ABDUL QAYYUM QURESHI Versus MANZUR AHMAD

This is a constitutional petition filed by Abdul Qayyum Qureshi, petitioner, challenging the order of the Ilaqa Magistrate Kharian, dated 23‑12‑1987, delivering possession of the disputed property to Manzoor Ahmad, respondent No.1.

2. It is the case of Abdul Qayyum Qureshi, petitioner that Manzoor Ahmad, respondent No. 1, owned a house on a plot of land measuring 1 Kanal 11 Marlas in Mohallah Qasaban, Sarai‑e‑Alamgir, Tehsil Kharian. On 3‑9‑1983, respondent No.1 took a loan of Rs.1,65,000 from the petitioner's father, Abdul Khaliq Qureshi, which was returnable after eighteen months, with the condition that if the loan was not repaid, respondent No.1 would transfer the house to the petitioner's father. It is submitted that pursuant to this agreement, possession was given to the petitioner's father. On 10‑12‑1984, the petitioner's father Abdul Khaliq Qureshi, died, whereupon respondent No.1 on 14‑12‑1984 reaffirmed the agreement of 3‑9‑1983 and stated that possession of the house had been given to Abdul Qayyum Qureshi, petitioner. On 26‑6‑1985, the petitioner gave the house on lease to Musheet‑ur‑Rehman at the rate of Rs.350 per mensem for ten years for constructing Millet School thereon. In July, 1985, a dispute arose between the petitioner and respondent No.1, whereupon on 20‑7‑1985, Rana Rehmat Ullah, the General Attorney of respondent No.1, filed an application under section 145, Cr.P.C. for possession of the disputed house. On 20‑7‑1985, the petitioner filed a suit for specific performance against respondent No.1 in respect of the agreement dated 3‑9‑1983 executed by respondent No.1 in favour of his father and agreement, dated 14‑12‑1984 executed by respondent No.1 in his favour. On the said date, the Civil Court granted status quo order. On 4‑1‑1986 the Ilaqa Magistrate, Kharian, issued an interim order attaching the house in dispute, on the application filed by respondent No.1 under section 145, Cr.P.C. The petitioner filed a revision petition against the said order, which was accepted on 6‑5‑1986 and the interim attachment was withdrawn. On 1‑7‑1986, the plaint of the suit for specific performance filed by the petitioner was rejected. On 15‑7‑1986, the Ilaqa Magistrate, Kharian, passed an ex parte order in favour of respondent No.1 accepting application filed under section 145, Cr.P.C. Instead of challenging the said order in revision, the petitioner on 24‑7‑1986 filed a suit for declaration against Rana Rehmat Ullah, General Attorney of respondent No.1, that the order dated 15‑7‑1986 was illegal, null and void, which suit was rejected under Order 7, Rule 11, C.P.C. on 30‑3‑1987. Meanwhile on 7‑8‑1986, the petitioner filed on appeal against the order of the Civil Judge, dated 1‑7‑1985 rejecting his suit. Status quo was granted by the appellate Court on the said date. However, on 16‑12‑1987 the petitioner's appeal was dismissed. Application for setting aside the said order was filed by the petitioner on 22‑12‑1987, which application is still pending. On 20‑12‑1987, Rana Rehmat Ullah, General Attorney of respondent No.1, applied to the Assistant Commissioner, Kharian, for delivery of possession of the disputed property. On 23‑12‑1987 the Ilaqa Magistrate delivered possession of the said property to respondent No.1. Being aggrieved by the last order, the petitioner filed a writ petition, which is now before me in motion.

3. Respondent No.1 was represented through his counsel at the limine stage.

4. On behalf of the petitioner, it is submitted that on 20‑12‑1987 when Rana Rehmat Ullah, General Attorney of respondent No.1, filed an application before the Assistant Commissioner, Kharian, that possession of the disputed house should be got delivered to him, the Assistant Commissioner passed the following order:‑

"Ilaqa Magistrate.

Please visit the site on 21/12. Call the parties and if there is no bar from the Civil Court, the possession should be delivered to the petitioner.

(Sd.)

20‑12‑1987"

It is submitted that without giving any notice to the petitioner, the Ilaqa Magistrate gave possession of the disputed house to respondent No.1 on 23‑12‑1987.

5. On behalf of respondent No.1 it is submitted that the two agreements, dated 3‑9‑1983 and 14‑12‑1984 purporting to have been executed by respondent No.1 in favour of Abdul Khaliq Qureshi, the petitioner's father, and Abdul Qayyum Qureshi, the petitioner, are fabricated documents. It is submitted that on 3‑9‑1983 Abdul Khaliq Qureshi, petitioner's father, was not in Pakistan as he had left for London on 5‑6‑1983. In this connection, photo copy R.9 of the Passport of Abdul Khaliq Qureshi, which has been filed by respondent No.1 with his reply, is referred to. It is further submitted that though the site of the disputed house measures 1 Kanal 11 Marlas, but in the second agreement dated 14‑12‑1984, fabricated by the petitioner, the area has been shown as 3 Kanals 3 Marlas, which was repeated in the suit for specific performance filed by the petitioner on 20‑7‑1985 in the Civil Court. It is urged that the petitioner, later realising his folly, referred to the site of the disputed house as 1 Kanal 11 Marlas in his present writ petition. It is also contended that the petitioner never challenged the order, dated 15‑7‑1986 passed by the Ilaqa Magistrate, Kharian, ordering delivery of possession of disputed house to respondent No.1 under section 145, Cr.P.C. in the Sessions Court, but filed a declaratory suit against the same on 24‑7‑1986, which was rejected on 30‑3‑1987. It is submitted that without challenging the said order, the petitioner cannot challenge the execution proceedings leading up to the delivery of possession of the disputed house to respondent No. 1.

7. I have given my anxious consideration to the arguments addressed by the learned counsel for the petitioner and respondent No.1. It is clear that the petitioner did not challenge the order of the Ilaqa Magistrate, Kharian, dated 15‑7‑1986, whereby respondent No. l's application under section 145, Cr.P.C. was accepted. The petitioner had a right of filing a revision petition before the learned Sessions Judge, Gujrat, which he did not file. Rather, he filed a suit for declaration against the order of the Ilaqa Magistrate, which was rightly rejected. Not having challenged the main order, the petitioner cannot now come up in the constitutional jurisdiction to, challenge the order of the Ilaqa Magistrate dated 23‑12‑1987 whereby possession of the disputed house was delivered to the General Attorneys of respondent No.1.

8. There being no merit in this petition, the same is dismissed in limine.

S.A./A‑385/L ?????????????????????????????????????????????????????????????????????????? Petition dismissed in limine.