' ABDUL SATTAR GORAYA, J.---By means of this Constitutional petition, orders, dated 9-12-1996 passed by the Member Board of Revenue and 9-6-1996 and 23-12-2003 of the D.C./Collector, Gujranwala have been brought under impeachment.
2. Facts in brief are that Sher Muhammad deceased, predecessor in interest of the petitioners, filed a suit for possession through preemption before the learned Civil Judge, Wazirabad in respect of agricultural land measuring 3-kanals, 1-marlas comprising Khewat Nos. 53 and 54 (Min), Khatooni Nos.113 to 117 bearing Khasra No,837, situated in the Revenue estate of Mouza Harchoki Tehsil Wazirabad. The said land, in fact, was sold by Gharjoo son of Ghora to Fazal Din vendee for an amount of Rs, 12,000 through a registered sale-deed, dated 11-4-1984. During pendency of the suit, both the parties of their own accord and free-will, on 30-9-1985 entered into a compromise.
Resultantly the suit was decreed as prayed for in favour of predecessor-in-interest of the petitioners, After deducting Zr-e-Panjum. Balance amount was deposited on 23-10-1985. It is stated that after getting the decree, petitioners' predecessor approached the Tehsildar/ Revenue Officer, Halqa, Wazirabad for substitution of his name in the Revenue Record. In due course of time, it appears that by means of entry vide Mutation No,241, oral gift was shown to have been made on 26-4-1992 in favour of respondents Nos. 4 and 5. It was for this reason that the Collector vide order, dated 9-9-1996 regretted his inability to cancel the mutation and asked the petitioners to go before the Civil Court. It is stated that the said entry, in fact, was a collusive deal in collusion with the Revenue field staff. Execution petition filed by the petitioner on 6-1-1993 was dismissed for the reason that in the first execution petition, process fee was not deposited and the second application under section 47; C.P.C. Was barred by limitation. This is vide order, dated 26-10-1995. In the meantime feeling dissatisfied with order of the Collector, petitioners preferred a revision which was accepted on 9-12-1996 by the Commissioner with a direction to the Collector to cancel Mutation No,241 to the extent of 3 Kanals, 10 Marlas of land and the new mutation may be entered.
Respondents Nos. 4 and 5 challenged the order of the Commissioner before the Member Board of Revenue who vide his order, dated 23-12-2003 set aside the order of .The Comthissioner.
3. Learned counsel for the petitioners contends that no execution petition was required to be filed and it was bounden duty of the Revenue Officer under subsection (7) of section 42 of the Land Revenue Act, 1967 to implement the decree in the Revenue Record. Further argued that order of the executing Court dismissing the execution petition is void from its inception and is simply to be ignored because of the fact that filing of execution petition was not required. Also argued that it was necessarily a consent decree, therefore, the moment it was passed and in faithful compliance whereof the decretal amount was paid in the Court, predecessor-in-interest petitioners become full-fledged owner but the Courts below did not appreciate this aspect of the case and the impugned order has been passed in oblivion of mandatory provisions of law.
4. Conversely, learned counsel for the respondents states that the period specified for execution of the decree was six years and within the specified period to attempt was made to get the decree executed and rights of the suitor, if any, stood extinguished.
5. I have heard the learned counsel for the parties at some considerable length. Available record perused.
6. By means of Ordinance No,XX of 1972, limit of 12 years prescribed for presentation of fresh application has been reduced to six years, There is no fetter on the decree holder to present another number of application to satisfy the decree but the principle of res judicata, has to be observed. The moot question in this case remains to be determined is whether the pre-emption decree which was passed on consent arrangement made by the parties, necessarily was required to be put to execution, the answer is in the negative. Subsection (7) of section 42 of the Land Revenue Act, 1967 in terms provides that except in cases of inheritance or where the acquisition of the right is registered by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection (6) in the B presence of the party who acquired the right under the decree and such person has been duly identified by two respectable persons preferably by the Lantardar, Member of the Union Committee, Town Committee or Union Council whose signatures and thumb-impressions shall be obtained by the Revenue Officer and shall register the mutation which in due course of time shall be sanctioned in the Revenue estate.
Said decree was not required to be executed and the Revenue Officer was under statutory obligation to implement the decree in the Revenue Record. The order, dated 26-10-1995 passed by the executing Court renders void and simply is to be ignored.
7. Now the proposition of law is too settled to admit any debate that the moment decretal amount was deposited in compliance with the decree passed in a pre-emption suit, the decree holder becomes absolute owner and sanctioning of mutation etc., remains a formality only to be done.
This question came-up for consideration in Inzar Gul Said Anwar and another v. Hajab Gul Taza Gul and others (AIR 1941 Peshawar 26) wherein it was held:- "that the question as to whether a sale was a sale of land or not must depend on the circumstances of each particular case, and that there was an out and out sale of land by virtue of the compromise inasmuch as the land had vested in the pre-emptor by virtue of the decree when he deposited Rs,1,800 in Court and he was at time of the compromise the absolute owner of the property of which he could get possession by execution".
' The said view taken in Inzar Gui's case also found favour with the apex Court in Noor Hussain v.
Bashir Ahmad and another (2000 SCMR 428).
8. Learned counsel for the contesting respondents bitterly argued that by passing a prescribed time of six years, right conferred on the decree holder, if any, ipso facto stood extinguished. The said argument has no force. This was necessarily a consent decree and the moment, defendant/judgment-debtor made a consent before the trial Court, he was divested of all his rights and liabilities and the right was transferred in favour of the petitioners-decree holders for all purposes. Ownership of the decree-holder remains intact even if the decree is not put to execution.
Reference may be made to Muhammad Latif v. Bashir Ahmad and 7 others (2004 CLC 1010). I am also fortified in my view by Mahboob Khan v. Hassan Khan Dgrani (PLD 1990 Supreme Court 778), Abdul Ghafoor and another v. Mst. Sahib and 3 others (2005 CLC 1745) and Ali Ahmad and another v. Muhammad Fazal and another (1972 SCMR 322).
9. Similar controversy as in the case in hand also came up for consideration in Dost Muhammad v.
Muhammad Rafiq (2003 YLR 1908) wherein it was held:- "However, the pre-emptor after depositing the purchase money in the Court in compliance of the pre-emption decree becomes vested with the property and even if the execution petition is barred by limitation, the Revenue functionaries are bound to implement the decree in the record as the right and the title of the decree-holder to the property which he had acquired by virtue of decree for pre-emption is not extinguished. The decree holder/respondent may approach the Revenue functionaries for redressal of his grievance in the shape of incorporating the decree for pre- emption in the Revenue Record as laid down in the case of Ali Ahmad and another v. Muhammad Fazal and another PLD 1973 Lahore 207."
' This view also found favour with the apex Court in Dr. Niaz Muhammad Mann and others v. Sh.
Muhammad Ahmad and another (1988 SCMR 1016).
10. Vide order, dated 18-5-2004, this Court directed that Mr. Muhammad Hanif Khatana, Additional Advocate-General shall assist the Court after obtaining the necessary instructions from respondents Nos.1 to 3. Pursuant to the said order, the learned Additional A.-G. Has entered appearance but regretted his inability to support the impugned judgment passed by the learned Member Board of Revenue. He stated that when the issue has been settled in Ali Ahmad's case (1972 SCMR 322) that the Revenue authorities are under obligation to sanction the mutation on the basis of decree passed by the Civil Court, even if no execution petition has been filed, the impugned judgment passed by the learned Member Board of Revenue renders without jurisdiction.
11. The main reason which weighed with the learned Member Board of Revenue in accepting the revision application was that first application filed by the decree-holder was dismissed for want of Talbana fee and the second application also failed because the execution rendered barred by time. The said order was not challenged and after filing the execution petition and when no relief was granted, the jurisdiction of the Revenue Court goes. The reasons put forward by the learned Member Board of Revenue are totally incorrect and carry no weight at all section 42(7) of the Land Revenue Act, 1967 mandates that whenever the decree is presented before the Revenue Officer for implementation in the Revenue Record, without holding an inquiry as required in the cases of inheritance, it is obligatory upon the Revenue Officer to sanction the mutation. Acceptance of objection and dismissal of the execution petition, totally for reasons unknown to the scheme of law, carry no legal value and are simply to be ignored. After the decree-holder confessed in the judgment and the decree was passed in favour of the suitor, the subsequent transaction' of exchange renders ipso facto invalid.
12. For whatever it has been stated above, this petition is accepted and the impugned orders passed by respondents Nos. 1 to 3 respectively are declared to be without lawful authority and of no legal effect. The Revenue Officer Halqa is directed to give effect to the decree in favour of predecessor-in-interest of the petitioners in the Revenue Record forthwith. Costs will follow the events.