' The facts giving rise to this litigation are that Ghulab the predecessor in-interest of petitioners Nos.
1 to 6 along with petitioners Nos, 7 and 8 filed against respondent No, 4 a pre-emption suit for possession of the land measuring 25 kanals 8 marlas, which was decreed in their favour by the learned Civil Judge Khanpur on 20-3-1963, subject to the payment of Rs, 2,859 as sale price. The same set of the plaintiffs instituted against respondent No, 4 another suit for possession of land measuring 9 kanals 17 marlas, through pre-emption. In this suit a decree was passed in their favour by the learned District Judge, Rahimyarkhan, on 12-7-1962 and the decree-holders were required to deposit a sum of Rs, 2,000 as sale price of the suit land. It is claimed by the petitioners that in both the cases the amounts in question, after deducting the costs of the suits. In accordance with the terms of the decrees, were deposited by them in the Court within due dates ; respondent No, 4 withdrew the same ; the petitioners were already in possession of the land and, therefore, they did not apply for execution of the decrees. It is further contended that since in pursuance of the decrees of the civil Court, mutations were not sanctioned in the petitioners' favour, in the revenue record, the land in dispute, continued to be shown, in the name of respondent No,
4. The petitioners, however, filed two separate applications one dated 19-9-1975 and the other dated 3-11-1975 before respondent No. 1 for sanction of the mutations. According to the petitioners, the reason which prompted them to seek sanction of the mutations was, that consolidation proceedings had been commenced in the village and respondent No, 4 attempted to grab the land in dispute, by getting the khaias thereof partitioned in his favour.
2. Both the applications were rejected by respondent No. 1 by his order dated 1-12-1975. He maintained that since the petitioners did not apply for execution of the decrees within the period of limitation prescribed by Article 182 of the Limitation Act read with section 48, C. P. C. The decrees could not be acted upon and the mutations sanctioned without execution.
3. The learned counsel for the petitioners argued that by deposit of the pre-emption money in the Court, the title in the land, in contemplation of Order XX, rule 14, C. P. C. Came to vest in the petitioners from the date of such payment and that under section 45 of the Land Revenue Act. The Revenue Officers were bound to make entries in the land revenue record in accordance with the rights created in the petitioners' favour, by the decrees of the civil Court. It was urged that the petitioners' were entitled to get the mutation sanctioned notwithstanding the facts that they never moved applications for execution of the decrees, within the period of limitation. He heavily relied on Muhammad Fazil v. Member Board of Revenue (1), All Ahmad v. Muhammad Fazil (2) and All Ahmad v. Muhammad Fazil (3).
4. On behalf of respondent No, 4 his learned counsel objected to the maintainability of the writ petition on the ground that the impugned order could be challenged through an appeal under section 161 of the Land Revenue Act. He further submitted that it was obligatory for petitioners to have got the decrees executed within the period of limitation and this having not been done, under section 28 of the Limitation Act their rights in the land in dispute were extinguished and that therefore, the Revenue Officer did not commit any error in refusing to sanction the mutations. The petitioners claim that they deposited the pre-emption money in the Court within time, was also controverted by him.
5. I have heard the learned counsel for the parties and examined the record in the light of the submissions made by them. As regards the objection the sustenance of the writ petition, on the plea of availability of alternative remedy, it is to be seen that mere existence of alternative remedy is not bar to the entertainment of a Constitutional Petition, it is only when the Court is satisfied that an alternative remedy can yield more convenient and complete relief to a petitioner, that writ may be refused. Keeping in view the facts of the instant case, I do not think that the remedy provided under the provisions of the Land Revenue Act, can be considered equally adequate convenient, beneficial and effective. The objection is overruled.
6. Reliance of the respondent's learned counsel on section 28 of the Limitation Act is also misplaced. This section is attracted only when a suit for possession has become barred by time and has no applicability to the application for the execution of a decree. Thus an application barred by Article 182 of the limitation Act, would not be hit by section 28. There {{FOOT NOTE}}
(1) PLD 1974 Note 50 at p. 95 (2) PLD 1973 Lah. 207
(3) 1972 SCM R 322 {{FOOT NOTE}} ' is much force in the arguments of the petitioners learned counsel that under Order XX, rule 14, C. P.
C. Their title in the land commenced from the date of deposit of pre-emption money in the Court and that respondent No. 1 was wrong in refusing the sanction of mutations on account of non- execution of the decrees. This question has already been exhaustively dealt with in the precedents cited by the petitioners' learned counsel. The contentions similar to the one raised by the respondents' learned counsel, were urged before the learned Single Judge in Muhammad Fazal's case but were turned down. The view taken by the learned Single Judge was affirmed by a Division Bench with which the Supreme Court also agreed and while upholding the acquisition of title by the decree-holder in 1972 SCMR 322, it was observed :- "He became the owner of the property on payment of the purchase price on the 26th October, 1980, and became vested with right, interest and title in the land from that date. He was entitled to get the mutation effected on the basis of the decree. Simply because it has barred by time. It has not lost its utility."
' It is thus quite clear that respondent No. 1 acted illegally in declining to sanction the mutations on the grounds that the time limit for execution of the decrees had expired and that the petitioners did not file any execution application. Though the petitioners have placed on the file certain documents to prove that the pre-emption money in both the suits was deposited by them in the Court in accordance with the decrees passed in their favour, yet it is not possible to decide this point conclusively on the strength of the present record. The question is, therefore, left open to be determined by the appropriate authority on the basis of the evidence to be led before it.
7. As a result of this discussion, this writ petition is accepted, the impugned order is declared to have been passed without lawful authority and of no legal effect. It is accordingly, set aside and the case are sent back to respondent No. 1 for fresh decision in accordance with law, on the petitioners' applications for sanction of the mutations. It shall be open to respondent No, 4 to establish before the Revenue Officer, that the petitioners did not deposit the pre-emption money in the Court, according to the terms of the decrees. The parties are left to bear their own costs.