2010 PLP 789 (CLC)

SH. AZMAT SAEED, J.

This writ Petition is directed against the order dated 29-4-2004 through which the learned Additional District Judge Shakargarh by accepting the Revision Petition of the respondents granted them symbolic possession of the disputed land.

2. Brief facts for the adjudication of the lis at hand are that the property in dispute was originally owned by predecessor of both the parties, upon whose death, mutation of inheritance 1039 was sanctioned on 15-9-1956 in favour of the legal heirs followed by a mutation of gift No.1040 sanctioned on 19-5-1957 affecting the gift in favour of the predecessor in interest of the present petitioners as well as Chirag Din predecessor in interest of respondents 6 to 16 and Siraj Din predecessor -in-interest of respondents 17 to 21 purportedly affected by female legal heirs including the predecessor in interest of respondents Nos. 2 and 3 i.e. Nawab Bibi who filed civil suit challenging the mutation of gift No.1040 claiming her share in the property to the extent of 1/8th share therein equivalent to 25 Kanal of land. Decree for possession was also prayed for. Suit was contested and eventually dismissed. Being aggrieved, Nawab Bibi filed an appeal which was accepted vide the appellate judgment and decree dated 14-5-2002 which was unsuccessfully challenged before this Court and the apex Court, whereafter, the execution proceedings were initiated for the execution of the appellate judgment and decree dated 14-5-2002. Said petition was dismissed. Respondents 2 and 3 being the successor in interest of Nawab Bibi challenged the same in revision petition which was accepted by the learned Judge vide order impugned dated 29-4-2004 inter alia granting symbolic possession of the entire land.

3. On behalf of the petitioners, it is being argued that Nawab Bibi was only entitled to 1/8th share of the land, hence, symbolic possession of the entire land could not be granted. Adds that the gift in respect of donors other than Nawab Bibi had not been disturbed by the appellate judgment and decree in execution.

4. Counsel for the parties heard. Record perused.

5. The contention of the learned counsel for the petitioner that decree is restricted only to 25 Kanal is misconceived. The part of the decree sheet referred to by the learned counsel merely denotes nature of the claim/suit and not the order of the Court. The order of the Court as stated in the decree reads as follows:

"Appeal is hereby accepted as per observation made in the judgment"

6. The operative part of the judgment dated 14-5-2002 reflecting at paragraph 7 is as under:-- "Concluding both the issues in favour of the plaintiff, the judgment and decree of the lower Court are hereby set aside as the appeal is accepted but any how for physical/actual possession, she is to follow as per required by law enforced for the time being. The disputed mutation 1040 is declared void and the original mutation for inheritance 1039 is restored for being in operation."

7. Thus it is clear and obvious that mutation of gift in favour of predecessor in interest of the petitioners was declared void and mutation of inheritance No.1039 was restored, as a consequence whereof, all the parties hereto became the joint co-owners in respect of the entire property of 200 Kanal. The first Appellate Court has correctly granted symbolic possession to the respondents in execution of the said decree strictly in accordance with Order XXI, rule, 35(2), C.P.C. In this view of the matter, finding of the first Appellate Court being unexceptionable is not open to any interference by this Court. Resultantly, I find no merit in this petition and dismiss the same accordingly. M.U.Y./M-436/L Petition dismissed.