' This civil revision petition under section 115, C.P.C. Calls in question the judgment and decree, dated 5-10-2001, passed by the learned Additional District Judge, Talagang, upholding the judgment and decree, dated 8-12-2000 passed by the leaned Civil Judge, Talagang, whereby he proceeded to dismiss the execution petition filed by the petitioner under section 47 of the C.P.C.
2. Brief facts of the case are that Hameedul Hassan Shah son of Altaf Hussain Shah was owner of the land measuring 49 Kanals, 9 Marlas, i,e, land measuring 26 Kanals, 4 Marlas out of Khewat No,243, Khasra No,1428, 1429, 1430 to the extent of share 260/768, land measuring 7 Kanals, 18 Marlas out of Khewat No,243, Khasra No,1492 with 320/768 share, land measuring 4 Kanals, 19 Marlas to the extent of share 200/768 out of Khewat No,243 Khasra No,1493 and land measuring 10 Kanals, 18 Marlas according to share 159936/776448 out of Khewat No,243 Khasra No,1435. The said land was transferred by said Hameedul Hassan in favour of respondent Yar Muhammad etc. Vide Mutation No,242, dated 22-5-1989. Syed Munawar Hussain Shah filed a suit for possession through pre-emption against - respondents Yar Muhammad etc. With regard to the land measuring 49 Kanals, 9 Marlas, stated above. The respondents contested the suit, which was dismissed by the learned trial Court on 25-4-1993. The appeal filed thereagainst by the petitioner was accepted by the learned Appellate Court vide its judgment and decree, dated 2-9-1996 and the suit was decreed, which decree was maintained by the High Court in Civil Revision No,456-D of 1996 filed by respondents Yar Muhammad etc. The petition for Leave to Appeal (C.P.L.A. No,66 of 1999) was dismissed on 8-11-1999 by the Honourable Supreme Court of Pakistan.
3. Thereafter Syed Munawar Hussain Shah petitioner sought execution of the decree. The said execution petition was dismissed vide order of the Executing Court dated 19-3-2001 on the ground that the petitioner was entitled to issuance of warrants of symbolic possession and not a warrant for delivery of actual physical possession by partition of the land. The petitioner filed an appeal, whereas the respondents also challenged the order by filing cross-objections in connection with the same execution petition. The cross-objections of the respondent were dismissed being hopelessly time-barred, as according to the Appellate Court, there were no good reasons to entertain the cross-objections by condoning the delay of eight months. The appeal of the petitioner was also dismissed by the learned Additional District Judge on 5-10-2001 by observing:-- "In the present case, the decree-sheet clearly reveals that the petitioner has not purchased any specific portion from the joint Khata, rather he has purchased 260/768 shares of Khewat No,243, Khasra No,1428, 1429, 1430, land measuring 26 Kanals, 4 Marlas, 320/768 share out of Khewat No,243, Khasra No,1492, land measuring 7 Kanals, 18 Marlas, 200/768 share out of Khewat No,243 Khasra No,1493 land measuring 4 Kanals, 19 Marlas and 159936/776448 share out of Khewat No,243, Khasra No,1435 land measuring 10 Kanals, 18 Marlas. There is nothing on behalf of the petitioner on the file of the Executing Court that the respondent got possession of specific portion of land purchased by them in the joint property. Therefore, in these circumstances, in view of the judgment cited supra, the petitioner was entitled only to issuance of warrant of symbolic joint possession to the extent of his share in the land in question and not a warrant for delivery of actual physical possession by partition of land."
4. Mr. Mujeebur Rehman Kiani, Advocate, learned counsel for the petitioner contends that admittedly Talib Hussain is father of respondents Nos.2 to 6 and they were minors at the time of filing of the pre-emption suit; throughout the proceedings respondents Nos.2 to 6 were being represented by Talib Hussain, their real father and guardian; the Khasra Girdawari in respect of Khasra Nos.1492 and 1493 reflects the possession of Talib Hussain in respect of land measuring 38 Kanals and 1 Marla; the learned Appellate Court observed wrongly in the impugned judgment and decree that the land sold to the extent of 12 Kanals, 17 Marlas was part and parcel of these two Khasra Nos. Further argues that it is an admitted fact that the said Talab Hussain was neither co- sharer in the aforesaid Khasra numbers nor he held possession as a tenant of the vendor of his sons; the judgments of both the Courts below are result of misreading and non-reading of documentary evidence. Further contends that in preemption suit filed by the petitioner, Hameedul Hassan vendor appears as D.W.3 who stated in cross-examination that before the sale of the disputed property, Sultan Mehmood and Aman Khan cultivated the land in dispute which clearly shows that after the sale of the land in dispute Talab Hussain on behalf of the vendees entered into possession of land in Khasra No,1492 and 1493 but both the Courts below ignored this piece of evidence. Further argues that the disputed question of fact whether possession of Khasra Numbers 1492 and 1493 in respect of land measuring 38 Kanals, 1 Marla was given by vendor to vendees could only be ascertained through a proper inquiry after framing of issues and recording of evidence. Reliance has been placed on the case reported as Messrs Woolways, Shop-cum-Office, Chandigarh and others v. Central Bank of India AIR 1990 Punjab and Haryana 92 to contend that it was obligatory on the Executing Court to decide the objection judicially and not summarily.
5. Malik Muhammad Kabir, Advocate, who has entered appearance on behalf of the respondents in pursuance of pre-emption notice, conversely, on the strength of the cases reported as Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640 and Ali Shah v. Allah Ditta and 6 others 1994 CLC 800, contends that the decree to the extent of the share in the joint property has been passed in favour of the petitioner by the learned Additional District Judge, which was maintained by the High Court and the Honourable Supreme Court of Pakistan and thus, the decree-holder was entitled to issuance of warrant of symbolic joint possession to the extent of the share in the land in question and not a warrant for delivery of actual physical possession by partition of the land. The order of the Executing Court dismissing the execution petition of the petitioner, upheld by the learned Additional District Judge in appeal, has been passed by the Court having jurisdiction on the basis of the record, which cannot be interfered with by this Court in exercise of revisional jurisdiction under section 115, C.P.C.
6. Syed Munawar Hussain Shah, petitioner succeeded in getting the decree for possession through pre-emption dated 2-9-1996, passed by the Additional District Judge, which was maintained by the High Court and the Honourable Supreme Court of Pakistan, against the respondents Yar Muhammad etc., with regard to the land measuring 49 Kanals, 9 Marlas, as detailed in para. 2 of this judgment. There is no force in the contention of the learned counsel for the petitioner that Khasra Girdawari in respect of Khasra No,1492 and 1493 reflects the possession of Talib Hussain, father of the minor respondents in respect of land measuring 38 Kanals and 1 Marla. The Khasra Girdawari in which Talib Hussain has been shown as tenant regarding 40 Kanals, 17 Marlas of land in Khasra No,1449 is in respect of Kharif crop 31-10-1995 and 30-10-1999. The vendor Hameedul Hassan sold portion of land, i,e, 49 Kanals, 9 Marlas, the joint land, vide Mutation No,242, dated 22- 5-1989. In this view of the matter, the relevant entry in Khasra Girdawari is for the period of Kharif 1- 10-1987 to 13-4-1991, in which Hameedul Hassan has been shown as co-sharer through Ahmad Khan in Khasra No,1428 and 1429. Therefore, the learned First Appellate Court was right in observing that the land sold to the extent of 12 Kanals, 17 Marlas was part and parcel of these Khasra numbers. The statement of Hameedul Hassan, vendor, who appeared as D.W.3 is that before the sale of the disputed property Sultan Mehmood and Aman Khan cultivated the land in dispute. This statement made by D.W.3 Hameedul Hassan in cross-examination is not reconciling the Khasra Girdawari for the period 1-10-1987 to 26-3-1990. There is no evidence on the record that the vendees had purchased specific Khasra number and had entered into possession of definite property. The suit for possession was decreed for the portion of land in Khasras Nos.1428, 1429, 1430, 1492, 1493 and 1495. Therefore, the symbolic possession, as held by the two Courts below, could have been delivered to the petitioner and the petitioner was not entitled for physical possession.
7. Decree for possession through pre-emption was granted in favour of petitioner Syed Munawar Hussain Shah under Order XX, rule 1, C.P.C. A bare reading of the decree would show that it was not regarding a definite property, but was for a share in the joint property, therefore, Order XXI, rule 35(2), C.P.C. Will be applicable which reads as follows:-- "35(2). Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaimed by beat of drum, or other customary mode, at some convenient place, the substance of the decree."
' Had the decree been for a definite property and not a share in the joint property, then Order XXI, rule 35(1), C.P.C. Would have been pressed into service. This provision of Order XXI, rule 35(2), C.P.C.
Came up for interpretation in the case of Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640 and it was ruled by the Honourable Supreme Court as under:-- "Pre-emption decree---Mode of passing-Delivery of possession, a requirement in execution of such decree---Civil Court is required to pass a decree in accordance with provisions of O.XX, R.14 of Civil Procedure Code---Decree of pre-emption, therefore, could be only for delivery of possession of land sold and pre-empted, which in the case was definite property and not a share in joint property."
It is well-settled proposition of law that Executing Court cannot go beyond the decree. It has been ruled in the case reported as Muhammad' Inayat v. Ghulam Murtaza PLD 1987 Lah. 537:-- "Vendee, by virtue of sale-deed was given physical possession of specific Khasra numbers comprising a joint Khata---Documents on record establishing that at the time of sale there was exclusive physical possession of the vendor on land in question---Decreeholder had set up his claim to have possession of the land which was in ownership and possession of the vendor---In that eventuality, it was held that successor-pre-emptor would be substituted for the vendee vis-a- vis the physical possession of the suit-land."
8. In case of Ali Shah v. Allah Ditta and 6 others 1994 CLC 800, a distinction has been drawn in the case where decree for possession in a pre-emption suit of specific Khasra number (definite property) has been passed, the decree shall be executed by delivery of physical possession, but where a decree in favour of the pre-emptor was passed regarding a share of the suit property, the pre-emptor in execution proceedings, filed on the basis of such a decree would be entitled to issuance of warrant of symbolic possession to the extent of share regarding which suit had been decreed.
9. On the touchstone of the case reported as Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640, Muhammad Inayat v. Ghulam Murtaza PLD 1987 Lah. 537 and Ali Shah v.
Allah Ditta and 6 others 1994 CLC 800, I may conclude here that the vendee Yar Muhammad etc. Respondents, did not purchase specific Khasra numbers out of the joint Khata and had not entered into possession of definite property. On the contrary, the petitioner-pre-emptor in execution proceedings would be entitled to issuance of warrant of symbolic possession of the land to the extent of the share regarding which suit had been decreed.
10.
10. Parties did not want to lead evidence before the Executing Court, and therefore, reliance of the petitioner on the case of Messrs Woolways, Shop-cum-Office, Chandigarh and others AIR 1990 Punjab and Haryana 92 by the learned counsel for the petitioner is not relevant.
There is concurrent finding of fact recorded by the two Courts of competent jurisdiction, which cannot be interfered with by this Court in exercise of revision jurisdiction under section 115, C.P.C.
Resultantly, this revision petition fails and is dismissed.