M. Javed Buttar, J.--Relevant facts are that one Ali Bahadur Khan was the last male holder of land measuring 298 kanals 12 marlas situated in village Peero Shahi, Tehsil Fateh Jang, District Attock. It was an ancestral property and he was governed by custom. He was issueless. He transferred the said land in favour of his wife Mst. Sardar Khanum in lieu of dower through Mutation No, 387 dated 24.02.1962. Thereafter, she transferred a part of land measuring 20 kanals and 13 marlas in favour of Noora son of Oulia vide Mutation No, 822 sanctioned on 19.12.1963 and sold the remaining land i,e, 277 kanals 19 marlas in favour of the petitioner Muhammad Akbar Khan through Mutation No, 488 attested on 17.11.1967. The respondents as reversioners of the aforesaid Ali Bahadur Khan challenged the above mentioned alienation in favour of Mst. Sardar Khanum and further transfers by Mst. Sardar Khanum in favour of Noora and the petitioner through a regular suit claiming that the power of alienation of Ali Bahadur Khan was restricted and he could not have made gift of the whole of the ancestral land devolved upon him and that further transfers by Mst. Sardar Khanum were also of no consequence. Mst. Sardar Khanum had also died before filing of the suit. The learned trial Court vide its judgment and decree dated 28.03.1970 decreed the respondent's suit. In appeal the Hon'ble District Judge, Cambellpur, Attock vide his judgment and decree dated 15.09.1970 modified the decree of the trial Court and granted a decree in favour of respondents, for possession of 277 kanals and 19 marlas. It was held that the sale in favour of Noora through Mutation No, 822 dated 19.12.1963 to the extent of 20 kanals and 13 marlas was valid. Lahore High Court, Rawalpindi Bench vide its judgment and decree dated 19.04.1981 dismissed the second appeal (RSA 85 of 1971). This Court vide its order dated 14.11.1981 dismissed the Civil petition for leave to appeal.
Thus the judgment and decree passed by the trial Court as modified by the First Appellate Court was upheld/confirmed up to this Court.
2. In the execution proceedings, in compliance with the warrant of possession issued by the executing Court, Mutation No, 47 was entered on 14.07.1981 and attested on 05.01.1982. However, the Revenue Officer, while attesting the mutation, out of the property sold to petitioner, which had been decreed in favour of respondents, ordered that 1/4th was to be retained by the petitioner on the ground that widow Mst. Sardar Khanum could have competently sold 1/4th share which would have devolved upon her as heir of Ali Bahadur Khan.
Later on, when it was realized that this was not the intention of the decree finally passed in favour of the respondents, the execution mutation was reviewed on 28.10.1984 and whole of the land purchased by the petitioner was mutated in favour of the respondents. It was challenged by the petitioner through an appeal and the Collector Attock vide his order dated 11.05.1986 set aside the mutation proceedings and reverted the property back to the petitioner by holding that after insertion of Section 2-A in the West Pakistan Muslim Personal Law (Shariat) Act, 1962, the decree could not have been executed. The Additional Commissioner (Revenue), Rawalpindi Division, Rawalpindi vide his judgment dated 28.08.1986 dismissed the respondent's appeal. The Member, Board of Revenue, Punjab, Lahore vide his judgment dated 23.10.1994 dismissed the Revision Petition (R.O.R. No, 2557 of 1986) filed by the respondents. Their Review Petition No, 221 of 1996 was also dismissed vide judgment dated 28.02.2001 passed by Member, Board of Revenue.
3. Consequently, the respondents assailed the orders/judgments passed by Revenue Hierarchy through Writ Petition No, 1797 of 2001 in the High Court which was allowed vide the impugned judgment dated 08.03.2004 passed by an Hon'ble Judge in Chambers of Lahore High Court, Rawalpindi Bench. The judgments of the Revenue Hierarchy were set aside as being without jurisdiction and Mutation No, 47 as attested on 05.01.1982 was also set aside.
4. We have heard learned counsel for the petitioner at length and have also seen the available record with his able assistance. The decree passed in favour of respondents as modified by the appellate Court transferring whole of the land sold to the petitioner, in favour of respondents had attained finality as it was affirmed by the High Court and maintained by this Court. Therefore, .the Revenue Officer white attesting execution Mutation No, 47 on 05.01.1982 illegally ordered the retention of 1/4th share by the petitioner out of the property sold to him. This order was clearly beyond the decree and to said extent the mutation was without jurisdiction. Hence it was correctly reviewed on 28.101984 and the whole of the land purchased by the petitioner was mutated in favour of respondents. In the appeal filed by the petitioner, the Collector illegally held that the decree could not be executed because of Section 2-A of the West Pakistan Muslim Personal Law (Shariat) Act, 1962 and the Additional Commissioner as well as the Board of Revenue incorrectly, wrongly and illegally maintained the order passed by the Collector. It was not realized that Section 2-A of the above Act was inserted in the statute book on 01.08.1983 through West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance XIII of 1983 much after the decree passed in favour of the respondents as modified by the appellate Court had become final when RSA No, 85 of 1971 was dismissed on 19.04.1981 and CPLA was dismissed on 14.11.1981. Proviso to above said Section 2-A of the above Act reads as under:-- ".............................................. ..................................................
(a) ................................................. .................................................
(b) ................................................. .................................................
(c) ................................................. .................................................
Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decree".
In view of the proviso (reproduced above), it was a past and closed transaction and the Revenue Authorities could not have re-open the same because of the provisions of Section 2-A of the above Act.
5. The argument of the learned counsel for the petitioner that till then the actual physical possession had not been delivered to the respondents under the decree passed in their favour, has also no force. In execution of the decree, Mutation No, 47 was entered on 14.07.1981, warrant Dakhl (possession) was issued on the said date. The said mutation was attested on 05.01.1982. Since mutation was attested incorrectly and beyond the decree, an application for review was filed. It was granted on 13.10.1984 whereafter the review mutation was attested on 28.10.1984. The decree of the trial Court stood executed on 05.01.1982, after pronouncement of the judgment of this Court on 14.11.1981. Any correction in the allotted shares by acceptance of review petition did not re-open the past and closed transaction on the ground of non-delivery of actual physical possession.
Admittedly "Dakhl Malkana" was given to the respondents on 14.07.1981. On the passing of the decree as modified by the Appellate Court, the respondents became co-sharers in the suit property alongwith Noora in whose favour, the sale of 20 kanals and 13 marlas was held to be valid.
Thus, only joint possession could be delivered as the property was not susceptible of physical possession. The decree in favour of the respondents stood executed through sanction of mutation, delivery of possession by way of "Dakhl Malkana" before the enforcement of Section 2-A of the above Act on 01.08.1983.
Even otherwise, the delivery of actual physical possession was not necessary to make the decree in favour of the respondents as past and closed transaction in terms of proviso to section 2-A of the above Act.
In view of the above mentioned, we find no merit in this petition which is dismissed. Leave refused.