P L D 1952 Peshawar 12 (PLP)

MUHAMMAD SHAFI, J.‑Khan Fateh Muhammad Khan, son of Shad Muhammad Khan, was an owner of 599 kanals 2 marlas of land, situated within the area of Mardan Wand Masam and Wand Baghdada. This land included khasra No. 1578, measuring 42 kanals 3 marlas, which at the spot was a garden. Khan Fateh Muhammad Khan by a deed dated 28th May, 1934, let out the whole of the above land in favour of Firm S. Jawahir Singh & Sons of Hoti Khwaja Ganj for a period of seven years, starting from kharif 1934, for a sum of Rs. 7,

000. On the expiry of seven years the whole amount of Rs. 7,000 was to be deemed to have been paid up, and the possession of the property was to be redelivered to the real owner. By a second deed dated 4th June 1935, Khan Fateh Muhammad Khan leased out the same land in favour of Muhammad Akbar Khan, who was then known as Hon'ble Sir Nawab Muhammad Akbar Khan for a period of eight years, which period was to commence from the date of taking the possession of the property on the expiry of the term of the first lease. The consideration was Rs. 9,000, which amount also was to be deemed to have been fully paid up on the expiry of the stipulated time. On 2nd June 1941, the said Muhammad Akbar Khan instituted a suit against Khan Fateh Muhammad Khan and S. Jawahir Singh & Sons for the possession of the property leased. In the alternative he claimed the refund of Rs. 9,000 principal together with interest or damages amounting to Rs. 9,720 ; total Rs. 18,

720. The case was heard by the Senior Sub‑Judge, Mardan, who by his order dated 23rd February 1942, dismissed the plaintiff's claim for the possession of the property, but granted him a decree for Rs. 12,240 with pro portionate costs against Khan Fateh Muhammad Khan alone. There was an appeal against this order, which was heard and accepted by a Bench of this Court on 27th October 1942. The decree of the learned trial Court was modified to this extent that the decree for the money was changed into that of the possession of the property claimed. It is admitted that in execution of his decree Muhammad Akbar Khan took possession of the entire land except a small plot measuring 2 khanals 14 marlas, forming part of khasra No. 1578. The total area of this khasra number was 42 kanals 3 marlas. On 3rd June 1943, the decree‑holder applied for the possession of this plot in execution of his decree. Khan Fateh Muhammad Khan, the judgment‑debtor, contested this application on the ground that on this plot he had constructed shop wroth Rs. 4,00,000, and since no decree for the building had been granted in favour of the decree‑holder, the latter was not in law entitled to get its possession. There was no mention of the shops in the two lease‑deeds as well as in the plaint or in the subsequent proceedings. There is, thus, nothing on the record to show as to when did these shops come into existence. That is, however, immaterial for the decision of this case. The learned Senior Sub‑Judge, Mardan, by his order dated 12th January 1944, rejected the judgment‑debtor's objection and ordered that the possession of the property decreed be handed over to the decree‑holder 'and that if the judgment- debtor so wished he could dismantle the building and remove the material within two months of the date when that order was communicated to him. There was an appeal against this order, which was again heard by the Bench. Their Lord ships dismissed the appeal and held that if Muhammad Ayub Khan so desired he could hand over the building to the decree‑holder because after the expiry of the lease he could be entitled to get back the land as well as the building from the decree‑holder. They further observed in the judgment that the decree had to be executed as it stood, that it was explicit that the whole of khasra No. 1578 had to be handed over to the decree‑holder and that the fact that a portion of it had buildings on it would not make any difference. It appears that by the time this order was passed. Khan Fateh Muhammad Khan had died, and he was succeeded by his sole heir Muhammad Ayub Khan, who happened to be his only son. The decree‑holder again put in an application and prayed for getting the possession of this plot. Muhammad Ayub Khan raised certain objections. The learned Senior Sub‑judge, however, held that all the objections which he had raised dad already been decided and that the execution should proceed on. Later on these execution proceedings were filed infructuous. On 8th February 1949, the decree‑holder again made an application in the Court of Senior Sub‑Judge Mardan, and prayed that the possession of 2 kanals 14 marlas of land out of khasra No. 1578 be delivered to him. This time Muhammad Ayub Khan did not raise any particular objection, but he stated that the shops were in possession of the tenants, and that he should be given time to first eject the tenants and thereafter demolish the building, and then hand over the possession of the property to the decree‑holder. He further prayed that instead of giving the possession of 2 kanals 14 marlas to the decree‑holder, the latter should be com pensated by refunding to him the proportionate amount of the lease money. The Senior Sub‑Judge, Mardan has again dismissed the objections of Muhammad Ayub Khan, and has ordered him to hand over the possession of this plot to the decree‑holder. He has, however, allowed him further time of five months within which he has to dismantle the building and remove the malba. The judgment‑debtor has come up on appeal against this order. A preliminary objection was raised by the respondent's counsel that no appeal was competent, because this order did not amount to a determination of any question between the parties, and thus it was not a decree within the meaning of section 2 (2) C. P. C. It is a well established principle of law that if an order in substance determines a question relating to execution between the decree‑holder and the judgment‑debtor, that order would amount to a decree and would be appealable under section 96 C. P. C. In the case before us it has been in substance decided by the learned Senior Sub‑Judge that the judgment‑debtor can dismantle his building, remove the malba within five months and hand over possession of the property to the decree‑holder. This is the determination of a question relating to execution between the decree‑holder and the judgment‑debtor, and, as such amounts to a decree. The appeal, therefore, is perfectly competent and the preliminary objection is overruled: The learned counsel for the judgment‑debtor has addres sed us principally on two points; (1) that the decree‑holder is only entitled to get compensation and not the possession of 2 kanals 14 marlas of land in question, and (2) that the Court which passed the decree, the execution of which is now proceeding, had no jurisdiction to pass it. As regards the first objection, our attention has been invited to condition 8 of the lease deed, wherein it was stipul ated that if the Nawab Sahib could not get possession of the full area on account of any legal or circumstantial defect then as the mortgage was a usufructuary one the period of mortgage would be extended in proportion of the area thus decreased. This increase in period was to be made in respect of the garden. It is argued that since the decree‑holder cannot get the possession of this small plot, under this condition all that he is entitled to get is the extension of the lease in the other area of the garden. We are afraid we cannot take into account this objection, because it was never raised by the judgment‑debtor either in the first two execution applications, or before the executing Court. This objection has also not been raised in the grounds of appeal. In any case, it is only when the decree‑holder is unable to get the possession of the full area on account of any legal or circumstantial defect that the condition embodied in the lease deed comes into play. It has no application where the lessor refuses to hand over the possession of any portion of the leased land to the lessee and insists on enjoying it himself. It is conceded by the learned counsel for the appellant that it is not a case in which the decree‑holder is unable to get the possession of the full area on account of any legal or circumstantial defect. We have, therefore, no hesitation in rejecting this argument. As regards the second objection, the jurisdiction of the Court which passed the decree has never been questioned so far. It is not even challenged in the grounds of appeal. The argument is that under section 77, Group Second, clause (i) of the Punjab Tenancy Act, this suit cannot be taken cogniz ance of by a Civil Court. Clause (i) runs as under :‑ "any other suit between landlord and tenant arising out of the lease or conditions on which a tenancy is held". In our view before a person is put in possession of a certain property he does not become the tenant at all. The suit, therefore, between him and the person from whom he takes the property on lease, for the recovery of possession of the property leased is not a suit by a tenant against a landlord, and is therefore cognizable by a Civil Court. In this view of the case we are supported by Shah Muhammad v. Muhammad Saeed reported in 95 I C page

855. No. other point has been argued by the learned counsel for the judgment‑debtor. The result is that seeing no substance in this appeal, we dismiss it with casts. Pleader's fee ..Rs.

30. Orders announced. A. H. Appeal dismissed.