ALI AKBAR QURESHI, J. - This order shall dispose of this petition as well as the connected E.F.A. No. 41/2006, as common question of law and facts are involved in both these matters.
2. The petitioner through this civil revision has questioned the validity of an order dated 16.12,2005 passed by the learned Additional District Judge, Lahore whereby the application under Section 12(2), C.P.C, was allowed with the observation that the civil suit of Mst. Farida Sajid would deemed to be pending at Lahore and further proceedings will be carried of under Rule 13, Order XXVI, C.P.C.
3. The synopsis of the fact as set of in the petition is that a declaratory suit with prayer for possession, through partition was filed by Mst. Farida Sajid in 1987 at Jhelum, subsequently the suit was transferred to Lahore under the order of this Court dated 6.7.1987 in T.A. No. 277- C/1987; the suit was finally dismissed by the District Judge, Lahore on 2.5.1982, against which R.F.A. No. 245/1992 was filed which was allowed by this Court on 31.3.2000 whereby the decree dated 2.5.1992 was set aside and Mst. Farida Sajid, petitioner, herein was held entitled to 1/9 share in the suit property. On the basis of the afore-said judgment, an execution petition was filed by the petitioner at Lahore and the same was transferred alongwith decree to Jhelum because of the reason, the suit property was situated in Jhelum. The learned Judge, Jhelum entrusted the matter to the learned Senior Civil Judge, who executed the decree after following all the procedure and transmit the matter to the learned District Judge, Jhelum for sending it to District Judge, Lahore. The learned District Judge, Lahore received the file on 9.7.2003 and lastly the matter was entrusted to the Court who passed the order, impugned herein.
4. At this moment, respondents namely Syed Baqir Ali Shah and Khalid Javed Shah instituted an application under Section 12(2) read with Section 151, C.P.C, on 18.5.2003 questioning the jurisdiction and powers of the learned Senior Civil Judge, Jhelum/executing Court and also the manners to execute the decree, In the application mainly it was asserted that only a preliminary decree was passed and till the passing of final decree, the petitioner could not claim the ownership of a specific area of the property. An objection petition was also filed by one Ghulam Abbas on the ground that Plot No. 6 was transferred to him.
5. The learned District Judge, Lahore, heard the arguments on both the applications and finally accepted the application under Section 12(2), C.P.C., hence this Constitutional petition.
6. It is not denied by the parties, that the R.F.A, filed by the petitioner was allowed with the conclusion, that the petitioner would be entitled to 1/9 share in the property and finally the case was decreed to this extent.
6. Learned counsel for the petitioner contended that the rights of the petitioner has already been concluded and adjudicated by this Court in R.F.A. No. 245/1992 and incompliance thereof, the decree was executed and the possession of the property to that extent-was delivered to the petitioner, therefore, the learned Additional District Judge, Lahore had no jurisdiction to interfere with the judgment passed by this Court and the execution conducted by the learned Courts of Jhelum, so the acceptance of the application under Section 12(2), C.P.C, is not only against the law but also the judgment passed by this Court. Lastly contended, that the respondents who are also admittedly share-holder in the suit property, can ask for execution of the decree to the extent of their share but without interfering into the rights of the petitioner-which have already been settled by the order of this Court.
7. Conversely, the learned counsel for respondents supported the findings, impugned herein, and submitted that the final decree in the suit is yet to be passed, therefore, the executing Court wrongly passed any order. Reliance is placed on Abdul Gani Matbar v. AsperAli Matbar and another (PLD 1964 Dacca 633), Farid Bakhsh alias Ghulam Farid v. Niaz Muhammad and others (1999 CLC 738), Khawaja Muhammad Yousaf v. Khawaja Abdul Rashid and 2 others (PLD 1973 Karachi 686), Chanan Din v. Ghulam Haider and 8 others (2002 CLC 574) and Muhammad Latif v. Muhammad Hafiz and others (PLD 1954 Federal Court 184).
8. Heard.
9. Upon the examination of -the record, undeniably, the parties to the suit are co-sharer in the suit property; a preliminary decree was passed by the learned Trial Court, which was assailed before this Court wherein the right of the petitioner to the extent of 1/9 share was adjudicated and no other findings were recorded, It is also not denied that the final decree is yet to be passed in the suit filed by the petitioner, therefore, this is sufficient to decide the matter in hand that until and unless a final decree is passed, no one among the sharer can claim the title or the possession of the specific area of the suit property which is yet to be partitioned physically by the learned Trial Court, It was rightly concluded by the learned Additional District Judge while accepting the application under Section 12(2), C.P.C, that the rights/shares of the petitioner have been finally adjudicated this Court to the extent of 1/9 share but the final decree has yet to be passed. When the afore-said position was confronted to the learned counsel for the petitioner, the learned counsel reiterated his argument that the rights of the petitioner have already been adjudicated by this Court and the decree has also been executed, but could not offer any explanation of meet with the query. They ratio of the judgments referred by the learned counsel for the respondents is that the decree-holder in a partition suit without obtaining the final decree cannot ask for execution.
10. For the foregoing reasons, this petition has no force and is dismissed. The learned executing Court is directed to appoint the local commission as required by law to complete the process within a shortest possible period. No order as to costs.