2007 PLP 311 (YLR)

SH. HAKIM ALI, J.

Facts necessary and relevant for the decision and disposal of this criminal original petition are that Syed Muhammad Baqir Shah and others, had filed a suit against Ghulam Sarwar and others, in the Civil Court at Ahmadpur East. The basis of prayer in the suit for grant of declaratory decree along with possession, with regard to lands measuring 169 Kanals, 8 Marlas, situated in Mauza Kotla Baqir Shah, Tehsil Ahmadpur East, was the claim of alleged ownership of plaintiffs. It was also prayed that defendants, Ghulam Sarwar and others who were holding possession be declared as tenants-at-will of the plaintiffs, upon the lands in dispute and their denial of ownership of the plaintiffs was illegal and that Mutation No.177, dated 4-11-1940 relating to "Adhlapi" contract was a forged and fictitious documents, on the basis of which defendants were not entitled to alienate the lands in dispute to anyone. As a consequential relief, prayer for recovery of possession and issuance of permanent injunction restraining alienation by defendants, was also sought in the aforesaid plaint. The suit was dismissed on 25-4-1972. Ultimately, Civil Revision No.152-1975/BWP filed by the plaintiffs in this Court had met with same fate on 17-11-2000, against which C.P.L.A. No.227-L/2001 was stated to be pending before the Hon'ble Supreme Court.

2. A Writ Petition No.688-2003/BWP was filed by one of those defendants, namely, Ghulam Nabi son of Ghulam Sarwar (defendant No.1 in the suit) against Tehsildar, Ahmadpur East with the prayer that respondent No.1 be directed to implement the judgment, dated 17-11-2000, passed in C.R. No.152-1975/BWP in the Revenue Record. On 31-10-2005, Tehsildar, Ahmadpur East was directed to, look into the matter and pass an appropriate legal order strictly in accordance with law. In fact, through this method, the petitioner tried to get the entries of old Mutation No.177, dated 4-1-1940 incorporated into the Revenue Record from Naib Tehsildar, the Revenue Officer of the area concerned. As Naib Tehsildar, did not accept the prayer of Ghulam Nabi, petitioner, so the instant petition of criminal original was filed. Report and reply has been called for from respondents, which has been submitted and perused.

3. Learned counsel submits that respondent/Naib Tehsildar/Revenue Officer, Ahmadpur East was bound to correct the entries of Mutation No.177, dated 4-1-1940 into the Revenue Record on the basis of judgment and decree, dated 25-11-1977 of learned Civil Court, although that was a decree of dismissal, because that decree was upheld on 17-11-2000 in C.R. No.152-1975/BWP (Syed Muhammad Baqir Shah and others v. Ghulam Sarwar and others). As the revenue officer/respondent has refused to implement and incorporate entries of the aforementioned Mutation into Revenue Record, therefore, he has committed contempt of Court, and that proceedings of contempt may be initiated against him.

4. Explaining more the case of petition, it is submitted by the learned counsel that in the judgment of learned Civil Judge, Issue No.2 was framed with regard to "Adhlapi" contract and Mutation No.177, dated 4-1-1940, which was decided in favour of Ghulam Sarwar and other defendants, it was held a valid document. Therefore, the Revenue Officer was bound to incorporate the entries of aforementioned Mutation into the Revenue Record. The refusal could not be made by him, because it was not necessary that decree must have been passed in favour of defendants in the suit. Even the dismissal of the suit being a decree under section 2(2) of the C.P.C., Revenue Officer was liable to correct the Revenue Record. Decree which has not been passed in favour of defendants even can be executed. He has placed reliance on PLD 1961 (W.P.) Peshawar 5 (Mst. Rehmat Sahiba v. Said Akbar Shah and others). Revenue Officer was under obligation to correct and bring up to date the Revenue Record in conformity with the binding adjudications of Civil Courts. The learned counsel has also referred to 1992 CLC 125 (Khushi Muhammad and others v. Member, Board of Revenue and others). He has also referred to KLR 1985 Civil Cases 607 (Muhammad Sharif v. Bir Wali and others) to support his submissions.

5. Heard and record perused.

6. On 31-10-2005, this Court had passed an order in Writ Petition No.688-2003/BWP (Ghulam Nabi v. Tehsildar) to Revenue Officer, to look into the matter and to pass an appropriate legal order strictly in accordance with judgments. In the report submitted by respondent, it has been entered by respondent that the suit was filed by Syed Baqir Shah and others, claiming ownership of the lands in dispute but that the suit was dismissed. No decree in favour of Ghulam Nabi and others was passed, as they were not plaintiffs in the suit. With regard to Mutation No.177, it was submitted that without any decree and decision, the Revenue Record could not be corrected, because Mutation No.177 was cancelled upon the order of SDM/Collector, Tehsil Ahmadpur East, through an order, dated 5-4-1968. Therefore, without the decree in favour of Ghulam Nabi, the entries of Revenue Record could not be changed.

7. With this reply, question for resolution arisen in this petition is as to whether the order, dated 31-10-2005 passed by this Court was complied with or not, and that Naib Tehsildar was bound to incorporate entries of Mutation No.177, dated 4-1-1940 in revenue record or not? As Naib Tehsildar has passed a legal order of refusal to enter the entries of Mutation in dispute, the compliance of the order passed by this Court, therefore, this criminal original cannot be processed further.

8. As regards the correctness of the view expressed in the report of Naib Tehsildar, dated 10-12-2005 that no decree was passed in favour of Ghulam Sarwar and others, defendants, therefore, the entries could not be made and corrected in the Revenue Record in favour of Ghulam Sarwar, to my mind, could not be considered to be an incorrect approach of law on the strength of decision reported in KLR 1985 Civil Cases 607 (Muhammad Sharif v. Bir Wali and others). The suit filed by Syed Muhammad Baqir Shah and others was dismissed, therefore, dismissal of that suit had not conferred any right through decree upon Ghulam Sarwar and others, defendants, to bind down the Revenue Authorities to consider the decree of dismissal as enforceable and executable, document, without passing of any order or decree of Court in favour of defendants. The dismissal decree had only declared the claim of Syed Muhammad Baqir Shah and others, with regard to the lands in dispute, unsustainable, not factually and legally justified. It had not conferred any right/title upon Ghulam Sarwar to get the Revenue Record corrected through decree of dismissal. Unless there was a specific order/decree conferring rights upon defendants in a suit granting or declaring their right or title in the property, the decree which had dismissed the suit of plaintiffs could not be used and executed in favour of defendants. No decree was passed in favour of defendants. The disputed decree had only dismissed the suit. It had not declared the right/title of defendants in the land in dispute. It may be pointed out here that in law, decrees are executable and not the findings contained in judgments, unless some rights/title, enforceable in law specifically and clearly are held and declared through enforceable order or decree in favour of any part to the suit. Viewed from this angle, the findings recorded under issues in a judgment are not by themselves executable orders. These are rendered to reach to the final conclusion for the decision of a given case and to pass a judgment. These findings may become res judicata in an appropriate future case but cannot by themselves are substitute for the enforceable judgments and decrees. The learned counsel has perhaps thought the findings recorded upon issues in favour of defendants in the judgment, to be enforceable order/decree to the executable through Revenue Officers which cannot be considered a correct approach of law to the subject-matter in dispute. It may be kept in view that it is not the judgment but the decree which is to be executed, and in the present case, no decree in favour of defendants-petitioners was passed. Therefore, the defendants cannot compel Revenue Officials to sanction Mutation or to incorporate or correct the entries of Revenue Record upon the strength of findings in a judgment. The defendants have to proceed to get the Revenue Record entries altered/changed through filing of legal proceedings, to get those changed in a legal manner and through the provisions of law, as are permitted by law. Ghulam Sarwar and others, if consider that Mutation No.177 has granted them right of ownership in the lands in dispute, in that event, they have to file the suit, to get the entries of Revenue Record changed or corrected through the passing of a decree, to be obtained by filing of a suit for grant of mandatory injunction with declaration or to approach the higher officers in revenue hierarchy, in accordance with the provisions of Land Revenue Act, if so advised and permitted by law. On the basis of decree of dismissal, which had not approved the claim of Syed Muhammad Baqir Shah and others, Ghulam Sarwar could not obtain any benefit and get entries of Revenue Record corrected in his favour. So, the instant criminal original is dismissed. H.B.T./G-51/L???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.