1. GHULAM MUSTAFA MUGHAL, J.---The above captioned appeal is directed against judgment and decree of the learned Additional District Judge, Dudyal, dated 31-12-2003, whereby judgment and decree of Civil Judge, Dudyal, has been maintained.
2. Precise facts forming background of the present appeal are that on 19-3-1965 a pre-emption decree was obtained by one Fazal Elahi, predecessor of appellants herein in respect of land comprising Khasra No.2/min measuring 2 Kanals, 5 Marlas, Khasra No.501 measuring 1 Kanal, 5 Marlas and 502 measuring 11 Marlas in all 4 Kanals and 1 Marla situated in village Batroi Tehsil Dudyal. He took no step for execution of the decree within prescribed period of limitation as provided by Article 182 of the Limitation Act. For the first time, he filed an application for execution of the decree on 23-9-1971, which was dismissed by the learned Sub-Judge for being filed after prescribed period of limitation vide his order dated 30-7-1972. On appeal, the order was confirmed by the District Judge,. Mirpur, on 30-1-1974. Second appeal of the decree-holder also met the same fate and was dismissed by this Court on 20-1-1975. After about almost 15 years Mutation No.16 was sanctioned on the basis of the said decree. Fazal Elahi, decree-holder and two others again brought a suit in respect of the same land on the basis of title in the Court of Sub-Judge Dudyal on 28-9-1998. It was averred in the plaint that plaintiffs are' owners of the above-mentioned land on the basis of the decree, dated 19-3-1965. It was claimed that the possession of the suit-land was delivered to the plaintiffs on the basis of compromise after the rejection of the execution application, however, defendants were allowed to cultivate the land as the plaintiffs were outside the country. It was claimed that defendants, now claim title in the suit-land and have refused to hand over the possession of the same. The suit was resisted by the defendants by filing written statement. It was pleaded by them that the suit is not maintainable on the ground of res judicata. It was further stated that the suit is time-barred. The suit was also contested on the ground that the decree, dated 19-3-1965 confers no title to the plaintiffs as the same has become inoperative and ineffective for being not executed within the prescribed period of limitation. It was claimed that subsequent suit for possession is also barred in view of judgment of this Court dated 20-1-1975 and under section 47 of the Code of Civil Procedure.
3. Raja Hassan Akhter, Advocate, appearing for the appellants, vehemently contended that neither the provisions of section 11 nor section 47 of the C.P.C. Are attracted in the present case and conclusion reached by the subordinate Courts is illegal, erroneous and capricious, hence, liable to be set aside. The learned Advocate further contended that the possession was handed over to the predecessor of the appellants on the basis of a compromise, therefore, subsequent suit for possession was very much competent and has no nexus with the earlier execution application. The learned Advocate contended that suit for cancellation of the mutation was not competent before the Civil Court on the ground of bar of jurisdiction as contained in section 172 of the Land Revenue Act, 1967. It was argued by the learned Advocate that since section 28 of the Limitation Act and Article No.144 had been deleted from the statute, therefore, title of the plaintiffs will remain unaffected and position of the defendants is that of an illegal occupant, hence, decree for possession of the suit-land was liable to be granted. Reliance in this regard was placed on Maqbool Ahmed Khan's case 1991 SCMR 2063.
4. Ch. Muhammad Sabir, Advocate, representing the respondents controverted the arguments contending that the conclusion reached at by the learned Sub-Judge and confirmed by the Additional District Judge is unexceptional which needs no interference. The learned Advocate maintained that on the basis of principle enumerated in sections 11 and 47 of the Civil Procedure Code, subsequent suit on the basis of pre-emption decree which remained unexecuted was barred. The learned Advocate in support of his submissions placed reliance on the following cases:--
(1) Moazam and others v. Panah and 9 others PLD 1958 Lah. 147; (2) Mst. Reham Noor and others v.
5. Wazir Muhammad and others PLD 1955 Pesh. 56; (3) Ramanand and others v. Jai Ram and others AIR 1921 All. 369.
6. I have heard the learned Advocates for the parties and have given my anxious thought to the proposition involved in the case. Before proceeding further I would like to discuss the case-law referred to and relied upon by the learned Advocates for the parties.
7. "We have given our best consideration to the question before us and we are of the opinion that, both on authority and on a correct interpretation of section 47 of the Code of Civil Procedure, the present suit was not maintainable. Stripped of all unnecessary details, the relief claimed by the plaintiffs, in substance, amounts to asking for the fruits of a decree which they are unable to execute owing to lapse of time. The suit, in effect, does raise a question "relating to the execution, discharge or satisfaction" of the former decree and cannot be determined by a separate suit. The plaintiffs' claim in reality is that they obtained a decree for possession of this property, the defendants have not given them possession in spite of the said decree and therefore, the Court should compel the defendants to carry out their obligation under that decree. In our opinion such a suit falls clearly within the purview of section 47, and if it did not, we fail to see what other form of suit would."
8. PLD 1952 Lah. 82 Mr. Justice S.A. Rehman's, Judge (as he then was), held that previous decree for possession having been allowed to become bar by time, the second suit for possession could not be instituted on the face of the provisions of section 47, C.P.C.
9. Almost same view is taken by a lean-led Judge of Dhaka High Court in Janada Sundari Nandi's case PLD 1958 Dhaka 198. However, the Lahore High Court in Ali Ahmed's case PLD 1973 Lah. 207 observed that the suit for possession on the basis of pre-emption decree was competent. The facts of the case were that a pre-emption suit was compromised between the parties and the payment in terms of compromise was made by the plaintiff/decree-holder but he took no steps for execution of the decree. He made an application to the Revenue Assistant for sanctioning the mutation on the basis of the said decree. The mutation was sanctioned giving effect to the decree of Civil Court. The defendant of the suit sought review of the mutation on the ground that since respondents had not applied within the prescribed period of limitation for execution of the decree of the Civil Court, the same had' become inoperative and lost its binding effect. The matter was referred to the Collector for his permission to review the mutation. The Collector granted the requisite permission, resultantly, the mutation sanctioned on the basis of the decree was cancelled. On appeal the Collector remanded the case to the Assistant Collector, Grade-II, for fresh decision after hearing the parties. The Assistant Collector, again cancelled the said mutation. The order was challenged in appeal before the Collector who dismissed the same. The second appeal was also dismissed by the Additional Commissioner and a further revision, of the decree-holder was also dismissed by the Board of Revenue. However, a writ petition was accepted by the High Court and the order whereby mutation was sanctioned, was restored (PLD 1974 Lah. Note 56). The matter was again challenged through a letter patent appeal and it was concluded by an Honourable Division Bench that the suit for possession on the basis of pre-emption decree was competent, The learned Judges opined as under: ".... A person when he files a suit to pre-empt the sale, he does not do so in the exercise of any right in the property but on the basis of his statutory right to pre-empt the sale. He, therefore, does not have any existing right in the property when he institutes the suit. It is only when the decree is passed and the payment is made that the decree becomes one in his favour and he becomes vested with the property. The decree in a pre-emption case is passed in accordance with the provisions contained in Order XX, rule 14, C.P.C. And its relevant portion reads "the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment". Thus, it is on the payment of the decretal amount that the title accrues to the, pre-emptor and not on the delivery of the possession. It is, indeed, mentioned that the defendant shall deliver the possession of the property to the plaintiff but the fact that the possession is not delivered does not in any way affect the vesting of the property in the pre-emptor. It only means that on payment of purchase-money the pre-emptor gets title in the property and he thereby becomes entitled to its possession from the vendee."
10. The learned Judges again observed at page 213 of the report as under: - "In order to appreciate this contention we must refer to the scope of the Limitation Act. It contains provisions both about limitation ,and prescription. The difference between the limitation and prescription is that limitation bars the remedy but does not extinguish the right but under the law of prescription the right itself may be extinguished. It is well-settled that the rule of limitation is a rule of procedure, a branch of the adjective law, and does not either create or extinguish rights, except in the case of acquisition of title to immovable property by prescription under section 28, Limitation Act. After the expiry of the period prescribed for filing a suit to recover the possession of a property, the title of a person is extinguished under section 28 and the same is created in favour of the person in possession, however, under the law of limitation it is only the remedy by way of a suit that is barred, but the right itself continues to exist; and if there is some other remedy by which that right can be enforced, the Limitation Act cannot come in the way." (Underlining is mine).
11. The same view was taken in Muhammad Saddiq's case AIR 1946 Lah. 322. The relevant observation is as follows:-- "A right of pre-emption can be said to have been effectively exercised or enforced only when the pre-emptor has become actually substituted for the vendee in the original bargain of sale. Where the pre-emptive right is sought to be enforced by means of a suit, such substitution takes place and the pre-emptive right is deemed to have been exercised or enforced only when the price has been paid by the pre-emptor into Court in compliance with the decree passed in his favour. When the right is sought to be enforced by means of a private treaty out of Court the substitution of the pre-emptor for the purchaser takes place and the pre-emptive right is exercised or enforced when the price is either paid or tendered to the purchaser and he has actually surrendered the bargain in favour of the pre-emptor. There can be no enforcement of the pre-emptive right except by complete divestiture of the vendee's title and the vesting of such title in the pre-emptor."
12. This judgment was again followed by the learned Single Judge, in Muhammad Rafique's case 2003 YLR 1434. The facts of the case were almost same, therefore, need not be reproduced. The learned Judge while following the rule of law laid down in Ali Ahmed's case has also considered Mst. Rehim Noor's case, (supra). For proper appreciation of the controversy paras.8, 10 and 11 are reproduced as under:-- "8. From the plain reading of the above provisions of law, it reveals that this section does not bar to avail the remedy but only regulates the Forum for the enforcement of rights so as to channelized all matters relating to the execution, discharge or satisfaction of the decree to the Executing Court.
13. The bar contained in section 47, C.P.C. Is only attracted to the cases where execution proceedings have been filed for the satisfaction of the decree and if the execution proceedings are pending then no fresh suit shall be filed and all questions would be determined by the Executing Court, wherein the party may file objections. The object of this section is to afford speedy relief to the parties in the matters arising out of the execution of a decree.
10. As soon as the decree is passed in favour of the plaintiffs-petitioners, the defendant-respondent would be deemed to be an illegal occupant of the property and if the decree is implemented in the Revenue Record then the status of the defendant-respondent would be deemed to be as a tenant under the plaintiffs-petitioners. It has been observed by the superior Courts that the Revenue Officers are under legal obligations to implement the decree of pre-emption in the Revenue Record even if the period of execution had expired and the time limit would not be a bar for implementing the decree in the Revenue Record. The provisions of section 47, C.P.C. Are not attracted to the facts of the present case as the plaintiffs-petitioners did not file execution proceedings after the lapse of a period of about eleven years of passing of the decree of pre-emption. The suit for possession has been filed by the plaintiffs-petitioners within a period of twelve years and they could not be non- suited merely because they defaulted in filing the execution petition for the satisfaction of the decree of pre-emption. The suit for possession under section 8 of the Specific Relief Act can be filed on the basis of title and the petitioners-plaintiffs have already obtained the title of the suit land.
14. The defendant-respondent in his written statement did not deny the decree of possession passed in favour of the plaintiffs. He also did not specifically deny the averments of the plaint. However, he took the stand that he was owner in possession of the suit property but he did not place on record any proof to establish his ownership with regard to the suit property.
11. Three legal remedies were available for the plaintiffs/decree holders i.e. (i) to file execution petition for the implementation of the decree of possession, (ii) to apply to the Revenue Officer for implementation of the decree in the Revenue Record in their favour, (i.e) to file a suit for ejectment against the defendant-respondent under the Punjab Tenancy Act, as after passing of the decree of pre-emption in favour of the plaintiffs-petitioners, the defendant-respondent either had acquired the status of an illegal occupant or as a tenant under the decree-holder and (iv) to file a suit for possession on the basis of title which he acquired through decree."
15. D.V. Chitaley, in his commentary on C.P.C., has thrown light on the scope and object of section 47 in the following words:-- "This section, like section 11, has been enacted for the purpose of checking needless litigation and with a .View to enable parties to obtain adjudication of questions relating to execution without unnecessary expense or delay, which a fresh trial might entail. The rule of res judicata deals with the finality of a decision of a Court on matters actually or constructively in issue before it and bars a fresh trial of any kind of such questions in subsequent proceedings between the parties; while section 47 deals with the enforcement of such decisions and enacts that the questions specified in the section shall be tried in execution and not by separate suit. In other words, where there is an executable judgment, no suit lies for the enforcement thereof, or for the determination of the questions specified in the section."
16. It is one of the settled proposition of law that adjudication of the questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution discharge or satisfaction of the decree, shall be determined by the Court executing the decree and separate suit would be barred, but I am of the considered view that in light of the pleadings of the parties no question relating to the execution of the decree, dated 19-3-1965 was involved. Therefore, both the subordinate Courts fell- in error in applying section 47 of the Code of Civil Procedure to the present controversy. In the present case plaintiffs took a categoric stand that they obtained possession from the respondents on the basis of compromise and thereafter handed over the same to them as they were out of the country. It was further claimed that they demanded possession of the suit-land from the defendants in 1997 which was refused by them, thus, the present suit for possession on the basis of fresh cause of action has been filed and section 47 was not at all attracted as the executing Court after disposing of the execution application has become functus officio. The second application was not competent after the decision of the earlier one. A reference can be made to Kalu Maigi's case PLD 1967 Dacca 148. In this case a decree-holder obtained the possession of the decreed property in execution of a decree but subsequently pending appeal against the original decree, dispossessed therefrom. It was held that remedy of such a decree-holder lies not in fresh execution proceedings with regard to the original decree but by way of fresh suit. The other ground on which the learned trail Court as well as first appellate Court dismissed the suit of the plaintiffs/appellants was that after rejection of the execution application the decree become ineffective and inoperative, does not vest any title in the decree-holder. This approach of the learned Courts is derogatory to the rule of law laid down in the precedents mentioned hereinabove. A decree in a suit for pre-emption is to be drawn in accordance with Order XX, rule 14, which is a special provision. The relevant provisions of the said Order reproduced as under: "Order XX, rule 14.--- (1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall---
(a) specify a day on or before which the purchase money shall be so paid; and
(b) direct that on payment into Court of such purchase-money, together with the costs (if any) decree against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs."
17. A perusal of the above reveals that title accrues to the plaintiffs on the day when the payment is made in compliance with the order of the Court and delivery of the possession was not a condition precedent to constitute a valid title nor the non-delivery of the possession in any manner affects the same.
18. If it is assumed that possession of the suit-land remained with the judgment-debtor since dismissal of the execution application even then they have not claimed adverse possession over the suit-land and the relevant provisions in the Limitation Act either section 28 and Article 144 have been deleted in light of the judgment of the Shariat Appellate Bench of apex Court of Pakistan in Maqbool Ahmed Khan's case 1991 SCMR 2063. The counter-suit has been filed by the defendants/respondents only on the grounds that as the decree remained un-executed, thus, has become inoperative and confers no title on the plaintiffs, hence, mutation could not be sanctioned on the basis of such decree. This ground was not available to the defendants as they have been replaced by the pre-emptor the moment the decretal amount was deposited in the Court. This fact is not denied by the other side rather receipt of the amount is admitted by them, hence they have no locus standi to file the suit for declaration and cancellation of mutation which has been sanctioned on the basis of decree of the civil Court. In presence of a valid title of the plaintiffs, the nature of possession of the respondents is no more than that of an illegal occupant and their right of possession cannot be protected specially so when they have received the amount. A lawful owner is entitled to recover the possession and a party who is trying to back-out from the final decree after pocketing the decretal amount cannot be allowed to take undue benefit of the regulatory provisions of the C.P.C. And the Limitation Act. A usurper has to restore the possession to the lawful owner in view of the dictum of the Shariat Appellate Bench referred to hereinabove. In view of the conclusion recorded by the learned Shariat Appellate Bench at page 2081 of the report it is enjoined upon the usurper under the Sharia Law to restored the possession to the real owner on demand and on refusing the same, the Court is bound to grant relief to a lawful owner. It is also noticed that the vendor despite decree in favour of the pre-emptor and after receiving the decretal amount has transferred the land through a gift which is void ab initio because on making the payment in the Court the title of the vendor on the basis of sale-deed stood extinguished and thereafter he was not entitled to alienate the suit-land mere on the ground that decree became inoperative on the ground of limitation.
19. The upshot of the above discussion is that accepting the appeal suit filed on behalf of the plaintiffs/appellants is hereby decreed and they are declared entitled to the possession of the suit- land whereas the counter-suit filed on behalf of the respondents stands dismissed.