' ASAD MUNIR, J.---A pre-emption suit was filed on 7-9-1996 by the petitioner against the respondent to obtain possession of land measuring 9 marlas, bearing khasra No, 429 in khewat No,229, situated at Mauza Sheikhpur, Tehsil Kharian, District Gujrat, which had been sold by Muhammad Sharif to the respondent on 11-8-1996. Finding that both the petitioner and the respondent were co-owners in the joint khata of the land in question, the learned Civil Judge, Kharian, through judgment and decree dated 9-3-1998 decreed the suit favour of the petitioner to the extent of one half of the land in question in terms of section 20 of the Punjab Pre-emption Act, 1991. Thereafter, the respondent filed an appeal against the judgment and decree dated 9-3-1998 but the said appeal was dismissed by the learned Additional District Judge, Kharian, vide judgment and decree dated 14-7-1998 whereafter the matter was not agitated any further with the result that Civil Judge's judgment and decree dated 9-3-1998 has attained finality.
2. During the proceedings for the execution of the decree dated 9-3-1998, the Executing Court vide order dated 20-11-1998 issued warrants of possession of the land in dispute and directed the revenue authorities to deliver the possession of the property in dispute to the petitioner. However, the respondent offered resistance to the execution of the decree on the plea that in terms of the decree the petitioner, having become a co-owner along with the respondent, could not seek actual possession of the disputed land but was entitled to its symbolic possession only. Rejecting the stand of the respondent, the learned Executing Court through its order dated 17-6-2000 issued warrants of possession to the District Collector to execute the same and deliver actual and physical possession of the property to the petitioner. This led to an appeal, being filed by the respondent, which was allowed by the Additional District Judge, Kharian, by his judgment dated 3- 7-2001 with the result that the Executing Court's order dated 17-6-2001 was set aside.
3. The present civil revision assails judgment dated 3-7-2001, inter alia, on the ground that the Executing Court's order dated 17-6-2000 was lawful and could not have been reversed as it was passed pursuant to section 20 of the Punjab Pre-emption Act, 1991, read with Order XX, Rule 18(1), C.P.C., which empowered the Executing Court to order the District Collector to partition the property and deliver the actual physical possession of one half of the property in accordance with the decree dated 9-3-1998. It is further contended under Order XX, Rule 18(1), C.P.C., the Executing Court can order the District Collector to himself divide the property and that decree dated 9-3-1998 was a preliminary decree while order dated 17-6-2000 had to be regarded as a final decree which was liable to be executed under Order XX, Rule 18(1), C.P.C.
4. Conversely, the learned counsel for the respondent has contended that the petitioner cannot seek the issuance of warrants of actual physical possession as he has been granted decree only to the extent of one half share of the land in question and until and unless partition take place, he cannot obtain actual physical possession of any part of the land in dispute. In support, the learned counsel for the respondent has placed reliance on Ali Shah v. Allah Ditta and 6 others (1994 CLC 800).
5. I have given due consideration to the respective contentions of the learned counsel for the parties with regard to section 20 of the Punjab Pre-emption Act, 1991 as well as Rule 18(1), Order XX, C.P.C.
6. It is settled law that a decree has to be executed as it is and A cannot be executed in such a manner or mode that amounts to its modification. In the instant case, the decree dated 9-3-1998 in favour of the petitioner allows him one half share of the land in accordance with section 20 of the Pre-emption Act, 1991. However, the decree does not specify or demarcate the petitioner's half share in the land which means that it is a decree for the joint possession of the land as against separate possession of the same. As such, on the strength of the decree, the petitioner has only become a joint and equal owner in the land. Since the petitioner has become an equal co-owner along with the respondent who happens to be in possession of the land, the separate share of the petitioner can be determined by means of a partition suit only. Till his share is so determined and separated, the petitioner cannot obtain actual possession of his share of the land in dispute. While saying so, I draw support from Ali Shah v. Allah Ditta and 6 others (1994 CLC 800) where a similar situation arose and it was held that the pre-emptor in whose favour an un-divided part of the land was decreed could obtain its symbolic possession only and was required to file a partition suit to obtain the actual physical possession of his share.
7. Learned counsel for the petitioner has made strenuous efforts to defend the Executing Court's order dated 17-6-2000 by contending that under Rule 18(1), Order XX, C.P.C., the Executing Court has the power to direct the District Collector to partition the property and deliver actual possession of the separated share of the petitioner. For ease of reference, Rule 18(1), Order XX, C.P.C,, is reproduced below:- "18, Decree in suit for partition of property or separate possession of a share therein.---Where the Court passes a decree .For partition of property or for the separate possession of a share therein, then,--
(1) If and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall .Declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54."
8. I am afraid the reliance on the said Rule 18(1), Order XX, C.P.C., is misplaced as it only lays down that a decree passed in a suit for partition of property, assessed to land revenue, must not only declare the rights of the interested parties but must also direct the District Collector to partition the property. Admittedly, the decree in question contains no such direction to the District Collector and it is at the post-decretal stage that the Executing Court vide its order dated 16-7-2000 has directed the District Collector to divide the property. This direction amounts to a modification or correction of the decree dated 9-3-1998 which is not permissible in execution proceedings. In support, I may refer to Kazi Khan Mahomed v. Hemamdas Pritamdas (AIR 1935 Sind 192) wherein it was held to the effect that, a decree of partition of land cannot be referred to the District Collector for effecting partition if no directions as required by Order XX, Rule 18(1) are given therein. In the circumstances, I think it is Rule 35(1), Order XXI, C.P.C., which is attracted to the case of the petitioner who can only seek symbolic possession of his share as against the actual physical share of one half of the property in dispute which is yet to be determined. The case law cited by the learned counsel for the petitioner is also distinguishable for the reasons hereinbefore discussed. The argument that decree dated 9-3-1998 and order dated 17-6-2000 have to be regarded as a preliminary decree and a final decree, respectively, is also not tenable as the decree dated 9-3-1998, in view of the Explanation to section 2(2), C.P.C., is a final decree as it has completely disposed of the suit filed by the petitioner.
9. In view of what has been stated above, I find that the impugned judgment, dated. 3-7-2001 is unexceptionable. Resultantly, I seen no merit in this civil revision, which is dismissed with no order as to costs.