' The brief factual backgrounds as given in the instant revision is to the effect, that Mst. Naseem Akhtar wife of Muhammad Saleem respondent, has filed a suit for possession in respect of a house, boundaries whereof have been given in the heading of the plaint. In the suit, she had initially impleaded Muhammad Saleem Khan, her husband as pro forma defendant while Umar Hayat Khan son of Dilbar Khan (brother of her husband) as main defendant. The suit was pending when an application for the amendment was made in order to implead Mehr Jan and one Abdul Hayee to the list of defendants as, they have been put into possession by Umar Hayat Khan in the disputed house, of which the forcible/deceitful possession was allegedly taken by Umar Hay at Khan defendant.
2. The suit for possession was decreed in favour of respondent Mst. Naseem Akhtar, the judgment and decree of the learned trial Court was upheld up to this Court.
2-A. In para. 6 of the revision petition the inter se relationship of the plaintiff and defendant in the original suit has been given and also that of the present petitioner with the parties.
3. After the grant of decree in favour of Mst. Naseem Akhtar, she filed execution application before Civil Judge, Haripur which was ultimately placed before Senior Civil Judge, Haripur for disposal.
4. Pending execution petition, the present petitioner filed objection petition on 31-7-1988 stating therein that the disputed house, is situated in Khasra No,358 measuring 3 Kanals, 13 Marlas, in the limits of village Khaloo which is part of ' Shamilat-e-Deh' and, the petitioner being a co-owner in the Shamilat was a necessary party in the suit. In the application the possession of the disputed house by the petitioner has been asserted in his own rights. The objection petition has been filed in terms of section 47, C.P.C. Read with Order 21, Rule 99.
5. The objection petitioner has also filed an application under section 12(2), C.P.C. Before the executing Court, on 28-3-1989 challenging the validity of the decree on the plea of fraud and misrepresentation.
6. The learned trial Court on the receipt of application under section 12(2), C.P.C. Suspended the proceedings in the execution application and also on the objection petition vides order, dated 28- 3-1989 and directed that section 12(2), C.P.C. Application be adjudicated upon first. However, Muhammad Saleem Khan husband (attorney) of Mst. Naseem Akhtar filed 2/3 contempt applications against the objection petitioner inter alia on the grounds that the objection petition and the application under section 12(2), C.P.C. Are misconceived and have been filed with the only objective to delay to execution petition and also, that, as pending execution petition Umar Hayat Khan defendant in the suit has in connivance with Muhammad Yameen Khan objection-petitioner has put into possession the present petitioner. All the contempt applications were subsequently not pressed by the attorney of the respondent when he applied to the Court that if in case Umar Hayat Khan defendant takes oath, to the effect, that in respect of subject-matter of the suit property between Mst. Naseem Akhtar and Umar Hayat Khan the suit house is in possession of Umar Hayat Khan and that he has not transferred its possession to Muhammad Yameen Khan (the present petitioner) nor has given on rent to some tribal {{URDU TEXT}} ( ja) and that no school has been opened in the suit house and further that Muhammad Yameen Khan the objection petitioner has neither been given possession directly nor the possession has been given to some one else through Muhammad Yameen Khan on behalf of Umar Hayat Khan defendant. The aforesaid contents of the application which were in term of substance an oath to be administered/taken by Umar Hayat Khan, was so taken by Umar Hayat Khan on 28-6-1980 which is reproduced below: {{URDU TEXT}} ' It was in background of the aforesaid offer and acceptance between Muhammad Saleem Khan attorney of the respondent and Umar Hayat Khan that the contempt applications were not pressed, and 12(2), C.P.C. Application withdrawn.
7. The petitioner, however, has filed yet another objection petition on 17-1-1991 wherein he has taken the same objections as were taken in the first objection petition.
8. The learned counsel for the petitioner has raised the following legal points after he has given the detailed facts in respect of the suit property to which I will refer to, in the later paras of the judgment:
(a) Under Order 21 Rule 99, C.P.C. The executing Court's jurisdiction is limited inasmuch as that it has to satisfy itself 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. It was submitted that in this prospect the order of the two lower Courts is to be seen if the case of the petitioner was or was not covered by Order 21, Rule 99, C.P.C..
(b) The second legal objection raised was, that the title between the parties namely the plaintiff and defendant in the original suit has been decided in the first proceedings, and under section 43 of the Specific Relief Act which relief is discretionary, can a decree be executed against a person who was not a party before the trial Court.
(c) Whether, evidence recorded between the parties in the original suit can be read or taken as evidence against a person, who was not party to the original suit.
(d) The onus of proof is on the decree-holder to establish that the 'objector' was having the possession of suit property not on his own account, out under the judgment-debtor.
9. Further, it was argued that, if the executing Court finds that objector was in possession in his own right, then the Court shall dismiss the execution application.
10. The gist of total arguments of the learned counsel in brief is that, the respondent from day one, when she filed the original suit was in the knowledge, and if not on that day, then, since year 1979, that objector was in possession of the house, in respect of which decree has been passed and was subject-matter of suit between Nasim Akhtar and Umar Hayat, yet, when amended plaint was filed on 5-1-1980, the respondent wilfully omitted the name of petitioner (objector) to be added as defendant, for the simple reason, that Muhammad Saleem Khan attorney of Mst. Naseem Akhtar and Umar Hayat, are real brothers and they deceitfully want to grab the house of objector, after having entered into connivance with each other.
' Learned counsel, referred to para. '2' of the amended plaint wherein it is stated that defendant No,3 (Mehr Jan Khan) in connivance with defendant No,1 (Umar Hayat) has taken forcible possession of suit house since 16-5-1979.
11. Reference has been made to the statement of Muhammad Saleem Khan recorded on 16-9-1992 where he has accepted that, when Umar Hayat took forcible possession, he rented the house through Muhammad Yamin objector, and later, the possession was retained by Muhammad Yamin, it was argued that Muhammad Saleem has further accepted that Mst. Naseem Akhtar was in knowledge of the fact that Muhammad Yamin was illegally occupying the decreed house, but still, she did not make him a party meaning thereby, that Muhammad Yamin Khan was having the possession of a house which was not subject-matter of suit between Mst. Naseem Akhtar and Umar Hayat.
12. Learned counsel for the objector, repeatedly made reference to part of cross-examination of Muhammad Saleem Khan where he has stated that 'Yamin Khan is in possession of house since 1979 onward'. The thrust of this repeated reference is concentrated on the point that in such a situation Yamin Khan should have been impleaded as party to the original suit.
13. It was argued, that according to statement of Muhammad Saleem, Yamin Khan was never in possession of the house in dispute, would mean that the house in possession of Yamin Khan is other than the one for which suit was filed by Mst. Naseem Akhtar against Umar Hayat, and by giving wrong description of the boundaries in amended plaint, the decree-holder want to take possession of house of Yamin Khan which is owned by him.
14. It was next contended, that even in reply to objection petition, the respondent has not admitted the possession of Yamin Khan over the suit house.
' It was argued, that a simple and short question was to be resolved by the executing Court, which was to the effect to see if objector is claiming possession of the house in good faith and with bona fide intention. Reference was made to Articles 117, 118 and 120 of ' Qanun-e-Shahadat'.
' The crux of the whole argument was that Mst. Naseem Akhtar has accepted that Yamin Khan is co-owner in Shamilat, that he has got a house in village Khaloo, and that he has got the possession of a house, therefore, that house is not the one which is subject of execution petition.
15. Arguments were also advanced on the point that both the lower Courts have misread the evidence and have failed to determine the date from which the objector is in possession and also about the house.
' Learned counsel has relied on:
(1) Mst. Maryam etc. v. Haji Ali and others (PLD 1985 Karachi 705).
(2) Mst. Khurshid Begum etc. v. Ghulam Kubra etc. (1982 SCMR 90).
(3) Fazal Elahi Siddiqui v. Pakistan through Secretary, Establishment Division etc. (PLD 1990 SC 692).
(4) Lal Din and others v. Muhammad Ibrahim (1993 SCMR 710).
(5) Abdul Qadir v. The Presiding Officer, Punjab Labour Court No,3, Lyallpur (PLD 1975 Lahore 44).
(6) Shaukat Nawaz v. Mansab Dad (1988 SCMR 851).
(7) Saheb Khan v. Muhammad Pannah (PLD 1994 SC 162).
(8) Haji Abdul Jalil v. Anjuman Jamia Masjid Haquani (1996 MLD 818).
(9) Shehzad Ahmed v. Muhammad Hayat (PLD 1983 Lahore 234).
(10) Mst. Amina Begum v. Chairman, Karachi Development Authority and others (1993 CLC 1307).
(11) Manzoor Mai v. Abdul Aziz (1992 CLC 235).
15-A. After the arguments of the learned counsel for objector concluded, Muhammad Saleem Khan, attorney of the respondent, wanted to address the Court, to which objection was raised by the learned counsel for the objector on the ground that he has got no right of audience, however, thereafter, learned counsel candidly conceded to the right of attorney to explain his viewpoint.
16. Muhammad Saleem Khan, in his short submissions, argued that Yamin Khan's house is situated at a distance of about 200 yards from the suit house, it has got its own boundaries, and it was submitted that Yamin Khan, has taken forcible possession of the suit house through Umar Hayat and notwithstanding the fact that he has been associating with case at the stage of original suit, and was well in the knowledge of the dispute between the parties retained the possession of the suit house under judgment-debtor.
17. Replying to the question, as why Yamin Khan was not made party, if according to statement of Muhammad Saleem Khan, Yamin Khan was in possession of suit house, was that as on 28-6-1980, Umar Hayat took oath before the Court, that Yamin Khan was not having the possession of suit house, as such he was not necessary party to the suit. Secondly, because Yamin Khan has been associated with spot inspection when local commission went to the spot, not once, but twice, and it was Yamin Khan on whom instance, the suit house was measured, so much so, he has made statement to the local Commissioner in this respect, that suit house was inspected in his presence.
Reference was made to the statement recorded by local Commissioner and is on this file. It was contended by attorney of the respondent that he has purchased 3 Kanals, 7 Marlas of land through a Stamp paper from one Abdul Qadir, who is co-owner in Khasra No,358, and is named in 'Fard Jamabandi' of the year 1987-88 while, Yamin Khan the objector is not named as one of the co- owners in the Khasra number, hence he cannot claim any proprietary right in respect of any land in Khasra number 358. Next, that Yamin Khan, though has appeared as his own witness, could not produce a single document in support of his plea that he is in possession of decreed house on his own account, no map/site plan duly approved by local authorities, no electricity bill in his name, nor oral evidence as to construction has been brought on file. It was also argued that when in June, 1979 Civil Judge issued status quo order and the same was taken by bailiff of the Court to the spot it was Yamin Khan who put his signatures on the back of order in token of its acknowledgement on behalf of Umar Hayat.
18. Reference was made to report of local Commissioner, and submitted, that it is beyond comprehension that the Commissioner would have taken measurement of the house of Yamin Khan in his presence.
19. As it was also argued by learned counsel for objector that the boundaries of the house, given in amended plaint are different than the evidence as led by respondent. One Islam Khan, who appeared for objector, was termed to be untrue and unconcerned witness, as he is not local, and would not know the background of the case.
20. After hearing the sides, at sufficient length, there is no cavil to the proposition that Muhammad Saleem Khan (attorney of respondent) has purchased 3 Kanals, 7 Marlas of land from one Abdul Qadir and had constructed two houses thereon, later, one of the house was transferred in the name of respondent by Muhammad Saleem Khan in lieu of dower, that house, then became bone of contention between Mst. Naseem Akhtar respondent and Umar Hayat, brother of the respondent.
' Suit No,240/1 was filed on 17-6-1979 by Mst. Naseem Akhtar against Umar Hayat, on 5-1-1980 plaint was amended to implead one Mehr Jan Khan and Abdul Hayee as defendants, because per averment in the plaint, defendant Umar Hayat, after having taken the possession of the house of plaintiff-respondent rented out the same to Mehr Jan Khan and then to Abdul Hayee.
21. Suit was decreed in favour of plaintiff, which was upheld up to High Court. The present petitioner has filed objection petition during the execution proceeding and has based his claim by placing reliance on Order 21, Rule 99 of C.P.C. Which is reproduced below: "Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than judgment-debtor) claiming in good faith to be in possession of the property on his own account or an account of some person other than the judgment-debtor, the Court shall make an order dismissing the application."
23. The arguments of the learned counsel for the objector, that Yamin Khan is in possession of different house than the one which was subject of litigation between Mst. Naseem Akhtar and Umar Hayat is not born out from the record. The objector, in his objection petition has accepted the fact that he is in possession of disputed house'. He has admitted in his statement that, he has got only one house, in village Khaloo of which he could not give even the exact boundaries. Abdul Saleem witness on one hand claims to have been living in the said house for 1-1/2 years but could not give the details of the accommodation.
24. The legal objection, that decree is executable between the parties to the original proceeding is not applicable in this case, because by taking shelter of Order 21, Rule 99, C.P.C., the burden will shift on the objector to prove that he is bona fide possessor of the property and that, was not possessing or having it through or under judgment-debtor.
Order 21, Rule 99, C.P.C., provides a protection to person in possession, not to be dispossessed in process of execution proceeding, provided he fulfils the requirement given therein. Therefore, to establish his such 'locus standi' burden is on him to prove, so to resist the execution of the decree upheld up to High Court.
25. It is on the record that, Umar Hayat took the possession of the disputed house in 1979 and Yamin Khan has accepted that Umar Hayat was in Karachi and he has been working as his 'Kardar'.
' During course of proceeding, oath was administered to Umar Hayat as to possession of none other than Umar Hayat in the suit house, which he took, if the oath was true and none was having the possession of the house in dispute under Umar Hayat, then why the decree passed by the trial Court, upheld up to High Court, is being resisted by Yamin Khan.
26. Yamin Khan, objector has remained associated with preparation of site plan of the disputed house when local Commissioner went to the spot, he has made a statement in that process, he lives in same village, and is closely related to the parties, he admits his knowledge, of litigation going on between Mst. Naseem Akhtar and Umar Hayat still he remained mum and quiet, until warrants of possession were issued by the executing Court.
' The conduct of a person, resisting execution of decree, in term of Order 21, Rule 99, read with section 47, C.P.C., is very relevant: ' A person who remained a quiet spectator, though closely related and being associated with the proceeding in the original suit cannot be benefited by his own conduct.
27. He does not exactly know the boundaries of his house, if, at all, the house in his possession is not the suit property which is now subject of execution preceding. Order 21, Rule 99, C.P.C. Has laid much stress on 'good faith and bona fide' of the objector, all such ingredients and characteristics are totally lacking in favour of the objector. He has been making applications repeatedly to frustrate the relief granted to respondent by Trial Court and upheld up to High Court. His this conduct alone, coupled with evidence/material on record, disentitled him to protection of Order 21, Rule 99, C.P.C.
28. Learned counsel for the petitioner argued that evidence recorded between original parties cannot be taken as evidence to dislodge the defence of objector, has got no force. The executing Court, no doubt, under section 47, C.P.C. Can determine certain question of facts arising out during execution proceeding, but law is well-settled that, it cannot go beyond original judgment and decree. In this case, Yamin Khan, being a privy to entire proceeding in the original suit, cannot take any exception to the evidence or material brought on file.
' For the reason stated above, the revision is devoid of any force and the same is dismissed with costs. #EndJudgment