JUDGMENT MUHAMMAD KHALID MEHMOOD KHAN, J.-Briefly stated the facts of case are that respondent filed an application under Order XXI, Rules 100, 101 and 103, C.P.C. With the prayer that possession of Property No.2294 measuring 5 marlas situated in Mohallah Bewa Camp, Khushab be ordered to be restored to him.
2. The petitioner filed a suit against respondent No.2 for specific performance of an agreement claiming that he agreed to purchase a house (Hereinafter referred to property) from one Abdul Majeed, the predecessor in interest of respondent No.2, through an agreement to sell dated 25-4- 1975. The seller died in the year 1992 and his only legal heir respondent No.2 refused to execute the sale-deed. Respondent No.2 appeared in court and admitted all the assertions of plaint and the learned trial court decreed the suit on 13-9-1992. The petitioner filed execution of decree and The learned executing court issued warrant of possession and the petitioner was put into possession of property. The respondent No.1 filed an application under Order XXI, Rules 100, 101 and 103 Code of Civil Procedure, before the learned executing court claiming that he had purchased the property from one Naeem-ul-Islam through "YAD DASHT" and was in possession of the property as owner of the same when he was illegally dispossessed by petitioner through a fraudulent court order. He asserted in his application that petitioner and respondent No.2 are uncle and niece, they through fraud and misrepresentation managed to get the fraudulent decree against the petitioner's property and got the possession of property by defrauding the court showing that decree is for possession and even if, it is assumed that decree was passed in accordance with law in favour of petitioner even then the executing court was not empowered to issue warrant of possession as the petitioner has not claimed the decree for possession nor any decree was passed for possession. He asserted that property in dispute was originally transferred to Abdul Majeed son of Ali Muhammad from the Settlement Department. The said transferee sold the property to one Naeem-ul-Islam in the year, 1972. He purchased the property from Naeem-ul-Islam through an agreement to sell and after receiving the entire consideration the said Naeem-ul-Islam handed over the possession of house to him along with all original documents of title and as such the possession of property be ordered to be restored to him.
3. The petitioner appeared and controverted the assertions of respondent's application.
4. The learned trial court, out of divergent pleadings of parties, framed the following issues:-- "ISSUES: (1) Whether the petitioner is owner of the disputed property and was in possession at the time of execution of disputed decree and was got dispossessed by the decree holder through fraud and wrong facts and as such the petitioner is entitled to 'possession of the disputed land as bona fide claimant of the same? OPA
(2) Whether the petitioner is entitled to possession of House No.2294 and articles as given in para No.6. Of the application? OPA
(3) Whether the petitioner has no cause of action? OPR
(4) Whether the application is false and frivolous and without any basis? OPR
(5) Order.
5. Both the parties adduced their respective evidence, both verbal as well as documentary and the learned executing court vide order dated 8-10-1999 dismissed the application. The respondent assailed the said order through a revision petition which was allowed on 21-3-2002. Hence, the present petition.
6. Learned counsel for the petitioner submits that no application under Order XXI Rules 100, 101 and 103, C.P.C. Is maintainable. The respondent if was aggrieved of dispossession order passed in execution of decree, he should first have got set aside the decree. Further submits that petitioner is in possession of a valid decree, passed by the competent court of law, and as such the impugned order is against law and facts. On merits, he submits that learned revisional court has fallen in error while holding that petitioner is liable to return the possession by ignoring the sale-deed executed by court in his favour in execution of decree. He adds that impugned Order is an outcome of misreading and non-reading of record.
7. Learned counsel for respondent No.1 supports the impugned judgment and submits that decree, the basis of respondent's dispossession is an outcome of fraud and has been obtained by concealing the real facts.
8. Heard. Record perused.
9. It, is an admitted fact on record that decree for specific performance of an agreement was passed on 13-9-1992 in favour of petitioner. Decree was executed and respondent No.1 was dispossessed from the property. Perusal of record shows that petitioner filed a suit against respondent No.2 claiming that she is the only legal heir of Abdul Majeed, the transferee of property and her father sold the property to him through agreement to sell dated 25-4-1975. The alleged agreement is Exh.R-1, it shows that petitioner has taken over the possession of property at the time of execution of agreement to sell. It is specifically mentioned in the agreement:-- {{URDU TEXT}}
10. It means that under the alleged agreement to sell the petitioner has taken over the possession Of property in 1975. The petitioner when filed the suit it is not averred who is in possession of property. The prayer of suit shows that petitioner has not prayed a decree for possession.
Respondent No.2 when submitted his written statement, she accepted each and every assertion of plaint. The evidence produced by the parties that respondent No.2 is the were of petitioner's son and is the daughter-in-law of petitioner, they all are residing in one house. Hence, it is a proven fact on record that petitioner and respondent colluded with each other and succeeded to get collusive decree by practicing fraud with the court. The executing court without examining the terms of decree issued warrant of possession of the property in dispute in haste without examining the decree. After issuance of warrant of possession the petitioner arranged a fake report, with the help of Bailiff of court as is evident from Exh.A-18. Bailiff reported that house is closed and police assistance for breaking/open the locks is required for handing over the possession to decree holder. The said report and warrant of possession on the face of it are maneuvered and managed documents and have been issued due to the negligence of executing court. The executing court without examining the report of Bailiff passes an order of police assistance and the respondent No.1 was dispossessed. The above facts will show that very issuance of warrant of possession was illegal and was outcome of fraud.
11. Now the question arose what was the right of respondent No.1 in the property, he has placed on record a document showing "Yad Dasht" Exh.P-1, the said document shows that respondent No.1 had purchased the suit property from Naeem-ul-Islam who is purchaser of suit property from Abdul Majeed. Naeem-ul-Islam handed over the possession of property to respondent No.1 along with original title documents. Exh.A-4 and A-5 but admittedly the "YAD DASHT" was not finalized in sale-deed and as such the same remain agreement to sell The argument of learned counsel for petitioner is that agreement to sell confers no title or interest in the suit property whereas his agreement to sell of the same property has been converted into a sale-deed through a decree of court, hence the petitioner alone is the absolute owner of property, when the decree is set aside and sale-deed is cancelled. The argument of learned counsel has a force to that extent that agreement to sell confers no title in favour of purchaser but there is an important documents available on record which shows that original P.T.O Exh.A-4, original PTD Exh.A-5, Tax payment receipts Exh.A-8 and Exh.A-9 are in possession of respondent No.1 which were handed over to him by Naeem-ul-Islam when he agreed to sell the suit property to him. Naeem-ul-Islam appeared as witness and admitted that he sold the property to respondent No.1 with possession and handed over all title documents of property delivered to him by the original transferee while selling the property to him. In the above said facts if the argument of learned counsel for the petitioner is admitted that he purchased the property from Abdul Majeed, he should have been in possession of original document of title. The learned counsel for the petitioner has no answer about this fact why the original titled documents of property are not in his possession. Under section 53-A of Transfer of Property Act, the agreement to sell coupled with possession empowers the purchaser to defend his possession as he entered into the property under a valid agreement. It is the case of petitioner that respondent No.1 was not in possession of property and property was in possession of respondent No.2. This argument of learned counsel is belied from the fact that the respondent when filed execution of decree, he claimed that judgment-debtor is in possession of property but in plaint he has not claimed this fact, the report of Bailiff is silent about the name of person possessing the property. The report of Bailiff shows that property is locked but the evidence available on record shows that Bailiff with the connivance of petitioner prepared fake report, the executing court was negligent as he failed to even examine the contents of Bailiff report Exh.A-18.
12. Another alarming fact which has been proved beyond any shadow of doubt is that respondent No.2 is daughter-in-law of petitioner but he failed to disclose this fact in his plaint. Respondent No.2 is the were of petitioner's son, who is the witness of warrant of possession, they all are living together but to usurp the property in dispute they all planned to get a decree for specific performance of the property in possession of respondent No.1, this classic fraud has been proved on record that husband and were are pretending themselves to be alien defrauded the court and succeeded to get the possession of property in possession of some other person.
13. The argument of learned counsel for petitioner is that under Order XXI, Rule 103, C.P.C. The executing court cannot pass any order for repossession unless the decree in favour of petitioner is set aside as word fraud is not included in this rule, for better appreciation of Rule 103, C.P.C., the same is reproduced as under:- "103. [Certain orders conclusive and suit barred. ---All questions arising as to title, right or interest in, or possession of immovable property between an applicant under Rule 97 and the opposite- party, or between an applicant under Rule 100 and the opposite party, shall be adjudicated upon and determined by the Court,
7. And no separate suit shall lie for the determination of any such matter." The above rule was amended by the Ordinance of XII of 1972 and words were added that all questions arising as to title, right or interest in, or possession of immovable property under Rule 97 or Rule 100 are to be adjudicated upon by the executing court only and not by an separate suit prior to the amendment aggrieved party was to file the separate suit for redressal of his grievance.
8. Bare perusal of above rule shows that in fact it is substitution or if not substitution it is at par with section 12(2) of C.P.C. Under section 12(2), C.P.0 the aggrieved party has a right to assail the decree through an application if he/she claims that decree has been obtained through fraud. In Rule 103 Order XXI, C.P.C. Word fraud has not been mentioned and the application is proceedable with reference to a decree. Under Rule 103 Order XXI, C.P.C. The applicant has to admit the genuineness of decree but in an application under section 12(2), C.P.C. The main ground of attack is fraud. The contents of application shows that respondent No.1 has vehemently pleaded fraud committed by petitioner and respondent No.2. Hence, the application of respondent was substantially was an application under section 12(2), C.P.C. It is also an admitted fact that executing court is the same court which passed the decree and the application under section 12(2), C.P.C. Could be filed before the Court who passed the decree. It is an established principle of law that wrong quoting of provision of law is not harmful or fatal. It is the duty of court to grant relief or to decide lis as per pleadings, prayer of the plaint or application and even the court has the powers to grant relief which was not claimed if the court after examining the record comes to the conclusion that litigant is entitled to the relief in the administration of justice. As the application was on the ground of fraud, the executing court was bound to treat the application referred to above application under section 12(2) C.P.C.
17. The above said facts shows that fraud has been proved from the pleadings, evidence and record produced by the parties and as such I treat the application under Order XXI Rules 100, 101 and 103, C.P.C. As application under section 12(2), C.P.C. And set aside the decree dated 13-9-1992 and remand the case to learned trial Court for deciding the same afresh after hearing the parties.
The impugned order is, thus, affirmed with the above modification. As it is an old case, the learned trial Court will decide the same within two months on receipt of certified copy of this judgment.
18. The petition is decided accordingly..