1. Muhammad Mujeebullah Siddiqui, J.--The grievance of the Petitioners is that they approached the Respondents Nos. 6 and 7 for the mutation in the record of rights according to compromise decree in First Class Suit No. 60 of 1995, but they have refused the mutation and therefore, it may be declared that the act of Respondent No. 6, Mukhtiarkar, refusing to mutate the entry in the record of rights in the names of the petitioners/decree holders in accordance with the compromise decree is illegal, mala fide and without lawful authority and that the Respondents Nos. 6 and 7 be directed to mutate the record in the name of petitioners/decree holders in accordance with the compromise decree.
2. The Respondent No. 6, Mukhtiarkar, has filed the parawise comments, stating therein that Respondent No. 7, District Officer (Revenue), Larkana sent a letter dated 18-2-2006 to him with the directions to go through the contents of the compromise decree passed in First Class Suit No. 60 of 1995 and taken further necessary action in accordance with law. It is further stated that the report of Tapedar was called, wherein details of the lands and names of Khatedars were given. It was stated that there are several survey numbers shown' in the compromise decree in the name of parties to the decree but in the record of rights those survey numbers are not mutated in the names of such persons. The Mukhtiarkar has further stated that he has himself gone through the record and has verified the contents of report of Tapedar. He has stated that the following survey numbers, which are mentioned in the compromise decree do not belong to the parties in the compromise decree and their owners, according to the record are as under: S.Nos. Area Owners according to R/R 274 1-06 acresMst. Izzat Khatoon 0-50 Sultan 0-50 231 1-31 acresSame as above 236 6-32 acresGhulam Muhammad Ghulam Ali Ghulam Mujtaha Mst.
3. Ghulam Fria 277 1-00 acresMst. Izzat Khatoon 0-50 Sultan 0-50 279 2 i 5 acres 284/1 A 0-15 ac s 452 5-11 acres= = 376 3-11 acres= = 359 ', 1-05 acres= = 250 7-12 acres= = 378/2 1-19 acres= = 379 2-04 acres= .
4. The above persons were not joined as parties in the Civil suit and they are not party to the compromise decree and, therefore, the decree is not binding on the above persons. He has further submitted that on account of the above reasons the compromise decree cannot be executed upon as per terms and conditions mentioned in the decree. He has explained that he has refused to mutate the record of rights as per terms and conditions of decree for the reasons that the parties in the suit are not owners as per record of rights.
5. We have asked Mr. Moohanlal whether any execution application has been tiled before the Civil Court for the execution of decree. to which he ha' replied that no execution application has been submitted because the compromise decree is a declaratory decree, which is not capable of being executed. He has further submitted that without filing any execution application the petitioners are entitled to get the mutation in the record of rights in pursuance of the declaratory decree passed by the Civil Court. In support of his contentions he has placed reliance on a D.B. judgment of this Court in the case of Muhammad Yousif v. Abdul Rashid PLD 1973 Karachi 686, wherein it has been held that if a decree does not contain any absolute direction but has stopped short with declaring the rights and the obligations of the parties relating to the property forming the basis of the claim sought to be enforced through execution proceedings, the decree would be merely declaratory in nature and not capable of execution. He has further replaced reliance on a single Bench judgment of the Lahore High Court in the case of Khushi Muhammad v. Member, Board of Revenue 1992 CLC 125, wherein it has been held that the Revenue Officer is bound by a decree of the Civil Court and has no authority to review or scrutinize the merits of the decree of the Civil Court and even it is barred by time, the Revenue authorities are obliged to sanction mutation on the basis of decree of the Civil Court. He has next placed reliance on the judgment of Honourable Supreme Court in the case of Ali Ahmad v. Muhammad Fazal 1972 SCM R 322, wherein it has been held that the Revenue authorities are under obligation to sanction mutation on the basis of a decree.
6. We have examined the compromise decree and we are not persuaded to agree with the submission of Mr. Moohanlal that it is a declaratory decree simpliciter. The test has been laid down in the D.B. judgment of this Court in the case of Muhammad Yousuf (supra), wherein it has been held that if the decree stops short with declaring the rights and obligations of the parties relating to the property forming the basis of the claim sought to be enforced, it was a decree declaratory in nature. In the compromise decree in first class Suit No. 60 of 1995 we find that the parties have settled the terms and conditions of compromise and after specifying the survey number and the area, which shall be held by each party, it has been agreed that after passing of decree the record shall be prepared accordingly. Mukhtiarkar, Larkana was a party to the compromise decree. Thus, when there is a specific condition in the compromise and the compromise decree has been passed in pursuance of the terms and conditions agreed between the parties containing the condition that the record shall be prepared accordingly, it is not a decree declaratory in nature simpliciter and therefore, if Mukhtiarkar being a party to the compromise decree has refused to act according to the compromise, the decree holders ought to have approached Civil Court for the execution of the decree.
7. Mr. Muhammad Bachal Tonyo has pointed out that at the time of submitting compromise application the learned counsel for the plaintiff had filed statement withdrawing the suit against Respondents Nos. 4 to 6 i.e., Mukhtiarkar, Larkana, S.H.O. Taluka Police Station, Larkana and Government of Sindh through D.C. Larkana. Even if the suit was withdrawn against the Respondents Nos. 4 to 6, the record was to be mutated by the Revenue Authorities and the Civil Court is competent to get the decree executed. However, if Mr. Moohanlal is of the view that the decree is declaratmy in nature, the relief lies in filing the suit for execution of a decree, more particularly because the facts are disputed. According to Tapedar and Mukhtiarkar, the lands are mutated in the names of persons who were not party to the suit and therefore, the trite law is that nobody can transfer any right, title or interest in a property which he himself does not hold in the said property.
8. Mr. Moohanlal has submitted that the lands are mutated in the lames of the persons, whose heirs were party to the compromise decree. This is also a question of fact and cannot be decided in exercise of jurisdiction under Article 199 of the Constitution. The ratio of the judgments, on which Mr. Moohanlal placed reliance, leads us to the conclusion that if there is no dispute about the title of the land, in that case the Revenue Authorities have no jurisdiction to refuse the mutation in accordance with a decree of Civil Court on the ground that the suit was barred by time or decree had become barred by time or the decree passed by the Civil Court was not in accordance with the law. However, if the decree is not capable of execution for the reason that it is between the parties who had no right in law to enter into compromise in respect of the properties, for the reason that they were not owner of the properties, the Revenue Authorities ate justified in not mutating the record depriving the persons, who were not party to the decree, of their valuable rights and are shown as owners in the record of rights. These questions can be decided by the Civil Court and particularly the point that the persons, in whose names the lands are mutated in the record of rights, are bound by the compromise decree being predecessors-in-interest of the parties to the compromise. All these questions cannot be decided in this petition and therefore, the petitioner may pursue a remedy through Civil Court seeking clarifications on all the above points as well as execution of decree. The petition stands disposed of in the above terms.