' TALAAT QAYUM QURESHI, J.---Since all the three revision petitions (C.R. No.30 of 2006, C.R. No.31 of 2006 and C.R. No.1440 of 2005) have arisen out of the same judgment/order, therefore, I shall dispose of all through this single judgment passed in C.R. No. 1440 of 2006.
2. Abdul Wahab, respondent filed Suit No.318/1 on 4-12-2000 for declaration and possession against respondents Nos.24 to 26 and 28 in the Court of learned Civil Judge/Illaqa Qazi, Samar Bagh. The suit was resisted by the abovementioned respondents/defendants. The learned trial Court after recording evidence and hearing counsel for the parties, decreed the suit in favour of Abdul Wahab plaintiff vide judgment and decree dated 23-2-2001.
3. The defendants of the said suit (now respondents Nos.24 to 26 and 28) filed an appeal before learned District Judge, Dir at Timergara, which was dismissed vide judgment and order dated 10-7- 2002.
4. The said defendants filed Revision Petition No.713 of 2002 before this Court. The matter was compromised and it was agreed between the parties that the decree passed by the learned trial Court be modified in the terms of compromise deed Exh.PHC-1 and the revision petition be decided accordingly, therefore, the decree passed by the learned trial Court was modified in terms of compromise and the revision petition was disposed of vide order' dated 15-9-2003.
5. The decree-holder filed execution petition before the executing Court. As per the compromise which was placed on file of the civil revision as Exh.PHC-1, the parties also effected compromise before the executing Court by distributing the property into 3 equal shares. Joint statements of the parties was recorded in this regard by the executing Court.
6. During the pendency of the executing proceedings, after the compromise, the decree-holder and judgment-debtors made a joint application to the executing Court for partition of the decretal property for which the learned executing Court appointed Tehsildar, Samar Bagh as a Local Commission for partitioning the decretal property. The property in possession of Inayatullah, the petitioner in C.R. No.30 of 2006 was also included by the Local Commission, therefore, the petitioners Inayatullah and 20 others filed an Objection Petition No.6/11 ' on 13-1-2004.
7. The learned executing Court once again appointed Tehsildar, Samar Bagh as Local Commission on 12-3-2004 and after formulating some points asked him to submit a detailed report after spot inspection. Tehsildar, Samar Bagh inspected the spot and submitted his report to the executing Court on 6-4-2004.
8. The petitioners as well as respondents Nos.1 to 23 again filed objection to the report of the Local Commission upon which the Commission was examined by the Court and the objections raised were rejected. Consequently, the report of the Local Commission was accepted/confirmed.
However, the learned executing Court accepted both the objections filed by petitioners as well as respondents Nos.1 to 23 and set aside the judgment and decree vide order dated 29-9-2004.
Parties were directed to establish their title through civil suit.
9. Respondents Nos.1 to 23 Nowsherwan and 22 others filed an Appeal No.34/I 2 on 24-11-2004 whereas Fazal-eRabi and others filed Appeal No.85/13 on 27-10-2004 in the Court of learned District Judge/Izafi Zilla Qazi, Dir Camp Court, Samar Bagh both appeals were accepted through common judgment dated 26-10-2005 whereby the order dated 29-92004 was set aside. The objection petition filed by respondents Nos.1 to 23 were treated as applications under section 12(2), C.P.C. And decree dated 23-2-2001, document dated 13-4-2003 and compromise dated 3-5-2003 were set aside. Being aggrieved with the said judgment/order of the learned District Judge, the petitioners have filed Revision Petitions Nos.30 of 2006 and 31 of 2006, whereas Nowsherwan and others filed Revision Petition No. 1440 of 2005.
10. Mr. Saadullah Jandoli, Advocate, representing petitioners in C.R. Nos.30 of 2006 and 31 of 2006 argued that Inayat Khan had prolonged litigation with the predecessor of respondents Nos.1 to 23 before the Federal Land Commission and august Supreme Court of Pakistan and consequently on the basis of the orders passed by the competent Courts he was handed over the possession of the suit property. The site-plan of the property prepared by the plaintiff handed over to the Inayat Khan has been placed on file which is knows as "Muhammad Banda". The property handed over to Inayat Khan was not the subject-matter of the suit, hence the same could not be included at the time of partition by the Local Commission. It was also argued that the Local Commission had in clear terms mentioned in his report that the property claimed by Abdul Wahab in his suit was not in existence at the spot.
11.It was further argued that the learned executing Court as well as Appellate Court while treating the objection petition as application under section 12(2), C.P.C. Have erred in law. In fact the Courts below should have treated the objection petition as suit as envisaged under Order XXI, rule 103, C.P.C. But the same was not done, hence an illegality was committed. Reliance in this regard was placed:- ' 1992 SCMR 1908, PLD 1983 SC 155, 1982 SCMR 90, 2003 CLC 10, 1986 CLC 2600, 1986 MLD 2997, 1904 CLC 2255, 1984 CLC 2935, PLD 1983 Lah. 234 and PLD 1981 Lah.289.
12. In C.R. No.1440 of 2005, Mr. Khalid Khan, Advocate, learned counsel representing the petitioners and respondents Nos.1 to 23 in C.R. No.302 of 2006 and respondents Nos.6 to 28 in C.R. No.31 of 2006 argued that the petitioners were the owners of property known as Spin Awar and Muhammad Banda except the "Seri" land of Muhammad Banda and they were in lawful possession since the time of their forefathers and the said property had nothing to do with the suit property but the same was wrongly included by the Local Commission for partitioning the property.
13. It was also argued that the petitioners have made huge construction over the suit property, improved the property by making water channels etc.
14. It was also argued that the only remedy available to the petitioners was to have filed an objection petition which they filed but the Courts below erred in treating the same as application under section 12(2), C.P.C. In fact the objection petition should have been treated as the suit, evidence should have been recorded and then objection petition should have been decided on merits in accordance with law.
15. M/s Shahabuddin Burq and Javed Ali Khan, Advocates, representing respondents Nos.24, 25, 27 and 28 in C.R. No.30 of 2006, respondent No.4 in C.R. No.31 of 2006 and respondents Nos.1, 2 to 5 and 12 in C.R. No.1440 of 2005 argued that Abdul Wahab the plaintiff was owner of the property known "Jan Muhammadi Seri" and he had filed a suit about the land situated therein which was decreed upto this Court in his favour.
16. It was also argued that the contents of the objections petitions would show that in substance it was not objections petitions but were applications under section 12(2), C.P.C. And the Court below have rightly treated them as such, therefore, no illegality whatsoever has been committed by the Courts below.
17. I have heard the arguments of the learned counsel for the parties and perused the available record.
18. So far as C.R. No 30 of 2006 and C.R. No.31 of 2006 are concerned, the same deserve outright dismissal because the petitioners did not file any appeal before the competent Court against the judgment/order passed by the learned executing Court on 29-9-2004. In the concluding paragraph of the impugned order/judgment, it was in clear terms mentioned that the objection petition was treated as application under section 12(2), C.P.C. And was decided as such. If the petitioners were aggrieved of treatment of their objection petitions as 12(2), C.P.C. Application by the learned executing Court, they should have moved the appellate Court for redressal of their grievances which they failed to do. In a case of Muhammad Ibrahim and others v. Group Captain Salahuddin (1987 SCMR 218) it was held:-- "On the question of remedy availed of by the appellants, Mr. Ghulam Dastgir, Advocate, counsel for appellant No.2, admitted at the bar that since the appeals were time-barred, therefore, the Settlement Commissioner was approached on revisional side. This obviously could not be done because the right of appeal, which is a substantive right, was available to the appellants, therefore, under the law it was required of them to have first availed of the remedy of appeal, the question of limitation notwithstanding. Since the appellants have failed to exhaust the remedy of appeal first, the revisions were incompetent and was rightly held so by the Courts below."
' Similarly in S. Azizul Hassan and another v. Malik Ghulam. Muhammad (1971 SCMR 123) it was held:- - "The view thus arrived at was "that the trend of judicial opinion is now to the effect that if a decree or an order, which is in the nature of a decree under the Code of Civil Procedure, has been passed by the. Court of first instance, and it is appealable under the Code, then whether the appeal lies immediately to the High Court or only after another appeal has been taken before the District Judge, the revision would not be competent."
' Same view as taken in Khawar, Ali Shah and 2 others v. S. Murtaza Shah and others (PLD 1969 Pesh.
203).
19. Since the petitioners of C.R. No.30 of 2006 and C.R. No.31 of 2006 had failed to avail remedy of appeal, therefore, keeping in view the above dictum laid by the august Supreme Court of Pakistan, it is held that these revision petitions were not maintainable. C.R. No.30 of 2006 and C.R. No.31 of 2006 are, therefore, dismissed.
20. So far as C.R. No.1440 of 2005 is concerned, the claim of the petitioners in this case is that they are owners in possession of property situated in Muhammad Banda which is all together a separate property than that of Jan Muhammad Seri "land". Although the decree passed by the learned Courts below was specific as boundaries of the decretal property have been mentioned therein but the Local Commission has also submitted his report which was later on confirmed in which the boundaries of Jan Muhammad Seri were given but the petitioners claimed that their property which was entirely different property has been included in the Local Commission's report which could not be done. The learned executing Court in fact should have decided the objection petition while treating the same as a suit as envisaged under Order XXI, rule 103, C.P.C. But it erred in converting the same into application under section 12(2), C.P.C. Which of course was not maintainable before the said Court because the decree had been eventually modified by this Court as per the compromise executed by and between the parties of the said suit vide order dated 15-9-2003 and application under section 12(2) if any could lie with this Court. Since the learned executing Court as well as Appellate Court has failed to exercise jurisdiction vested in them, therefore, I accept the Revision Petition No.1440 of 2005 and set aside the impugned orders/judgment and remand the case back to the learned executing Court for determining as to whether the property belonging to the petitioners of C.R. No.1440 of 2005 has also wrongly been included by the Local Commission for paftition purposes or not. With this specific question, another Local Commission be appointed and after obtaining the report and after recording any other evidence which the parties may adduce in their support, the objection petition be decided on merits within a period of 3 months. There shall be no orders as to costs.