' SYED JAMSHED ALI, J.-- This judgment will dispose of E.F.A. No, 441 of 1998 and E.F.A. No,413 of 1998, as the questions of law and fact raised in both these cases are common.
2. Relevant facts, briefly stated, are that the Bank of Oman, respondent No,1, obtained decree, dated 16-12-1992 in the sum of Rs,4,24,148.56 against respondents 2 to 5. Respondent No,5, is a guarantor, who had mortgaged Plot No,35-M, Gulberg-III, Lahore, in favour of the decree-holder Bank, as security for the finances advanced to respondent No,2. In execution of the aforesaid decree, Property No, 35-M, Gulberg-III, Lahore was attached. Muhammad Fayaz-ud-Din, appellant in E.F.A.
No,441 of 1998 and Mian Muhammad Usman, appellant in E.F.A. No, 413 of 1998, filed separate objection petitions which were dismissed by the learned Judge, Banking Court No,II, Lahore, vide order, dated 29-9-1998. He relied on the PTD in favour of Muhammad Yousaf on the basis of which sale-deed was executed by the said Muhammad Yousaf in favour of Muhammad Shall, respondent No,5 on 21-3-1981.
3. The learned counsel for the appellant in E.F.A. No,413 of 1998 submits that Feroze Din, (father of Muhammad Fayaz-udDin, appellant in E.F.A. No,441 of 1998), Zahoor Din and Muhammad Amin owned a considerable landed property in Mauza Bhabra, District Lahore. It was acquired for the Area Development Scheme (known as Gulberg-III Scheme) by the then Lahore Improvement Scheme and in lieu of the acquired land, a number of plots were exempted in favour of Zahoor Din, Muhammad Amin and Feroze Din aforesaid, which included Plot No,35-M, Gulberg-III, Lahore. He further submits that on the death of Feroze Din, the disputed property devolved upon Fayaz-ud-Din, appellant in E.F.A. No,441 of 1998, and his three sisters. There has been litigation between the successors-ininterest of Feroze Din which was adjudicated by the learned Civil Judge, Lahore, vide judgment and decree dated 25-1-1988 and it was held that all the legal heirs of Feroze Din were entitled to the disputed property. As far as Muhammad Usman, appellant in E.F.A. No,413 of 1998 is concerned, he is a vendee of an area measuring 2 Kanals and 24 Sq. Ft. From Mst. Mehmooda Begum, daughter of Feroze Din, and the legal heirs of Masooda Begum, another deceased daughter of Feroze Din, through two separate sale-deeds, dated 6-10-1991 and 30-4-1992.
4. It was on 29-1-1988 that respondent No,5 had executed a registered mortgage by deposit of title deeds i.e. The sale-deed in his favour executed by Muhammad Yousaf, with regard to Khasra No,170/1 of village Bhabrah. According to the sale-deed, the aforesaid Khasra number was transferred to Muhammad Yousaf and a PTD was issued in his favour on 30-12-1965. The learned counsel for the appellant further submits that not only in the sale-deed but also in the non- encumbrance certficate, the property purchased by Muhammad Shafi was described as Khasra No,170/1. However, at the time of creating equitable mortgage, Survey No,SXXA-35/M-III Lahore was also mentioned in addition to the aforesaid Khasra number which, according to the learned counsel for the two appellants, is owned by them. The learned counsel for the appellants also referred to the lay out plan of the Scheme, according to which, out of Khasra No:170, Plots Nos.55 and 56 are shown to have been carved out while Plot No,35-M, lies at a distance from Khasra No,170.
5. The learned counsel for the decree-holder Bank, however, submits that according to the agreement with Lahore Improvement Trust, being relied upon by the two appellants, no part of Khasra No,170 was acquired while on the basis of the sale-deed in favour of Muhammad Shafi of Khasra No,170/1 an equitable mortgage was created by him, and, therefore, the decree-holder Bank is fully within its rights to execute the decree against Khasra No,170/1.
6. The submissions made by the learned counsel for the parties have been considered. What was required to be determined, in this case, was as to whether Plot No,35-M, Gulberg-III, Lahore was a part of Khasra No,170/1, which was transferred on PTD in favour of Muhammad Yousaf, and which was sold by him in favour of Muhammad Shafi, respondent No,5. No such enquiry was made by the learned Judge, Banking Court and he found, on the basis of the PTD alone, that the objectors had no locus standi to file objection petitions under Order XXI, rule 58, C.P.C. It has also been assumed, without any basis that Muhammad Yousaf was allotted Plot No,35-M on 30-12-1965, although it was yet to be established by a proper enquiry as to whether the property allotted on the P' in favour of Muhammad Yousaf i.e. Khasra No,170/1 was, in fact, Plot No,35-M, Gulberg-III, Lahore.
7. For what has been stated above, both the appeals are allowed. The impugned order dated 29-9- 2003 passed by the learned Judge, Banking Court, Lahore, is set aside and both the cases are remanded to the learned Judge, Banking Court No,II, Lahore, for holding a proper enquiry as to the conflicting claims of the parties and thereafter to pass a fresh order on the objection petitions filed by the two appellants, in accordance with law. No order as to the cots.