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Petition for Special Leave to Appeal No. K‑47 of 1985, decided on 15th August, 1985.
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. XXI‑‑Execution of decree‑‑Suit for possession and mesne profit decreed in favour of respondent/plaintiff against defendant who was a trespasser‑‑High Court directing executing Court to execute writ of possession as per site plan and give possession thereof to decree‑holder‑‑Perusal of record showing that no exception could be taken to impugned judgment of High Court‑‑Leave to appeal refused.
Usman Ghani Rashid, Advocate Supreme Court with Faizanul Haq Advocate‑on‑Record for the Petitioner.
Nemo for Respondents.
Date of hearing: 15th August, 1985.
‑This case is an off‑shoot of the original Suit No. 518 of 1964 filed by Diwan Kewalram, respondent No. 1 in the Civil Court at Hyderabad against Noor Muhammad, respondent No. 2, for possession of the suit‑property and mesne profits. In defence, Noor Muhammad pleaded that the property belonged to petitioner Saira Bano. In view of this plea, petitioner was joined as a co‑defendant in the suit. The trial Court decreed the suit in plaintiff's favour in respect of the entire disputed portion of the property holding that Noor Muhammad was a trespasser. The suit was dismissed against Saira Bano as it was held that she was not in possession of any portion of the property.
The defendants' appeal against the judgment and decree passed by the learned trial Judge was dismissed. They then filed a second appeal in Sind High Court. On re‑examination of the case, learned Judge of the High Court who heard the case reached the conclusion that both the defendants were trespasser. However, in paragraph 16 of the judgment learned Judge observed as follows:
"Thus, while holding that Mst. Saira Begum (defendant No.2) is also in possession of the property and she is not liable to be ejected under the decree passed in the present suit from portion in her possession as neither any relief is claimed nor any cause has been pleaded against her in the plaint, the decree of the learned lower Courts against the defendant No. l (Noor Muhammad) is maintained with the modification that he shall be evicted from the portion of the disputed property in his possession which according to his own case, vide paragraph No.7 of the written statement consists of two shops."
The defendants then filed Civil Petition for Special leave to Appeal No. K‑167 of 1981 in this Court which was however dismissed by the judgment, dated 7‑9‑1981.
Thereafter, the decree‑holder filed execution application which was resisted by petitioner Saira Bano on the ground that writ of execution cannot be issued against her. According to the decree‑holder he was entitled to possession of original two shops which were later converted into three shops.
The dispute finally came up before a learned Judge of Sind High Court on a revision application filed by petitioner and disposed of the impugned judgment, dated 11‑12‑1984 in these words:
"It seems that applicant (petitioner herein) and respondent No.2 (Noor Muhammad had filed site plans Exhs. 48 and 49 which give the dimensions of the one shop on the western side and also give length and width of the other shop. The Executing Court is directed to execute the writ of possession as per above Exhs. 48 and 49 and to give the possession thereof to the decree‑holder respondent No. 1 whether it is in the form of now three shops plus some space in applicants house or it is only in the form of three shops."
After hearing the learned counsel for the petitioner in the light of the record before us we find that no exception can be taken with the impugned judgment of the High Court. The petition is, therefore, dismissed.
M . Y . H . Petition dismissed.
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