2010 C L C 1527
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
Syed SOHBAT SHAH and others ---Petitioners
Versus
MUHAMMAD KHAN and another ---Responde nts
Civil Revision No. 379 of 2008, heard on 6th July, 2010.
(a) Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Civil Procedure Code (V of 1908), S. 47 & O.XXI, R.10 ---Suit for
declaration and injunction ---Execution of decree --Suit was de creed with consent of parties
taking into consideration report submitted by local Commissioner after inspection of site, to
which no objection was raised by the plaintiffs/decree -holders --Application for execution of
decree filed by the decree -holders had concurrently been dismissed by two courts below ---
Decree -holders in their execution petition sought possession of land which according to claim
of defendants, was in their possession from time immemorial ---Contention of defendants was
that land sought to b e obtained by the decree -holders was unsettled land and that decree -
holders with mala fide intention had included said Khasra and Khatooni numbers of their
property situated at northern side of the property ---Contention of decree -holders that land
existed in between the boundaries as mentioned in the plaint be handed over to them as they
being decree -holders were entitled for the same, was repelled by the Executing Court
concluding that no dispute existed over the said land ---Court even warned the decree -holders
to be careful in future and not to file any suit without any cause of action --Held, decree -
holders who had consented for the order and decree before the Trial Court, could not resile
from their stand taken before the Trial court at relevant time ---Decree-holders who admitted
to be in possession of decreed property, later on could not claim possession of some other
property in the garb of the decree made in their favour ---Both courts below had come to the
right conclusion, which needed no interference by High Court in revision.
(b) Civil Procedure Code (V of 1908) ---
----S. 47 ---Execution of decree -Court in execution of decree could not go behind the decree.
Amanullah Kanrani for Petitioners.
Nouroz Khan for Respondent No.1.
Tariq A li Tahir Addl. A. -G. for the State.
Date of hearing: 30th April, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Through instant petition the petitioners have assailed
order dated 29 -9-2007 of Civil Judge, Noushki, whereby the application file d for execution of
decree was dismissed and order dated 11 -9-2008 of District Judge, Noushki, whereby appeal
preferred by them was also dismissed. It is their contention that both the courts failed to
understand the nature of the case and also the law, thu s made order in violation of law,
further decree was misinterpreted. It is further their contention that report of Local
Commissioner was not made subject to cross -examination to the extent of possession of land
in question. Furthermore, the Local Commissi oner was appointed not only to see the settled
land, but also the land which boundaries are mentioned in the plaint, as such the report cannot
totally rebut their claim, taken in the plaint, that the suit property was given to respondent
No.1 for cultivati on, as such after consent decree the possession should have been given back
to them (petitioners). But both the courts failed to appreciate this fact and the fact that matter
has not been resolved between the parties in respect of remaining land. They have prayed for
setting aside of impugned orders thereby accepting their execution application, while
possession of property in question as mentioned in plaint and decreed, be ordered to handed
over to them.
The counsel for the parties are heard, while rec ord is perused. Counsel for the petitioner
raised same contention as made in memo. of appeal. While in rebuttal counsel for respondent
'No.1 contended that during course of trial no objection was raised on Report submitted by
the Local Commissioner after i nspection of site. Further, the decree was passed with consent
of the parties, while observations were also made in respect of frivolous litigation on part of
the petitioners. As per record the petitioners filed a suit seeking declaration of their title in
respect of property situated within boundaries described as East: Stream, West: Band -e-
Haqdad, North: lands belonging to them (petitioners) and South: Small mountain, while
bearing khasra Nos.112, 113, 114 and 115, khewat Khatooni No.11, being their ances tral
property, in possession of defendant No.1 as their tenant, further, the respondents/ defendants
have no concern with the same. Injunction to the extent that the respondents be restrained
from making interference in their proprietory right. Further, pr ayed for recovery of
possession from respondent No.1/defendant No.1. In his written statement respondent No.1
strongly contested the suit. It is his contention that he is in possession of land in question
from time immemorial; further land in question is u nsettled land, while the
petitioners/plaintiffs with mala fide intention included the khasra and khata Khatooni
numbers of other property situated at northern side of property in dispute. Further, the
petitioners previously filed two suits which were dismi ssed by the Qazi Dalbandin. He prayed
for dismissal of the suit. While respondent No.2 in reply claimed ownership of property
situated within mentioned boundaries being unmeasured land. Further, as far as land bearing
khasra Nos. 112, 113, 114 and 115 meas uring 27 poles is concerned they have no objection
on transfer of the same in names of the petitioners/ plaintiffs, while remaining land described
as unsettled belongs to State. Respondent No.2 also prayed for dismissal of suit.
It is further apparent from record that during pendency of suit Tehsildar Noushki was
appointed as Local Commissioner with consent of the parties for inspection of the site in
presence of the parties and Revenue staff, to determine the fact that the property in question
is in wh ose possession and occupation and what is its market value. Local Commissioner
after inspection of site submitted his report dated 14 -6-2006 before the trial court. Relying on
the same the trial Court with consent of die parties decreed the suit through or der made, on
16-6-2006. As per contents of order dated 29 -9-2007 of Civil Judge, Noushki an Application
for execution of decree was filed by the petitioners, which was dismissed by the court being
not maintainable. Being aggrieved of the same the petitione rs preferred appeal, which was
also dismissed by the appellate Court through order made on 11 -9-2008. It has been noticed
that the petitioners despite undertaking failed to file copy of application filed by them for
execution of decree and also the relevan t order sheets. Instead of the same they filed order
sheets pertaining to main suit during course of trial.
The perusal of order dated 29 -9-2007, whereby application for execution has been dismissed,
reveals that the petitioners being decree holders fi led the application for handing over of
possession of decreed property to them. The application was contested by respondent No.1 on
the grounds that as the petitioners are already in possession of land bearing khasra Nos.112 to
114, thus no execution can b e made. The contention raised by the petitioners during course of
execution of decree that the land existed in between the boundaries as mentioned in the plaint
be handed over to them, as they being decree holders are entitled for the same. The executing
court comes to the conclusion that: --
"Hence in the light of order passed by this court it nowhere mentions the boundaries of the
disputed lands as mentioned in the para No.1 of the suit, but this court has ordered that, no
dispute exist over the disput ed lands bearing khasra Nos.112, 113, 114 and 115 in Khata and
khatooni No.12 situated in Darmain Zangaab Chagai. And decree had also been passed upon
the same order. Further the court even remarked and warned the, plaintiffs to be careful in
future and no t to file any suit without any cause of action, which is sufficient to consider that
the court decreed the suit to the extent of land bearing khasra mentioned above.
It is, therefore, the execution sought to the extent of lands hearing boundaries as un der:--
East: Stream (Naddi)
West: Band -e-Haqdad belongs to plaintiffs
North: Lands belonging to plaintiffs;
South: Small Mountains;
is not maintainable and the application is dism issed."
The appellate court also arrived at the same conclusion, thereby dismissed the appeal through
order dated 11 -9-2008. Both these orders are assailed before this court through instant
petition.
It is an established principle of law that the c ourt in execution of decree cannot go behind the
decree. In present case the decree is made in terms of:
"----In as much as there is no dispute existing among the parties over the land bearing khasra
Nos.112, 113, 114 and 115 khatooni No.11, Mouza Darm ain, Tehsil and Distict Chagai,
therefore, the suit of the plaintiff with consent of the parties is decreed with no order as to
cost.---"
As the order was made with consent of the parties, therefore, at relevant time none of the
parties feel aggrieved of the same and remain contended. The dispute arose, when the
petitioners approached by filing application seeking therein the execution of decree passed in
their favour, praying therein for handing over the possession of land in question to them from
respondent No.1. Their application was rejected as mentioned above from which the
petitioners are aggrieved. According to the petitioners as they have handed over property in
question to respondent No.1 in year 1994 -95 for cultivation, who is still in possessi on of the
same, which is required to be restored in their favour, as per decree made in this behalf. It is
also their contention that the dispute pertaining to remaining portion of land is not resolved
between the parties by the trial court. In instant pet ition the petitioners tried to distinguish
between the settled and unsettled land allegedly belong to them. But contrary to this
contention in their plaint though in paragraph No.1 they described boundaries as mentioned
in preceding para, one piece of land which is described as land in question in second
paragraph. But in paragraph No.10 the contention of the petitioners is: --
"That it would be worthwhile to mention here that basically the land in dispute was given to
one Akhtar Muhammad for the purpose of irrigation and cultivation in the 60s and the land so
made cultivable and cultivated was entered as owner in the name of predecessors of plaintiffs
and Akhtar Muhammad son of Gul Muhammad in the revenue record, but plaintiffs being
unaware of this situ ation they under misconception treated the land in question unsettled.
Copy of settlement record prepared by the revenue authorities pertaining to land in dispute
bearing khewat and Khatooni No.11 and khasra Nos.112, 113, 114 & 115 is annexed
herewith and marked as Annexure "E". The land was taken back from Akhtar Muhammad he
paid for the mesne profit and as such plaintiffs became the owner of whole property. With
passage of time the land was developed and now the same has become a big land."
As such in prayer clause "A": --
"That the bearing khewat and Khatooni No.11, khasra Nos.112, 113, 114 & 115 falling
within boundaries, as mentioned in para.1 is the ancestral property of the plaintiffs."
Keeping in view of their own pleadings the mentioned k hasra numbers are of the property
which was contended to be matter in dispute between the parties at the suit. It is further
apparent from record that the local inspection of the mentioned specific khasra numbers were
ordered by the trial Court through ord er dated 8 -6-2006, which was surely held in their
presence. The report of Tehsildar Noushki dated 14 -6-2006 is also present on record, which
reveals that it has been specifically mentioned therein that disputed lands bearing khasra
Nos.112, 113, 114 and 11 5 Khatooni No.11, Mouza Darman are in joint cultivating
possession of the plaintiffs (present petitioners). Keeping in view the Report, the trial Court
with consent of the parties decreed the suit only to the extent of these khasra numbers as the
sentence "the suit of the plaintiff with consent of the parties is decreed with no orders as to
costs" cannot be read in isolation as the sentence started while describing the land bearing
mentioned khasra numbers. Further, the order was surely made in presence of the counsel for
the parties without any objection raised from any side, in case the order was not in
conformity with the claim of the petitioners they must have raised objection at relevant time.
They never objected the findings of the Local Commissioner i n respect of being in possession
of land in question. Irrespective of the plea taken by the respondents, the petitioners have to
plead their own case independently. As far as unsettled land is concerned, surely it belongs to
the State and no private person can claim any right or title in respect of the same except as
provided under law. As the claim of the petitioners were only to the extent of land bearing
specific khasra numbers, though no measurement of the same is mentioned neither in the
plaint nor in the Report of Local Commissioner, which was required to be inserted in the
order by the trial court as no decree can be passed for an unspecific area. The courts while
making orders passing decrees in cases where land is matter in dispute the exact
measure ment/ area must be mentioned therein. As the decree is required to be specific.
In view of above discussion the petitioners have consented for the order and decree before the
trial Court, thereafter, they cannot resile from their stand taken before the trial Court at
relevant time. They admitted to be in possession of the decreed property, therefore, later on
they cannot claim possession of some other property in garb of the decree made in their
favour. The trial as well as appellate court comes to the right conclusion, which needs no
interference by this court at this stage. Therefore, instant revision petition is dismissed being
devoid of merits.
No orders as to costs.
H.B.T./81/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.