MAULVI ANWARUL HAQ, J. --- On 26.3.1976 the respondents filed a suit against the petitioner for declaration that they are only legal heirs of Mst. Bai and that mutation No. 11 attested on 3.12.1961 has wrongly been sanctioned. They also claimed permanent injunction restraining the petitioners from interfering with the possession and enjoyment of the suit and qua the share of Mst. Bai inherited by them being part of joint holding. The suit was contested. It was dismissed by the learned Trial Court on 20.1.1985. First appeal filed by the respondents was dismissed by a learned Additional District Judge IV, Okara, on 29.5.1986. C.R. No. 1934-D/1986 was allowed by this Court on 4.12.2000 and suit of the respondents was decreed as prayed for. CPLA filed by the petitioners was dismissed by the Hon'ble Supreme Court of Pakistan on 22.11.2000.
2. On 5.11.2000 an execution petition was filed praying that the decree be incorporated in the revenue records and further the possession of the suit land be got delivered. On 23.1.2001 the petitioners filed an objection petition alongwith same an application for temporary injunction was filed for recalling the warrants of possession. This application was dismissed on 30-5 2001. Against this order the petitioners filed an appeal. It was allowed by a learned Additional District Judge, Okara, on 17.9.2001, who observed that it was declaratory decree and warrant of possession, cannot be issued. However, an order can be passed for correction of revenue record in accordance with said decree. Learned executing Court was accordingly directed to decide the execution petition in accordance with law. Thereafter somewhere in March, 2002 the respondents filed an application under Section 144, CPC. They narrated the history of litigation as stated above. It was added that after the decision of the Trial Court the petitioners changed the possession of the predecessor-in- interest of the respondents. With this averment they made a prayer that mutation No. 11 challenged in the suit be got cancelled and fresh mutation in accordance with the decree be got attested and that the possession that was changed under the decree of the Trial Court be restored to the respondents. This application was allowed by the learned executing Court on 4.4.2002 while revision has been dismissed by a learned Additional District Judge, Okara, on 20.2.2003.
3. Learned counsel for the petitioners contends that the impugned orders are without lawful authority inasmuch as a case for restitution either under Section 144, CPC or the general principles underlying the same is not made out at all, as admittedly no decree was passed in favour of the petitioners in execution, whereof the possession was obtained, which could be restituted by the learned executing court. Learned counsel for the respondents, on the other hand, supports the impugned order with the contention that since it was dismissal of the suit by the learned Trial Court which prompted the petitioners to take over the possession, the restitution has been lawfully ordered. He relies on the cases of Fazal Karim v. Rawal Malik and another (1998 SCMR 1200), Abdul Bari v. Muhammad Rasheed Khan and 7 others (1995 SCMR 851), Ziaullah v. Muhammad Hussain Afzal (2003 CLC 1321) Barkat A.I v. Additional District Judge (2001 MLD 1044) and Mst. Sultan Bibi and 25 others v. Gul Baran and others (PLD 1999 Quetta 56).
4. I have gone through the copies of the relevant records produced by both parties. The nature of the suit and history of the litigation has already been stated. There is no manner of doubt in my mind that the petitioners had initiated litigation as plaintiffs claiming a decree for declaration and permanent injunction. The suit was dismissed and so was the case with appeal. Civil revision, however, was allowed by this Court and the said decree was granted. The CPLA before the apex Court failed. Needless to state that Section 144, CPC is based on fundamental principles of law that an act of Court should not injure any person. The restitution is ordered against the holder of a decree who in execution thereof has deprived the opposite party of some benefits and upon variance or reversal of decree the Court calls upon him to restitute the said benefit. As noted by me above, it was a case for correction of share in joint holding of the parties. Under the law if a co- sharer is dispossessed by another co-sharer then only remedy is either to file a suit under Section 9 of the Specific Relief Act, 1877 or to file a suit for partition. It is not even case of the respondents that the petitioners took over the possession in disobedience of any injunctive order in force. Thus, provisions relating to execution of injunction decree are also not attracted. So far as the contention of the learned counsel for the respondents are concerned, in the said case of Fazal Karim a decree for possession by pre-emption was passed and possession obtained in execution and upon setting aside of the decree the restitution of possession was upheld by the Hon'ble Supreme Court.
In the said case of Abdul Bari in execution of a decree for possession the opposite party was dispossessed and upon setting aside of the said decree the possession was restituted and this was upheld by the Hon'ble Supreme Court, In the afore-noted case of Ziaullah a tenant was dispossessed in execution of an ex parte ejectment order and the learned Rent Controller was directed to restore the possession of the tenant after setting aside of the ex parte ejectment order.
In the above-mentioned case of Barkat A.I a suit for specific performance was decreed and sale- deed was registered in execution upon setting aside of the decree the sale-deed was cancelled.
The order of revisional Court was set aside by this Court on the ground that since the sale-deed was executed in execution of the decree which had been set aside the same is liable to be cancelled. In the said case of Mst. Sultan Bibi and 25 others an ex parte award was given and the suit, inter alia, for possession was decreed and the possession was delivered in execution.
Ultimately the Hon'ble Supreme Court allowed the appeal of the opposite party and said decree was set aside. Thereafter an application for restitution was filed and it was ordered. The appeal was accepted by the learned District Judge. The learned High Court of Baluchistan allowed the civil revision holding that since the decree has been set aside and possession was taken in execution of the decree the concerned party is entitled restitution. The facts of this case are entirely different from the said cases. No decree capable of execution was passed neither it was executed by the petitioners and there is no question of any restitution. Writ petition is accordingly allowed. The impugned orders being without lawful authority and void are declared as such and are set aside. I am informed by the learned counsel for the respondents that warrant was issued and report had been received. If the possession of the petitioners has been disturbed or changed on the basis of said declaratory decree, the learned Trial Court/executing Court shall take steps to restitute the same in favour of the petitioners in accordance with law. No order as to cost.
A copy of this judgment be immediately remitted to the learned executing Court. .