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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