1989 PLP 153 (CLC)

Ch. Hafeez Ahmad for Petitioner. Mohammad Zubair Qureshi for Respondents Nos.l to 5 Nemo for Respondents S and

7. Date of hearing: lst November, 1988. This Revision Petition is directed against order dated 28‑5‑1986 passed by Rai Muhammad Zafar Bhatti, learned Additional District Judge, Sialkot, accepting the appeal of the respondents 1 to 5 against order dated 22‑6‑1980 passed by Civil Judge, Sialkot dismissing their application seeking execution of a compromise decree dated 7‑11‑1975 on the objection petition filed by Allah Bakhsh, the father of the present petitioner.

2. The facts of this case in brief are that on 7‑I1‑1975 a decree was passed in favour of respondents 1 to 5 on the basis of compromise according to which the present petitioner in exchange of land which he got from respondents 1 to 5 surrendered the land in dispute to them. When the respondents 1 to 5 decree‑holders filed application for execution of the said decree, petitioner's father namely Allah Rakha filed an objection petition raising objection against the execution of the decree on the ground that it was he who was the owner of the land given in exchange by Nazir Ahmad to decree‑holders therefore the decree could not be executed against him qua the land in dispute as he was neither party in the suit nor was bound by the said compromise. The learned trial Court by order dated 22‑6‑1980 held that Allah Rakha was in fact the owner of the land as such Nazir Ahmed the petitioner could not surrender the same in favour of the decree‑holders, the execution petition was consequently dismissed.

3. On appeal filed by respondents 1 to 5, the learned lower appellate Court took the view that Allah Rakha having died and the present petitioner having inherited a share in the land, therefore, the decree could be now executed qua him. The principles laid down by section 43 of the Transfer of Property Act have been applied.

4. Learned counsel for the petitioner argued that Nazir Ahmad the petitioner has inherited only 2/3rd share from Allah Rakha, therefore, the decree could not be executed beyond his share. Learned counsel for the respondents 1 to 5 the decree‑holders submitted that the land which is the subject‑matter of the decree is less than the share of Nazir Ahmad in the land therefore the decree can be satisfied from his share. Even otherwise the decree can be executed against the petitioner to the extent of his share and not beyond that. This argument of learned counsel for the petitioner has no bearing upon the merits of this revision petition. Learned counsel for the petitioner then argued that the petitioner has constructed house, therefore, the decree cannot be executed qua that portion over which the construction has been raised. Learned counsel for the decree‑holders conceded that in execution of the decree the decree‑holders would seek delivery of possession to them of that portion of land only over which no construction has been raised. According to him, the petitioner has raised construction over the land which he got from the decree‑holders in exchange through compromise. In view of this statement of learned counsel for the decree‑holders the petitioner should not have any apprehension regarding execution of decree qua the house built by the petitioner. Learned counsel for the petitioner could not succeed to question the correctness of the legal position that after the death of Allah Rakha the petitioner having acquired ownership rights in the land which he surrendered to the decree- holders in exchange of land got by him from them, could be bound down to abide by the said exchange even if he was not owner of the land at the time when this exchange was made. The liability under the said settlement could be enforced against the petitioner qua his share in the land which he has acquired. The learned lower appellate Court in these circumstances cannot be held to have committed any material irregularity and illegality in exercise of its jurisdiction therefore, this revision petition is without any substance which is hereby dismissed without any order as to costs. A.A./N‑173/L Revision dismissed.