P L D 2009 Quetta 13 (PLP)

AKHTAR ZAMAN MALGHANI, J.

This revision petition is directed against order dated 10-5-2003 passed by Qazi, Kharan whereby application filed by petitioner for review and recalling of order dated 2-2-2002 was dismissed.

2. Briefly stated, facts of case are that petitioner instituted a suit for specific performance in Court of Qazi against respondents which plaint was rejected by him vide order dated 23-8-1999 under Order-VII, Rule-11, C.P.C. which order was assailed by him by way of filing appeal before Majlis-e-Shoora Chagai/Kharan at Nushki who allowed the appeal vide judgment and decree dated 10-3-2000 and the matter was remanded to Qazi Court whereafter again learned Qazi dismissed the suit vide judgement and decree dated 24-6-2006. Appeal filed by petitioner against said judgment and decree was also dismissed by Majlis-e-Shoora. It appears from record that thereafter a civil miscellaneous application was filed by Haji Qadir Eukhsh (respondent No.3) for directing Naib Tehsildar and Patwari to enter the property in his name and Qazi directed accordingly. On coming to know about such order petitioner moved an application for review and recalling of order dated 2-2-2002 which application was dismissed vide impugned order.

3. I have heard learned counsel for petitioner as well as learned counsel for respondents. Learned counsel for petitioner vehemently contended that suit of petitioner filed for specific performance of agreement dated 6-2-1994 was dismissed without any adjudication or determining rights of parties, as such; it was not an executable decree but the Qazi in excess of jurisdiction directed for transfer of mutation entries in the name of Haji Qadir Bukhsh in respect of property bearing Khewet No.2, Khatooni No.2 which was even otherwise not subject matter of suit. He further argued that learned Qazi in the impugned judgment admitted that property which was transferred in the name of Haji Qadir Bukhsh was not subject matter but refused to interfere on the ground that Tehsildar Washuk transferred said property in excess of his powers for which petitioner should seek other remedies provided under law. On the other hand learned counsel for respondents vehemently contended that dismissal of suit was also a decree and executable as petitioner failed to prove his right over property in dispute, therefore, learned Qazi rightly directed for carrying out mutation entries in favour of respondents.

4. I have carefully considered the contentions put forth by parties' learned counsel and have also gone through the documents available on record which reveal that initially a suit for declaration and correction of entries in respect of property bearing Khatooni No.1, Khewet No.1 was filed by Mulla Muhammad, Moulvi Ghulam Muhammad and others against Qadir Bukhsh (respondent No.3) wherein petitioner moved an application for his impleadment, however, vide order dated 25-9-1994 his such application was dismissed by observing that plaintiffs admitted right of petitioner over property adjacent to property subject matter of that suit. The record further reveals that thereafter plaintiffs in that suit and Haji Qadir Bukhsh entered into a compromise on the basis whereof suit was decreed whereafter vide order dated 22-2-1998 decree was satisfied and the execution application was consigned to record. It also appears from record that thereafter petitioner filed a suit for specific performance of agreement dated 6-2-1994 executed between him and Mulla Muhammad stipulating that petitioner would bear half of expenses of litigation of the suit filed by Mulla Muhammad against Qadir Bukhsh as half of property in dispute in that suit was of petitioner. In the suit petitioner prayed for specific performance of agreement dated 6-2-1994 and for handing over possession of 1/3rd of property to him, however, plaint was rejected by learned Qazi vide judgment and decree dated 23-8-1999 whereafter he filed an appeal before Majlis-e-Shoora who remanded case to Qazi Court vide judgment and decree dated 10-3-2000 whereafter again his suit was dismissed vide judgment and decree dated 24-6-2000. After dismissal of suit respondent No.3 moved a miscellaneous application to Qazi claiming following relief:-- In pursuance of that order Qazi Kharan sent an order on 2-2-2002 wherein Tehsildar Washuk was directed that Khatooni No.2 Khasra No.12 measuring 118 rods, 30 poles be entered in the name of respondent No.3 (Haji Qadir Bukhsh) which order is impugned in the instant petition. It may be noted that in the earlier suit, which was between Haji Mulla Muhammad and others and Haji Qadir Bukhsh culminating in compromise decree, the subject matter was property bearing Khatooni No.1, Khewet No.1 and un-settled land whereas property bearing Khewet No.2, Khatooni No.2 which was recorded in the name of petitioner was not subject matter of that suit nor any decree was passed in respect of said property. Similarly in suit filed by petitioner against respondents for specific performance, property bearing Khewet No.2, Khatooni No.2 bearing Khasra No.12 was not subject matter, therefore, order passed by learned Qazi directing revenue authorities to mutate said property in the name of Haji Qadir Bukhsh was illegal and without jurisdiction. Furthermore; suit filed by petitioner was dismissed and no executable decree was passed in the suit in favour of respondent No.3, as such; his miscellaneous application for execution of decree dated 24-6-2000 was legally not maintainable as executable decree is one where there is a definite order to a definite person to do or refrain from doing a curtain thing either forthwith or at a given further day or to the happening of a certain event and where there is no such direction then decree could not be legally executable. The Qazi though in impugned order admitted that Tehsildar Washuk exceeded his power by mutating ancestral properties of petitioner in the name of respondent No.3 which were not subject matter of decree, yet refused to review his order which order on the face of it was illegal and without jurisdiction because Naib Tehsildar Washuk has mutated property bearing Khewet No.2, Khatooni No.2, Khasra No.12 in the name of respondent No.3 on the direction of Qazi conveyed to him through order dated 2-2-2002 and not independently by exercising his own powers. In view of what has been discussed above, the order dated 2-2-2002 passed by Qazi, Kharan on Miscellaneous application of respondent No.3 is-hereby set aside and Tehsildar. Washuk is directed to re-mutate property bearing Khewet No.2, Khatooni No.2, Khasra No.12 in the name of petitioner after cancelling mutation entries from the name of respondent No.3. Parties are left to bear their own cost. Petitioner is disposed of accordingly. S.A.K./8/Q Revision accepted.