' HAMID FAROOQ DURRANI, J.---The appeal in hand has been filed against the order of learned Additional District Judge, I, Abbottabad passed on 2-3-2005 in Execution Petition No,1/10 of 2003.
Through the impugned order the learned executing Court has rejected the application filed by the judgment-debtors/appellants seeking an order requiring the decree holders/respondents to hand over the possession of an area measuring 1 Kanal, 1 Marla situated in Khasra No,4460/1 and included in the acquired land.
2. The facts relevant for the purpose of case in hand are that an area of 302 Kanals, 13 Marlas situated in Village Salhad, Khokar and Langra, Tehsil and District Abbottabad was acquired by the appellant/Corporation through the Land Acquisition Collector, Abbottabad. In that respect an Award was announced on 1-2-1984. Upon announcement of the said Award the decree holders land-owners filed reference/objection petitions which were decided finally in favour of the decree- holders by the august Supreme Court on 19-11-2001. The apex Court upheld the judgment and decree in appeal passed by this Court whereby the amount of compensation was enhanced to Rs,74,000 per Kanal for all kinds of land under acquisition. The acquired land also included an area of 18 Kanals, 11 Marlas in the ownership of respondents/decree-holders for which they received the amount of compensation as initially determined by the Collector. The decree-holders filed execution petition for the recovery of enhanced amount of compensation before the learned executing Court on 5-3-2002. It was on 20-9-2004 that the appellants/judgment-debtors submitted an application before the learned executing Court stating therein that an area measuring approximately 1 Kanal, 13 Marlas, out of Khasra No,4460/1, having been included in the acquired land through the Award, was still in possession of the decree-holders/respondents. The respondents though had received the initial amount of compensation but were reluctant to hand over the possession of the said portion of the acquired land. A simultaneous request was also made to the Land Acquisition Collector regarding the transfer of possession of the disputed area.
The Collector deputed staff for the purpose of demarcation/measurement of the acquired land and in that regard a report was duly submitted by the Revenue officials. The said report was also brought on the record available before the learned Executing Court.
3. The learned Executing Court, after hearing the parties in respect of the application for delivery of possession submitted the judgment-debtors, dismissed the same on 2-3-2005. While recording the findings of dismissal the learned Court held that the application was not entertainable. It was also directed that the appellants should file a separate suit for possession in the Civil Court in order to obtain possession of the requisite portion of the acquired land. Further, the appellants/judgment-debtors were ordered to make the payment of enhanced amount of compensation along with interest as per goshwara prepared by the Land Acquisition Collector, Abbotabad. Aggrieved from the said order the judgment-debtors preferred the instant appeal.
4. Arguments of learned counsel for the parties heard and record perused.
5. The provisions contained in section 26(2) of the Land Acquisition Act, 1894 provide that an Award made under Part III of the said Act shall be deemed to be a decree and the statement Of grounds of every such Award a judgment within the meaning of section 2, clause (2) and section 2, clause (9), respectively, of the Code of Civil Procedure, 1908. The provisions of the said Code pertaining to the execution of A decree including those contained in section 47 thereof would, therefore, be applicable mutatis mutandis in the matter pertaining to the execution of decrees and matters ancillary thereto in the cases of acquisition of land under Act I of 1894. The questions arising between the parties or their representative and relating to the execution, discharge of satisfaction of the decree would, therefore, be required to be determined by the Court executing such decree.
6. The rights to own and possess by the Government/acquiring department become clear with the issuance of notification under section 11 of the Land Acquisition Act, 1894 and deposit of compensation amount. The said rights are always free from all encumbrances and include the legal right to actual possession against all the persons in possession before the issuance of such Award. The mechanism of delivery of possession has also been provided in built in section 47 of the Act. A separate, suit for recovery of possession to acquired land or a portion thereof would therefore, not be required.
7. In the light of the above discussion it is found that the learned executing Court erred in holding through the impugned order that the application of the appellants was not entertainable and that they were required to approach the Civil Court for recovery of possession of disputed area in the acquired land through separate suit.
8. Resultantly, the appeal in hand is allowed. The matter is remanded to the executing Court. The learned Court, while exercising jurisdiction under the fore-noted provisions of law, shall decide the application dated 20-9-2004, filed by the judgment-debtors/appellants, on its merits. The learned Court shall be at liberty to order payment of the enhanced amount of compensation in respect of the land in issue at the appropriate stage. Parties are left to bear their respective costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.