' JAWWAD S. KAHWAJA, J.- The petitioners/defendants are the L.Rs. Of one Mehar Din. They impugn the appellate judgment and decree dated 29-1-2001, whereby the decree of the learned trial Court dated 29-11-1997 was set aside and the suit filed by Dilshad Ali respondent/ plaintiff seeking specific performance ' of agreement (Exh.P.2) dated 8-6-1992 was decreed.
2. The dispute between the parties relates to land measuring 1 Kanal, 13 . Marais, 4-1/2 Sirsahis. -It is the case of the respondent/plaintiff that the said land was evacuee property which came to vest in the Government and through transfer order (Exh.P.3) dated 11-5-1983 the same was transferred to Dr. Muhammad Aslam (respondent No.2/defendant). The transfer order (Exh.P.3) merely describes the property transferred as Plot No. 262-D Noorpur Thai. The area of he plot or its metes and bounds have not been given in the transfer order.
3. Initially, Dilshad' Ali respondent/ plaintiff filed a suit against Dr. Muhammad Aslam only. The suit was filed approximately six weeks after the agreement (Exh.P.2). During the pendency of the suit, Mehar Din (predecessor-ininterest of the petitioners/defendants) filed an application under Order I, Rule 10, C.P.C. Praying that he be impleaded as a defendant. This application was allowed, whereafter Mehar Din file a written statement claiming that he was owner of the suit-land as per Revenue Record and had been in possession thereof for a period of 40 years preceding the date of the written statement. Respondents Nos. 4 and 5, namely, Iqbal Hussain and Sabir Hussain sons of Fateh Sher also filed an application under Order I, Rule 10, C. P. C. And were impleaded as ' defendants. They also filed a written statement but have not impugned the appellate judgment and decree dated 29-1-2001. As such, the only contest in the present case is between the * petitioners (L.Rs. Of Mehar Din) and Dilshad Ali respondent/plaintiff. Here it may be noted that Dr. Muhammad Aslam (respondent No. 2) has been proceeded against ex parte vide order dated 11-2- 2005.
4. The learned Appellate Court has ,in its judgment, come to the conclusion that Plot No.262-D, Noorpur Thai in respect of which the respondent/plaintiff seeks specific performance, has . Not been identified through metes, and bounds either by producing the relevant record of 4he Settlement Department or through oral testimony. It is in these circumstances that the learned appellate Court has held as under:- "Any question relating to identification, demarcation and delivery of such property under a decree of the Court can be looked into properly by the executing Court under section 47 of C.P.C. Any findings on location, area and demarcation of plot in dispute in this judgment would absolutely pre-empt the findings of the executing Court if the need arose. As such issue No. 7 being unnecessary is hereby struck off." . .
5. I have heard learned counsel for the parties today and had also heard them on an earlier the date of hearing i.e. 11-2-2005. It is clear to me after hearing learned counsel and also going through the impugned appellate judgment that the crucial issue on which the parties are in contention, was the identity of the suit property. This issue unfortunately has not been addressed by the learned appellate Court and. The parties have been put into the disadvantageous position of agitating this pivotal issue before .Court under section 47, L the cutting C.P.C.
6. At this juncture, a most significant aspect of the case needs to be noted. Dilshad Ali respondent/plaintiff merely seeks a decree for specific performance of the agreement (Exh.P.2). It is his case that he has already paid the entire consideration to the seller Dr. Muhammad Aslam and' is in possession of the land in dispute. By way of additional relief, he has sought an injunction to restrain the petitioners and the respondents Nos.4 and 5 from interfering in his possession. It is, thus, clear that the respondent/plaintiff would only be entitled to specific performance of the land which is in his possession. The identity of the said land can easily be determined. Learned counsel for the petitioners states- that the petitioners do not have any objection to the passing of a decree for specific performance in favour of Dilshad Ali respondent/plaintiff, in respect of the land .Which is in his possession.
7. On the previous date of hearing i.e 22-3-2005, Dilshad Ali respondent/plaintiff and Sagheer Ahmad son of Mehar Din deceased were present. With their concurrence, the President of the District Bar Association, Khushab, namely, Mr. Habib Nawaz Tiwana, Advocate, was appointed as cal commission with the following mandate:-
(a) to identify through metes and bounds the area which Dilshad Ali respondent/plaintiff claims to be in his possession pursuant to the agreement (Exh.P.2).
(b) to prepare a site plan of the said area setting out the length of each side of the aforesaid property and also identify the owners/occupants of adjoining properties.
8. The learned Local Commission has submitted a report dated 23-5-2005. Learned counsel representing Dilshald Ali has certain objections to the report. In the circumstances, it is not appropriate for me to consider the report without examining the objections of Dilshad Ali.
9. However, considering that the crux of the controversy between the parties, which has been noted above and which was required to be adjudicated upon by the learned Court below on the is of available evidence, has been left for adjudication by the executing Court under section 47 C.P.C.
This is not proper application of the law. The controversy has to be resolved by the trial Court arid the appellate Court. It is only the execution of the decree which falls within the domain and competence of the learned executing Court.
10. In the foregoing circumstances, the impugned appellate judgment and decree dated 29-1-2001 are set aside and the case is remanded to the learned appellate Court, for decision afresh on all issues.
11. The report submitted by the local commission and any objections thereon shall also be considered by the learned appellate Court. Since the parties are represented, they are directed to appear before the learned District Judge, Khushab on 27-6-2005 on which date the learned District Judge may either hear the appeal himself or entrust it to a learned Additional District Judge for decision.