not, are the questions, which could not be gone into, as rightly observed by the learned High Court, in writ jurisdiction. We, therefore, find no infirmity in the judgment of the learned High Court refusing to interfere with the orders of the forums below in Constitutional jurisdiction. Leave to appeal is, therefore, refused.
' If the petitioner is defrauded of the amount he can seek remedy in proper forum, if so advised.