' HAMID ALI MIRZA, J.---This civil petition for leave to appeal is directed against the judgment, dated 29-7-2000 passed by a learned Judge in Chambers of Peshawar High Court, whereby Writ Petition No,813 of 2000 (Shafatullah and another v. District and Sessions Judge, Nowshera and four others) was dismissed in limine.
2. The brief facts of the case are that respondent No,3, Taj Muhammad Khan, filed Suit No,51/1 of 1998 before Civil Judge, Nowshera for declaration and injunction against respondents 4 and 5, namely Shaukatullah and Sanaullah, the brother of the petitioners. Respondents 4 and 5 filed written statement, denying the contents of the plaint. The Civil Judge framed as many as 10 issues.
The parties adduced their evidence, and after hearing the counsel for the parties, the learned Civil Judge decreed the suit in favour of the respondent No,3, Taj Muhammad Khan, with the directions to the said respondents to demolish the superstructure raised by them on the path in the site plan within 30 days failing which the construction would be demolished by the Court at their expense, to repair the damaged sewerage line of respondent No,3 and dismantle brick flooring, to remove the stones dumped by them in the path shown in the site plan, and restraining them from interfering in the property of respondent No,3 to the extent of 640/1727 shares in Khasra No,176. The petitioners preferred an appeal against the said judgment and decree, which was dismissed by the learned District Judge, Nowshera on 22-3-1999. The Civil Revision before the High Court, challenging the decision of the District Judge, was also dismissed in limine on 11-6-1999, and petition for leave to appeal before this Court, too, was dismissed, consequently the decree passed by the learned Civil Judge attained finality. Respondent No,3 filed an execution application before the executing Court wherein the petitioners filed objection, called in question the legality and propriety of the decree passed in the suit on the ground that they were not party to the suit proceedings and that they were condemned unheard. The executing Court, after hearing the parties, overruled the objections as per order, dated 21-4-2000 with following observations:-- ' "Perusal of the record would show that decree-holder Taj Muhammad Khan Khattak filed a declaratory suit against Shoukatullah and Sanaullah/brothers of present petitioners. This suit was decreed in favour of plaintiff and it was upheld by the Honourable District Judge as well as by Peshawar High Court, Peshawar and Supreme Court of Pakistan. His execution petition was stayed because of issuance of stay order in favour of judgment-debtor. On 7-4-2000 the petition of judgment-debtor was dismissed and leave to appeal was declined by the Hon'ble Supreme Court of Pakistan. The present petitioners were in the knowledge of present suit. They are the real brothers of the present judgment-debtor. Moreover an issue regarding non-joinder of parties was also framed by the trial Court which was decided in negative and it was held that the defendant Shaukatullah and Sanaullah were the only necessary and proper parties.
' "In view of the above discussion I have come to the conclusion that the present petitioners were in the knowledge of suit. They did not come to the Court in time and now when the execution proceedings were initiated against their brothers, they approached the Court in order to stay the execution proceedings. In the circumstances their petition stands dismissed."
' The petitioners challenged the order, dated 21-4-2000 passed by the executing Court in Civil Revision No,16 of 2000 before the District Judge, Nowshera, who, as per his judgment, dated 13-7- 2000, dismissed the same with following observations:-- ' "In the absence of anything to the contrary, from the grounds taken in the objection petition and in the instant revision, it appears that petitioners had filed objection petition on the sole ground that they are co-owners to the extent of 2/3 shares in the suit house, in which respect no decree was passed and that they were not party also in the litigations aforementioned and as such the aforementioned decree cannot be executed against them. It is however worth mentioning that from the brief/resume of above litigations, it is manifest that petitioners no doubt were not party to such litigations, but the relief granted to plaintiff decree-holder also does not involve question of joint ownership of the house and instead decree the execution of which is being sought by plaintiff decree-holder was granted against defendants judgments-debtor only and in this way the decree passed by the Court and maintained up to Last Court of Justice of the country is under execution against defendants judgment-debtors only. Confronted with this situation, legally and factually, I do not find any merit in this revision and the same is dismissed, leaving the parties to bear their own costs."
' The petitioners again moved the High Court in Writ Petition No,813 of 2000, which was dismissed in limine as per impugned judgment with the following observation:-- ' "The dispute between the parties was with regard to a path leading to the houses of the parties and through the decree in favour of Taj Muhammad Khan, the disputed path has not fallen to his share but both the parties have been equally declared entitled to the use of the said path. The defendants have only been restrained not to raise construction over the suit path. The assertion of the petitioners that they were not aware of the proceedings does not appeal to common sense as the petitioners are brothers of the judgment debtors/respondents and the petitioners have failed to show that the judgment-debtors were having no communication with them during such a longtime when the matter remained under consideration right from the trial Court up to the august Supreme Court of Pakistan. They, however, kept mum and waited for the result of the litigation and now with the intention of prolonging the matter without any just cause have filed the objection petition. The learned Courts below have rightly dismissed the objection of the petitioners and we while exercising our writ jurisdiction cannot interfere with the judgments of the learned Courts below in absence of any illegality or jurisdictional defect. The writ petition is, therefore, dismissed in limine alongwith C.M."
3. We have heard the learned counsel for the petitioners and perused the record. Perusal of the evidence recorded by the trial Court and the orders passed by the Courts below and the High Court would show that respondents 4 and 5 contested the proceedings raising all possible pleas of the defence before different forums right up to this Court, thereby ultimately the judgment and decree passed by the learned Civil Judge attained finality. Admittedly, the petitioners who are brothers of respondents 4 and 5 were set up mala fide to come forward at the stage of execution so as to defeat the execution of the decree which had attained finality. The litigation had been going on for the last more than two years. It would also appear that the petitioners have no adverse or conflicting interest with respondents 4 and 5. In fact, the plea of non-joinder of the necessary parties was taken before the trial. Court but the said plea was found to have no merit.
Respondent No,3/plaintiff filed he instant suit against respondents 4 and 5 when right to sue viz right to seek relief and right to prosecute accrued to the plaintiff when respondents 4 and 5 obstructed and violated the rights of the respondent/plaintiff. It would be seen from the evidence that the petitioners were not the persons who had obstructed and violated the rights of respondent No,3/plaintiff, consequently the petitioners were not joined as defendants in the suit as no relief was required to be asked from them, hence it cannot be said that the decree which has attained finality was not executable against the petitioners. In fact, the petitioners did no wrong to respondent No,3/plaintiff so as to sue them or to make them party in the suit for declaration and injunction. It may be noted that the relief of declaration of right, title and right to injunction could be asked only against the persons who would deny such right. It may be observed that it cannot be said that the petitioners were unaware of the pending proceedings which lasted for more than two years, therefore, at the time of execution of the decree they cannot be permitted to object to its execution, considering that they are estopped on the ground of their such conduct. Even otherwise, the interest of the petitioners cannot be said to have been adversely affected so far their right or title in their property is concerned, considering that the judgment-debtors have been directed not to raise construction over the said path and to remove what has been unauthorizedly raised and to compensate the decree-holder for what has been wrongfully done to him. It would also appear from the record that the petitioners did not approach the High Court with clean hands entitling them to the discretionary, equitable relief under the Constitutional jurisdiction.
4. In view of the aforesaid circumstances and reasons, we do not find any substance and merit in the submission of the learned counsel for the petitioners, therefore, leave to appeal is refused and the petition is dismissed.