2024 PLP 36 (MLD)

MUHAMMAD NAEEM ANWAR, J.

Impugned herein is the judgment and order of learned Additional District Judge-II, Lakki Marwat dated 19.06.2020, whereby the appeal of petitioner was dismissed and the order of the learned executing Court/Civil Judge-III, Lakki Marwat dated 04.12.2019 was maintained.

2. Requisite facts of the case are that on 11.11.2011 civil suit No. 188/1 was filed by the respondents seeking therein a declaration to the effect that they being the legal heirs of Sani Badshah, who was the owner in the property bearing Khasra Nos. 5753, 5754 and 5760 measuring 30-Kanals and 02-Marlas of the revenue estate of Mina Khel Tehsil and District Lakki Marwat, are owners through inheritance mutation No. 8746 dated 29.12.1984 along with Muhammad Tanvir Khan defendant No.1.They alleged that respondent No.9/defendant No.1 managed to get a forged power of attorney bearing No. 4 dated 06.03.1990 from the office of Sub-Registrar Tehsil Issa Khel District Mianwali (Punjab) and on the strength of forged power of attorney a mutation No. 2439 dated 22.10.2008 was attested whereby 18-Marlas property was fraudulently transferred in favour of respondent No.1 from respondents Nos. 2 to 8 and the said Mutation was followed by mutation No. 2440 dated 22.10.2008 through which 01-Kanal and 01-Marla property was transferred in favour of respondent No.5/defendant No.1 and who in turn through sale mutation No. 3067 dated 27.04.2011 transferred 01-Kanal and 01-Marla property along with his owned property total measuring 01-Kanal 10-Marla in favour of Muhammad Asif Khan defendant No.2/respondent No.10. Thereafter, respondent No.10 through mutation No. 3200 and 3201 dated 26.05.2011 has alienated 01-Kanal and 10-Marla property in favour of respondent No.11/Mst. Nasim Bibi who through mutation Nos. 3261, 3262 and 3263 dated 16.08.2011 along with other property totally measuring 01-Kanal and 14-1/2 Marla transferred in favour of Noor Aslam Khan (petitioner). Plaintiffs have sought the declaration for cancellation of the entire transaction which was attested on the strength of forged power of attorney. Suit was contested on various legal and factual objections by the defendants. After recording of evidence, it was got decreed by the learned trial court on 22.10.2013. Two appeals bearing No. 37/13 and 53/13 were filed by Noor Aslam Khan petitioner and Muhammad Tanvir Khan respondent No.1, judgment-debtors, which were decided by the learned appellate court through consolidated judgment dated 15.10.2014 by allowing the appeals set-aside the judgment and decree remanded the case to the learned trial court with direction to decide it afresh while considering the shares of Muhammad Tanvir Khan. Learned trial court after remand, through its judgment dated 07.03.2015 decreed the suit as prayed for. The Judgment and decree of learned trial court was assailed through C.A No. 74/13 filed by petitioner and Civil Appeal No. 75/13 filed by Muhammad Tanvir Khan, respondent No.10. Both the appeals were dismissed through consolidated judgment by the learned Additional District Judge-I, Lakki Marwat on 11.05.2016. Being dissatisfied two civil revisions, i.e., C.R No.95-B/2016 and C.R No. 108-B/2016 titled "Muhammad Tanvir Khan v. Mst. Resham Jana and others" and "Noor Aslam Khan v. Mst. Resham Jana and others" respectively, were filed before this court. This Court through single judgment in C.R. No.95-B/2016 dismissed both the revision petitions on 08.03.2018. Still not contented two civil petitions for leave to appeal, i.e., Civil Petition No. 1456/2018 and Civil Petition No. 1654/2018, both the civil petitions were fixed before the Hon'ble Supreme Court and on 19.07.2018 where Syed Rafaqat Hussain Shah AOR/ASC for respondents appeared before the Court and stated that "suit was for 01-Kanal and 01-Marla only and the decree in fact is only 01-Kanal and 10-Marla and is being executed to the extent of 01- Kanal and 01-Marla" On the statement of Syed Rafaqat Hussain Shah AOR/ASC, learned counsel for respondents, both the petitions were disposed of by the Hon'ble Supreme Court of Pakistan on 19.07.2018. Execution petition was filed by the decree-holders on 23.12.2013, wherein they sought possession of 01-Kanals and 14-1/2 - Marla constructed house situated at main Adda Lakki Marwat. On 23.11.2019 an application was filed by the petitioner for clarification of warrant of possession in view of the statement of respondents' decree-holders before the apex Court and the decision thereon dated 19.07.2018. It was averred that the decree shall be executed to the extent of 01-Kanals and 01-Marla only. Learned executing court through its order dated 04.12.2019 rejected the application of the petitioner and directed that "Bailiff" of court to visit the spot along with decree-holders and police, unseal the decreed/attached house and hand-over the possession of the decreed house to the decree-holder. SHO was directed to assist the "Bailiff" as per direction of the court to maintain peace at the spot." The order was assailed by the petitioner before the learned appellate Court; however, his appeal was dismissed through impugned order dated 19.06.2020 by learned Additional District Judge-II, Lakki Marwat hence, the instant petition.

3. Learned counsel for petitioner contended that the decree-holder could get the possession of the decreed property to the extent of 01-Kanals and 01-Marla because of their statement made before the apex Court on the basis of which their petitions were disposed of. That the findings of the learned executing court by directing the "Bailiff" of the court to hand over the possession without proper measurement and determination of shares to the extent of 01-Kanal and 01-Marla is not only against the spirit of the decree but also is the result of exercise of power not so vested in it. He added that learned executing court has travelled beyond its scope as the executing court will have to execute the decree as it is.

4. Conversely special attorney for the decree-holders Miss. Shaista Qaiser (respondent No.8) contended that decree was not in respect of 01-Kanals and 01-Marla rather it was in respect of the entire shares of Sani Badshah whatever it may be, in the decreed house, and to that extent the decree was to be executed and it was rightly done by the executing court. She stated that notwithstanding the statement before the Hon'ble Supreme Court of Pakistan, learned executing court is duty bound to execute the decree in respect of the prayer as granted which is reflected in the decree-sheet. She contended that total shares of Sani Badshah in Khasra Nos. 5457 and 5460 were 01-Kanal and 01-Marla as Sani Badshah was not the owner in Khasra No. 5754 wherein the total share of Muhammad Tanvir Khan on the strength of inheritance mutation were 04-Marlas which he had transferred in favour of his sister, i.e., one of the decree holders, as such he remained no more owner in Khasra Nos. 5753 and 5760 however, he is the owner in Khasra No. 5760. She also added that when petitioner was declared as trespasser having got no share in the house how he could retain any portion of it and if he is owner in Khasra No. 5754 he will have to locate it and thereafter can get separate his shares through recovery of possession through partition.

5. I have listened the submission of learned counsel for petitioner and special attorney for respondents and with their valuable assistance not only perused the available record but record of the case being requisitioned was also perused, so that this controversy once for all be laid to rest as the parties have suffered a lot.

6. It is indisputable that Sani Badshah was the owner of 01-Kanal and 01-Marla, i.e., 21-Marlas in Khasra Nos. 5753 and 5760. He had left behind a widow, a son and seven daughters. As per the shares of inheritance, Muhammad Tanvir Khan respondent No.10 was the owner in Khasra Nos. 5753 and 5760 to the extent of 04-Marlas which were devolved upon him. It is also not disputed that Muhammad Tanvir Khan had transferred his share, i.e., 04-Marlas in favour of his sister however, it is strange enough that Sani Badshah was not the owner of any share in Khasra No. 5754 but despite that Khasra No.5754 was made disputed for which special attorney for decree-holder has given the reasons that once Muhammad Tanvir Khan had transferred his share on the basis of so-called power of attorney by including therein Khasra No. 5754 than it was amalgamated with rest of the property in which Sani Badshah was the owner that is why Khasra No. 5754 was made subject matter of the suit. At this stage I do not want to comment upon the legal aspect of the case, since it has already been decided however, it is pertinent to mention that for the purpose of execution, learned executing court will have to consider as to whether all the three Khasra numbers, i.e., 5753, 5754 and 5760 are contiguous to each other and if so in which particular Khasra number or numbers disputed house was constructed. It is because during the trial of the case a document was placed on record showing total area of the house wherein Sani Badshah was the owner, this document was not only tendered in evidence but was also got exhibited as Ex.PW-3/2, in the statement of decree-holders' witnesses, available at Page-140 of the requisitioned record, prepared by Umer Daraz "Bailiff" on 15.11.2011. Nawab Ali "Bailiff" of the Court was also directed by the trial court who proceeded to the spot and submitted his report dated 28.02.2012 whereby the width of the house was shown as 65'.5" and length as 126'.5", therefore, total area of the constructed house is 8190 square feet equal to 30.110 Marla whereas the total shares of Sani Badshah in the house were 01-Kanal and 01-Marla.

7. There is another intriguing aspect of the matter, whether the statement given before the Hon'ble Supreme Court of Pakistan is binding upon them or not? The answer is simple that once a statement was given on the basis of which the petitions were disposed of the decree-holders have restricted their rights to the extent of specific portion, i.e., 01-Kanal and 01-Marla, now neither they could claim more than that nor could retain. Irrespective of the fact that Muhammad Tanvir Khan or for that matter the petitioner or anyone else was in possession of the house and whatever may be his status, the decree-holder will get execute the decree to the extent of 01-Kanal and 01-Marla. Admittedly, this court while deciding C.R No. 95-B/2016 has held that Muhammad Tanvir Khan has got no shares in two Khasra numbers, i.e., 5753 and 5760 however, it was the duty of the learned executing court to get it determined as to whether house is constructed in both the above Khasra numbers and if it is then of course the status of Muhammad Tanvir Khan and that of present petitioner would be nothing more than that of a trespasser, but if any portion of the house is in Khasra No. 5754 than the present petitioner is a co-owner and the the decree against co-owner could only be executed by way of partition.

8. Be that as it may, if the decree is executed or was executed for recovery of possession and in such an eventuality when any portion of the house was found in Khasra No. 5754 then 01-Kanal and 01-Marla share could be transferred whereas the remaining would be retained by the possessor thereof. The decree-holders as per their statement recorded before the Hon'ble Supreme Court of Pakistan not only have restricted themselves to the extent of 01-Kanal and 01-Marla but have also provided a shield to the possessor thereof and this statement is an established fact against the plea of decree-holders in getting the possession of the entire house. How it was possible without determination of this particular aspect, i.e., the location of the house and handing over the possession is a question which was required to be decided by the learned executing court. No doubt executing court cannot go beyond the scope of decree but this does not mean that executing court will exercise its powers as per whims, wishes and desire of a person, who he may be. The legislature in their wisdom within four corners of section 47 read with Order XXI, Rule 103 of the Code of Civil Procedure, 1908 on one hand has put a embargo to file a fresh suit against the lis already decided but on the other hand has provided a vast power to the executing court not only for the decree-holders but also for the person who has got any right in the subject matter of the decreed property. The verbatim of section 47 of the Code of Civil Procedure, 1908 for convenience is reproduced as under: - "

47. Questions to be determined by the Court executing decree. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court-fees. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation. For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit."

9. Whenever, any question regarding discharge, execution and satisfaction of a decree before the learned executing court shall be decided within the scope of Section 47 ibid. This does not mean that executing court is going beyond the scope of decree. While hearing the parties, I have also directed them to come up along with "Aks Shajra Kishtiwar or with the copy of Masavi showing the contiguity of the property, i.e., the ownership of Sani Badshah and the ownership of Muhammad Tanvir Khan in Khasra No. 5754 but despite direction no "Aks" was provided and the decree-holders could not justify either contiguity of all these three Khasra numbers situated at far distance from each other. For this purpose I have also requisitioned the record of civil suit No. 188/1N and 188/1 but no such record is available for proper determination in order to avoid further agonies of the parties, therefore, without going into rest of the legal and factual aspects I am not persuaded to maintain the impugned orders as of both the learned courts below, committed an illegality, without just determining the specific location of the house, the determination of the share of decree holder, i.e., 01-Kanals and 01-Marla, the co-sharership of Muhammad Tanvir Khan in Khasra No. 5754, and to determine as to whether the petitioner is co-sharer in the decreed house to the extent of Khasra No. 5754, which he has purchased from Muhammad Tanveer Khan, therefore, it is inevitable to set-aside both the orders of the learned courts below and to remand the case to the learned executing court with the direction to determine the proper location of the house i.e., the contiguity of Khasra Nos. 5754, 5753 and 5760 and if so than to determine whether any portion of the house is in Khasra No. 5754 and in such an eventuality the provision of Order XXI, Rule 35, Sub-Rule (2) of the Code of Civil Procedure, 1908 shall obviously come into play. Similarly, if the house is constructed in Khasra Nos. 5753 and 5760 then the decree holder shall retain the possession of 1-Kanal 1-marla and the rest of the possession shall be restored to the person from whom it was taken in consonance with Order XXI, rules 100 and 101, C.P.C. in juxtaposition with the statement of decree holders recorded before Hon'ble Supreme Court. These are the questions which are to be dealt by the learned executing court within the purview of section 47 of the Code of Civil Procedure, 1908.

10. For the reasons discussed above, the instant petition stands disposed of accordingly. MQ/66/P Case remanded.