' SYED HAMID ALI SHAH, J.---The petitioners through filing an appeal before Collector, Bhakkar challenged the sanction of Mutation No,410 attested on 29-12-1994. The petitioners attacked the sanction of mutation, on the ground that mutation was attested on the basis of decree, dated 21- 5-1977 in suit for possession. The decree is not capable of implementation unless executed through the Court; that the execution application was twice dismissed firstly through order, dated 10-5-1984 and secondly on 6-10-1985 by the Court and that no valid cause now exists in favor of the respondents.
2. The petitioners herein assailed the mutation and it's sanction in appeal before the Collector/AC.
The Collector/AC while accepting the appeal through order, dated 9-7-1996, cancelled the mutation. The appellate order was assailed by the respondents, in revision before Addl.
Commissioner, who through order, dated 26-2-1997, accepted the revision and set aside the order of the Collector. The petitioners then assailed order, dated 26-2-1997 in the second revision before Member Judicial-II, Board of Revenue. Learned Member Judicial-II, Board of Revenue, through detailed order, upheld the decision of Additional Commissioner passed in the revision. Order, dated 11-12-2004 of Member BOR, has now been assailed through the instant petition.
3. It is contended by learned counsel that mutation, dated 29-12-1994 was attested behind the back of the petitioners and the petitioners came to know about the impugned mutation on 6-6- 1995 when respondent No,1 recorded his statement to this effect, in a suit for possession, before the Civil Court. Learned counsel has submitted that the impugned orders, are based on misconception inasmuch as that the official in the revenue hierarchy, have failed to distinguish between adeclaratory decree and decree for possession. Learned counsel has submitted that right of the respondents has arisen consequent upon the decree in their favor, which stood extinguished when execution proceedings were not initiated within, the period of limitation. The rights so extinguished were laid to rest on dismissal of execution applications. Mutation cannot be based on inexecutable decree. Dismissal of second suit of the respondents sets the case of the petitioners at naught.
While referring to section 45 of the West Pakistan Land Revenue Act, 1967, it was contended that the impugned mutation has no legal sanctity as it is neither based on agreement/concurrence of the parties nor on the basis of valid decree.
4. I have heard the learned counsel for the parties and perused the material available on the record.
5. The question for determination before the courts below, was that mutation on the basis of decree can be attested or sanctioned; even in 'a case where the execution of such decree .Is not sought within the period of limitation. Learned appellate Court while relying upon the dictum laid down by the Hon'ble Supreme Court in the case of "Ali Ahmad and another v. Muhammad Fazal and another" (1972 SCMR 322), has drawn conclusion that Revenue Authorities cannot refuse sanction of mutation A on the ground of failure of the decree-holder to file execution application of the decree. The conclusion drawn by the Courts concurrently is not open to exception for various reasons, firstly, the decree in favor of respondent No,1 creates title, regardless of the fact that no application for execution has been filed by respondent No,
1. Section 48 bars execution after specified time but the .Rights of decree-holder in other respect are not effected. It has been held in the case. Of "Mst. Hussain Bibi v. Siraj Din" (PLD 1998 Lahore 548) that Limitation. Act merely bars the remedy or assistance of Court for execution of the decree but does not extinguish the right or title based on the decree. The conclusion drawn by learned Courts below are not open to any exception in the revisional jurisdiction, moreso, when the learned Court while passing the impugned judgment and decree has followed the dictum of law laid down by the Apex Court in the case of "Ali Ahmad and another v. Muhammad Fazal and Another" (1972) SCMR 322) where Hon'ble Court has observed as under:-- "He was entitled to get the mutation effected on the basis of the decree. Simply because it has barred by time, it has not lost its utility. In our opinion, the view of the High Court is correct that the Revenue authorities were under obligation to sanction mutation on the basis of the decree."
6. For the foregoing, .The concurrent findings of two Courts belowwhich are devoid of any illegality or of legal infirmity do not call for interference. This revision petition having no force is dismissed.