The decree not become inexecutable if judgement debtor became owner in joint land.
بے شک! یہاں ایک آسان کہانی ہے جو **Mst. کنیز بتول بمقابلہ اللہ بخش اور دوسرا**:
---
**جائیداد کا تنازعہ**
محترمہ کنیز بتول، درخواست گزار، جائیداد کے ایک ٹکڑے پر قانونی جنگ میں ملوث تھی جس کے بارے میں اس نے دعویٰ کیا تھا کہ وہ صحیح طور پر اس کی ہے۔ فروری 2021 میں، عدالت نے اس سے اتفاق کیا اور حکم دیا کہ متنازعہ جائیداد، جو کہ ایک مخصوص 7 مرلہ اراضی تھی، اس کے قبضے میں واپس کردی جائے۔ اس فیصلے کی توثیق اپیلٹ کورٹ اور لاہور ہائی کورٹ دونوں نے کی اور اسے حتمی فیصلہ دیا۔
تاہم اس عدالتی حکم پر عمل درآمد کے دوران مدعا علیہ اللہ بخش اور ایک اور فریق نے اعتراضات اٹھائے۔ انہوں نے دلیل دی کہ یہ حکم نامہ اب درست نہیں رہا کیونکہ انہوں نے عدالت کے فیصلے کے بعد شریک شریک سے جائیداد میں حصص حاصل کیے تھے۔ انہوں نے دعویٰ کیا کہ اس نئی پیشرفت کا مطلب ہے کہ عدالتی حکم اب غیر متعلق ہے۔
ایگزیکیوٹنگ کورٹ نے ابتدائی طور پر ان اعتراضات کو مسترد کر دیا، لیکن اپیل کورٹ نے اس فیصلے کو کالعدم قرار دیتے ہوئے کہا کہ جواب دہندگان کی حیثیت میں تبدیلی کی وجہ سے حکم نامہ "ناقابل عمل" ہو گیا ہے۔
محترمہ کنیز بتول، اس نتیجے سے مطمئن نہیں، یہ معاملہ واپس لاہور ہائی کورٹ لے گئے۔ اس کے وکیل نے دلیل دی کہ عدالت کا پہلا فیصلہ حتمی تھا اور جواب دہندگان کے نئے دعووں کے باوجود اسے نافذ کیا جانا چاہیے۔ انہوں نے اصرار کیا کہ جواب دہندگان کو ان کے بعد کی جائیداد کے لین دین کے ساتھ حکم نامے کو باطل کرنے کا کوئی حق نہیں ہے۔
لاہور ہائی کورٹ نے محترمہ سے اتفاق کر لیا۔ کنیز بتول۔ عدالت نے فیصلہ دیا کہ جواب دہندگان کے نئے دعووں سے قطع نظر، حکم نامے کو اصل حکم کے مطابق نافذ کیا جانا چاہیے۔ ہائی کورٹ نے ایگزیکیوٹنگ کورٹ کے حکم کو بحال کرتے ہوئے اس بات کو یقینی بنایا کہ Mst. کنیز بتول کو اس کی جائیداد واپس مل جائے گی۔
خلاصہ طور پر، عدالت نے فیصلہ کیا کہ اگرچہ مدعا علیہان نے نئے حصص حاصل کر کے اپنی حیثیت تبدیل کر لی تھی، لیکن اس سے عدالت کے اصل حکم نامے کی حتمیت اور نفاذ پر کوئی اثر نہیں پڑا۔
Stereo. H C J D A 38.
Judgment Sheet
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Civil Revision No.40110/2022
Mst. Kaneez Batool Versus Allah Bukhsh and another
J U D G M E N T
Date of Hearing:
16.03.2023
Petitioner by:
Mr. Muhammad Yasrab Hunjra, Advocate.
Respondent
s by:
Ch. Rab Nawaz, Advocate.
Anwaar Hussain, J. The present petition has emanated from
execution proceedings initiated by the petitioner/decree holder for
implementation of judgment and decree dated 02.02.2021 passed in
the suit instituted by her for recovery of possession, under Section 8
of the Specific Relief Act, 1877 (“the SRA”). Judgment and decree
dated 02.02.2021 was upheld by the learned Appellate Court and then
the said concurrent findings were maintained by this Court, vide order
dated 27.07.2021, passed in Civil Revision No.47263/2021. During
the execution of decree dated 02.02.2021, the respondents/judgment
debtors filed objection petition primarily on the ground that the said
decree has become inexecutable as the respondents/judgment debtors
have become co-sharers in the khata/khewat in which the disputed
property also falls. The objection petition was dismissed, vide order
dated 24.02.2022, by the learned Executing Court against which
appeal was preferred by the respondents/judgment debtors that was
allowed, vide order dated 21.04.2022, and it has been held that the
decree has become inexecutable.
2.
Learned counsel for the petitioner submits that the learned
Appellate Court below went beyond the decree under execution which
has been upheld by this Court, on the ground that after passing of the
decree, the respondents/judgment debtors have become co-sharers of
Civil Revision No.40110/2022
2
khata/khewat in which the property in dispute is situated that is not a
plausible ground to make the decree dated 02.02.2021 redundant.
Adds that even if the said decree is executed/implemented and the
respondents/judgment debtors are dispossessed during the execution
proceedings, the respondents/judgment debtors have alternate
remedies available to them and could always avail the same to claim
their share through partition, in joint khata/khewat, inasmuch as a
purchaser in a joint khata/khewat steps into the shoes of his
predecessor only but a final decree passed and have attained finality
cannot be nullified in an oblique manner by purchasing share from
one of the purported co-sharers who was not in possession of the
disputed property or in possession of the joint khata/khewat. Further
submits that description of the property was clearly given in the
decree sheet drawn and any purchase of the said property, from a
purported co-sharer in the joint khata/khewat, during the pendency of
the execution proceedings could not vitiate or defeat the lawfully
passed decree and make the earlier illegal occupation as lawful. In
support of his contentions, places reliance on the cases reported as
“Allah Ditta v. Ahmed Ali Shah and others” (2003 SCMR 1202) and
“Abdul Ghani v. Ghulam Abbas Tamanna and others” [2015 CLC 89
(Lahore)].
3.
Conversely, learned counsel for the respondents/judgment
debtors submits that the learned Appellate Court below has rightly
upset the findings of the learned Executing Court inasmuch as the
decree became inexecutable when the status of the
respondents/judgment debtors changed from mere occupants to that of
co-sharers in the khata/khewat on the basis of a registered sale deed
and if there was any grievance of the petitioner as a co-sharer against
the respondents/judgment debtors, the proper course of action
available with the petitioner is to institute a fresh suit for possession
through partition. Concludes that though concurrent findings rendered
in the suit for possession, under Section 8 of the SRA, against the
Civil Revision No.40110/2022
3
respondents/judgement debtors were upheld vide order dated
27.07.2021 passed in Civil Revision No.47263/2021 and have attained
finality, the said finding was rendered when no title document in
favour of the respondents/judgment debtors was in existence,
however, the matter has undergone an admitted change after the
purchase of the disputed property by the respondents/judgment
debtors and the changed circumstances can be looked into and relief
can be accordingly moulded by the learned Executing Court and
reliance has been placed on case reported as “Muhammad Aslam
(Through his L.R.) v. Wazir Muhammad” (PLD 1985 Supreme Court
46) in support of his contentions.
4.
Arguments heard. Record perused.
5.
The only legal question that requires determination by this
Court boils down to examine whether a decree for possession against
an illegal occupant becomes inexecutable for the reason that the said
occupant has purchased the share from a co-sharer of the decree
holder, in a joint khata/khewat, during the pendency of the execution
proceedings?
6.
Factual matrix of the case is not disputed. When the suit was
instituted by the petitioner for recovery of possession of the disputed
property measuring 7 marla, clearly described in the plaint (followed
by description in the decree sheet), a specific stance was taken by the
respondents/judgment debtors while submitting written statement in
the terms that the latter are in possession of the disputed property
since long after purchasing the same, through an agreement to sell,
from one Mst. Kaneez Fatima who is maternal cousin of the petitioner
and following issues were framed:
“ISSUES:
1. Whether the plaintiff is entitled for the decree of
possession on the basis of ownership as prayed for?
OPP
Civil Revision No.40110/2022
4
2. Whether the plaintiff has no cause of action to file this
suit? OPD
3. Whether the suit of the plaintiff is not maintainable in
its present form? OPD
4. Whether the suit of the plaintiff is time barred and
barred by law, liable to be rejected u/o 7 rule 11 of
CPC? OPD
5. Whether the plaintiff filed this suit just to harass the
defendant and the suit of the plaintiff being false and
frivolous is liable to be dismissed with special costs?
OPD
6. Relief.”
Keeping in view the above-quoted issues framed by the learned Trial
Court, the parties led their respective evidence and respondent No.1
appeared as DW-1 and produced one Muneer Akhtar as DW-2 and in
the documentary evidence, inter alia, produced agreement to sell as
Exh.D1. It is imperative to note that neither above-referred Mst.
Kaneez Fatima was produced as DW nor was she got summoned as
Court witness or any secondary evidence was led if she was not alive
and in this manner, the best evidence has been withheld when the trial
was in progress and therefore, the case of the respondents/judgment
debtors falls under the clutches of illustration (g) to Article 129 of the
Qanun-e-Shahadat Order, 1984, hence, adverse presumption is to be
drawn against the respondents/judgment debtors. Case reported as
“Dilshad Begum v. Mst. Nisar Akhtar” (2012 SCMR 1106) is referred
in this regard. The learned Appellate Court below while upsetting the
findings of the learned Executing Court has not considered this legal
aspect of the matter and allowed the respondents/judgment debtors to
prove a stance that was taken in the main suit, which the respondents/
judgment debtors failed to do during the trial, by holding as under:
“4….The present appellant was mainly knocked out by
all the courts due to the reason that he failed to produce
the executants Kaniz Fatima in the witness box, scribe
and any other witness to prove agreement dated
28.10.2016, as such, the said agreement was discarded.
Civil Revision No.40110/2022
5
The appellant who was in physical possession of suit
property became co-owner in suit khewat on execution of
registered sale deed 4051, dated 28.12.2021 and
consequent mutation No.6475, dated 28.12.2021, as such
he stepped into the shoes of vendor namely Raza Ullah
who was the son of executants Kaniz Fatima and after
death of executants, her son alienated suit property in
favour of the present appellant, may be acknowledging
the promise made by his departed mother. Whatever may
be, the status of the appellant by now has become as cosharer and undeniably he has been in possession of suit
property measuring 07 marlas and his unauthorized
possession as observed in all the judgments has become
valid and lawful by virtue of that. With due respect to
my mind, the documents sought to be produced as
additional evidence have become irrelevant and
redundant by virtue of execution of the registered sale
deed and consequent mutation in favour of appellant. As
what the appellant wants to prove by way of documents
mentioned at serial No.I to VII, the same merged into the
title deed i.e registered sale deed and consequent
mutation.
5.
As corollary to the above discussion, the appeal is
accepted, the objection petition disallowed by the learned
trial court is accepted and the execution petition stands
become infructuous. The learned Executing Court is
directed to pass the order to this effect on the execution
petition as the appellant has become co-sharer, therefore,
decree for possession cannot be executed against him.
Proper remedy available to the decree holder in the
changed circumstances is to seek partition if she so
desires.”
(Emphasis supplied)
7.
During the course of arguments, permission was sought by
learned counsel for the respondents/judgment debtors to submit the
sale deed dated 28.12.2021, relied upon by the learned Appellate
Court below that was registered after passing of the judgment and
decree of the learned Trial Court dated 02.02.2021 upheld in appeal
by learned Additional District Judge, Sahiwal, District Sargodha and
also affirmed by this Court in Civil Revision No.47263/2021 vide
order dated 27.07.2021. On the strength of the said sale deed, it has
been argued that one Raza Allah Yar is the son of above referred Mst.
Civil Revision No.40110/2022
6
Kaneez Fatima, from whom purportedly the disputed property was
purchased through an agreement to sell in the first instance, with the
averments that since the disputed property has now been purchased
from her son who is a co-sharer of the same khata/khewat through a
registered document, therefore, the factual matrix has changed and the
decree has become inexecutable. The argument is misconceived rather
self-destructive inasmuch as the title document now being relied upon,
even if considered, and given some weightage, upon its perusal
reveals that the same does not reflect that it is the same property
which was subject matter of the agreement to sell purportedly
executed by Mst. Kaneez Fatima. No reference to any earlier
agreement to sell between mother (Mst. Kaneez Fatima) of the vendor
and the respondents/judgment debtors has been made in the said sale
deed. Moreover, the document that has been got registered after the lis
was finalized up to the level of this Court cannot be made basis for
rendering a lawfully passed decree redundant. This Court in abovereferred Civil Revision No.47263/ 2021 held as under:
“3.
The impugned judgment while deciding on the six
issues concluded that the Respondent has produced her
title documents to show that she is the owner in
possession of the disputed property and this stance of the
Respondent has not been refuted through evidence or
cross examination by the Petitioner. Furthermore, the
Petitioner does not have any title document in his
favour and has merely relied on an Iqrarnama dated
28.10.2016, which is not a title document. Therefore, as
the Petitioner does not have any title document in his
favour and cannot prove his ownership, the court
concluded that he is illegally occupying 07 marlas of land
and has been asked to return possession of the property to
the Respondent. In this regard the entire case of the
Petitioner is that the Respondent is a co-sharer in joint
property and the joint property has not been partitioned
hence she cannot claim that she is the owner in
possession of specified 07 marlas of land for which he
claims to be the owner. This argument actually negates
the stance of the Petitioner as he claims that he bought
the property from the Respondent and if the property of
the Respondent has not been partitioned then the
Civil Revision No.40110/2022
7
question of the Petitioner being the owner of a specific
07 marlas in a joint khata is also not justified. Learned
counsel was asked to show the Petitioner’s title
document or to show the basis for which he claims
himself to be the owner of a specific 07 marlas of land,
however, he was unable to produce any document. The
matter has been duly considered through the impugned
judgment and no illegality is made out.”
(Emphasis supplied)
The sale deed now being relied upon itself seems to be a document
prepared in order to raise the plea of changed circumstances rendering
the decree in favour of the petitioner inexecutable and an attempt to
deny the fruits of the decree to the petitioner on one pretext or the
other. It appears that once the concurrent findings of the learned
Courts below in the suit instituted by the petitioner had attained
finality, the registered document had been prepared which is executed
by one Raza Allah Yar, who is statedly son of Mst. Kaneez Fatima.
8.
Moreover, in case reported as “Nazir Ahmed v. Mst. Sardar Bibi
& others” (1989 SCMR 913), somewhat similar question of law
came before the Supreme Court of Pakistan, albeit in a rent matter,
where the eviction order was passed that attained finality and was
required to be executed as a decree in terms of provisions of West
Pakistan Rent Restriction Ordinance, 1959, and the respondent/tenant
in the said case took the plea that he became owner and the execution
petition was not competent. The said argument was discarded by the
Supreme Court of Pakistan. Applying the same analogy to the present
case, even if for the sake of argument it is taken that the status of the
respondents/judgment debtors is now that of co-sharers, still they are
bound to handover the possession in execution of the decrees and
thereafter seek remedy in accordance with law on the basis of sale
deed admittedly procured by them during pendency of the execution
proceedings, once the decree against them has attained finality, after
dismissal of the Civil Revision by this Court.
Civil Revision No.40110/2022
8
9.
The learned Appellate Court below has erred in rendering the
impugned findings inasmuch as, by leading credible evidence, the
petitioner validly proved her entitlement in respect of the property in
dispute clearly described in the plaint and falling in a particular
khata/khewat and hence, proved the unlawful occupation thereof by
the respondents/judgment debtors, and the said findings were upheld
by the learned Appellate Court below as well as this Court as
discussed hereinabove and the same cannot be brushed aside in
execution proceedings as the learned Executing Court cannot go
beyond the decree. Moreover, it will be erroneous to compel the
petitioner to approach the relevant forum for partition of the joint
khata/khewat on the basis of changed circumstances that the suit
property has been purchased by the respondents/judgment debtors
through a registered document as the same will amount to adding to
the agony of a litigant/decree holder who successfully proved her title
against an illegal occupant, i.e., respondents/judgment debtors.
10. There is another angle from which the matter can be examined.
The respondents/judgment debtors, after purchase of some share/
property from Raza Allah Yar through registered sale deed in the joint
khata/khewat, have at the most stepped into the shoes of above
referred vendor. Therefore, even if the said vendor is acknowledged as
co-sharer in the khata/khewat, he cannot transfer a better title then he
himself had. Admittedly, said Raza Allah Yar or his mother Mst.
Kaneez Fatima were not in possession of the suit property when the
suit was instituted by the petitioner or even subsequent thereto. In case
reported as “Ramdas v. Sitabai and others” [(2009) 7 SCC 444], it has
been held that without there being any formal partition of a property, a
co-sharer cannot put a vendee in possession even though such cosharer may have a right to transfer his individual share. Thus, the right
of the vendee from a co-sharer in a joint khata/khewat is always
subject to the partition whereby the share of the co-sharers is divided
Civil Revision No.40110/2022
9
by metes and bounds for which the respondents/judgment debtors, and
not the petitioner, will have to approach the learned Civil Court
concerned by instituting an independent suit as the learned Executing
Court is only vested with the power and jurisdiction in terms of
Section 47 of the Code of Civil Procedure, 1908 to determine and
decide those questions between the parties to the suit or their
representatives which are germane to execution, discharge or
satisfaction of the decree and purchase of share from a purported cosharer in a joint khata/khewat is not such question as the said purchase
of the share from a co-sharer does not nibble away the decree passed
in favour of the petitioner that has attained finality. Needless to
mention that the learned Executing Court cannot travel beyond decree
and this Court is well aware of the fact that this rule is not absolute or
invariable rule of law rather the same is subject to certain exceptions
as expounded by the Courts. The Supreme Court of Pakistan in case
titled “Islamic Republic of Pakistan v. Muhammad Saeed” (PLD 1961
SC 192) held that even in the execution proceedings questions relating
to the executability of an order or decree can be raised and it is open
to the party against whom it is sought to be executed to show that it is
null and void or had been made without jurisdiction or that it is
incapable of execution. Taking guidance from the ratio laid down in
case of Islamic Republic of Pakistan supra and applying the same to
the facts of the present case depicts that neither the decree passed in
the instant case was null and void nor had been made without
jurisdiction or incapable of execution and possession in favour of the
petitioner is to be restored. Had the share and/or possession of the suit
property sought by the decree holder been indeterminate and/or
undefined and the decree holder as a co-sharer sought possession in
the joint khata/khewat, the decree could have been considered to have
become inexecutable on account of indeterminate share. However,
this is not the case here. The suit for possession under Section 8 of the
SRA had been instituted with respect to specific portion duly spelled
Civil Revision No.40110/2022
10
out in the plaint, which was decreed and decree sheet was accordingly
drawn. Subsequent thereto, share, in the joint khata/khewat, from one
of the purported co-sharers has been purchased by the
respondents/judgment debtors, which cannot be taken as a tool to
defeat the decree of the decree holder with respect to already
determinate share. Therefore, it is not one of those cases where the
decree for possession could become infructuous and inexecutable by
purchase of share from co-sharers. The instant case is an exception to
the general rule where possession of already determinate share was
sought and decreed. Needless to mention that in case the
respondents/judgment debtors through a fresh suit establish that they
have purchased a valid share in the joint khata/khewat, they can
always seek possession of the relevant portion.
11. Insofar as the case of Muhammad Aslam supra, cited by learned
counsel for the respondents/judgment debtors is concerned, the same
has been considered and found that the reliance is misconceived
inasmuch as the law laid down in the said case is settled elucidation of
law but is not applicable to the facts of the instant case as in the said
case, the relief was moulded, by the Supreme Court of Pakistan, in
favour of the landlord, who was successful in his ejectment petition,
whereas, in the instant case, the respondents are not the decree holders
but are the judgment debtors and it is yet to be determined as to
whether they had any entitlement to be in possession of the disputed
property as the title document now being relied upon, as stated earlier,
was procured/obtained after the decree against the
respondents/judgment debtors has attained finality and this question
can be determined only in a separate suit by arraying all the co-sharers
of the khata/khewat.
12. For what has been discussed above, this Civil Revision is
allowed, impugned judgment dated 21.04.2022 passed by the learned
Additional District Judge, Sahiwal, District Sargodha is set aside and
Civil Revision No.40110/2022
11
order dated 24.02.2022 passed by the learned Executing Court,
Sahiwal, District Sargodha is restored. No order as to costs.
(ANWAAR HUSSAIN)
Judge
Approved for reporting
Judge
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