ORDER MUHAMMAD KHALID MEHMOOD KHAN, J.---One Sobaydar (Retired) Muhammad Bashir filed a suit against Jalal etc. On 26-11-1989 claiming that land described in para 1 of the plaint was owned by his father and respondents Nos.1 and 2 Jalal son of Allah Dad and Khan Muhammad son of Ghulam Muhammad were his tenants, his father died in the year, 1963 and he become the owner of said land being his legal heir/legal representative. In the year 1980 the consolidation proceedings started in the village and new numbers according to rectangle system were allotted to the land.
The area in this process was reduced from 1 kanal 16 marlas to 1 kanal 9 marla, however, the other position remained unchanged. He claimed through the suit that Jalal and Khan with the collusion of revenue officials got them recorded as occupants instead of tenants and under the garb of said fraudulent entry in the revenue record they have raised construction on the part of suit land. A decree for declaration was prayed for declaring that he is the exclusive owner of land subject matter of the suit and that Jalal and Khan Muhammad are his tenants and they be directed to remove the construction raised illegally on the land of petitioner. Jalal Khan and Khan Muhammad filed written statement and claimed that their possession on the land is adverse possession and the learned Civil Court framed issues, recorded evidence of both the parties and on 20-11-1993 decreed the suit, the said Jalal and Khan Muhammad filed appeal. The learned appellate Court affirmed the findings regarding the ownership of petitioner and the right of perpetual injunction, the claim of adverse possession was denied along with the objection of limitation, however, the learned appellate Court denied the claim of mandatory injunction whereby Jalal and Khan Muhammad were directed to remove the construction. Muhammad Bashir assailed the order of first appellate court through Revision Petition No.1071 of 1996 and this Court vide judgment dated 16-4-2002 allowed the revision petition and restored the judgment and decree dated 20-3-1993 passed by the learned Civil Court. Mst. Rasool Bibi etc. Filed a Civil Miscellaneous in Civil Revision No.1071 of 1996 claiming that the judgment dated 16-4-2002 is giving impression as if Muhammad Bashir is the sole owner of suit land whereas they are also the legal heirs of Muhammad Hussain the original owner of land. This Court vide order dated 12-2-2007 disposed of the said Civil Miscellaneous No.63 of 2007 in the following manner:- "3. I have gone through the record of the C.R. The said apprehension is rather misplaced.
Respondent No.1 had been through out stating that his father namely Muhammad Hussain was co- sharer in possession before and after consolidation proceedings while defendants in the suit were non-occupancy tenants but they started denying the title. Accordingly they were treated as trespassers and possession was sought accordingly. Respondent No.1 admittedly being a co sharer, the decree has correctly been passed for dispossession of the trespassers. So far as the said contention of the learned counsel is concerned, since the petitioners were not, admittedly, a party to the suit, notwithstanding the said stand taken by the respondent No.1 on the record, that it was his father who was co sharer in possession and he stepped into his shoes, the question as to who are heirs of Muhammad Hussain and what was their respective share in the suit land shall be decided in case the petitioners or any other co-sharer takes steps and file a suit for partition. Sa far as the decree for possession against the said trespassers is concerned, the same has been validly passed and shall be executed in accordance with law."
2. The said order was not challenged by Jalal and Khan Muhammad etc. And as such it attained finality. The decree holder Muhammad Bashir then filed an execution of decree and. Mst. Rasool Bibi filed an objection petition claiming that the decree holder has sold 6 marlas land being his share and as such he become non-owner in the property and as such the decree is non- executable. Mst. Rasool Bibi's application was dismissed on 5-12-2006. Mst. Rasool Bibi again filed an application on the same ground whereby it was asserted that the Mutation No.2635 was attested on 17-5-2005 by the orders of High Court, but subsequently this mutation was set aside and as such the execution cannot be proceeded. The learned executing Court after examining the record came to the conclusion that a contempt application against DDO, (R) is pending for violating the orders of High Court dated 17-5-2005 for setting aside Mutation No.2635. The learned trial Court further came to the conclusion that the right of decree holder Muhammad Bashir has become final by the-orders of Lahore High Court Lahore and as such even if it is assumed that 6 marlas land has been sold by Muhammad Bashir even then the decree to the extent of land measuring 01 kanals 03 marlas is executable and issued the warrant of C possession vide order dated 19-5-2001. Mst. Rasool Bibi filed an appeal against the order dated 19-5-2010 and learned Appellate Court vide order dated 21-5-2010 suspended the operation of order dated 19-5-2010 for issuance of warrant of possession. However, on 25-5-2010 when learned appellate Court came into the true facts he withdrew the order dated 21-5-2010 vide order dated 25-5-2010. The petitioner has assailed the three orders i.e. 19-5-2010, 25-5-2010 and 26-5-2010 and submits that the decree dated 20-11-1993 is not a decree for possession but is' a decree for injunction and as such the possession cannot be obtained from the petitioner in pursuance of said decree. He further submits that the petitioners are also the co-sharer in the property subject matter of a decree and as such the same is not executable unless a decree for partition is passed. He further submits that there is no decree against the petitioner and as such the decree is not executable against them. He further adds that the decree is against respondents Nos.2 and 3 but under the garb of said decree the respondent No.1/decree holder wants to take possession from the petitioners who all are co- sharers in the Khata.
3. Learned counsel for respondents controverted the arguments of learned counsel for the petitioners and submits that the present petitioners have filed a suit for partition which is available on Court record at page 23 which shows that Jalal Khan, Sakhi Muhammad sons of Allah Dada are in possession of land on their behalf and the respondent/decree holder is the owner of land measuring 12 marlas only. He pointed out that in objection petition Mst. Rasoolan Bibi claims that respondent No.1 has sold her share which is 6 marlas of land and as such he is not the, owner in the Khata but in the suit she herself admit that decree holder/respondent No.1 is the owner of land measuring 12 marlas. Mst. Rasoolan Bibi further admits that judgment debtor Jalal Khan is in, possession of the property on their behalf. This fact shows that the petitioner Mst. Rasoolan Bibi in collusion with trespassers is trying to frustrate the decree. He further submits that vide judgment dated 12-2-2007, the Lahore High Court Lahore confirmed that the judgment debtors are trespassers and decree is executable against them for their dispossession. He further submits that the petitioners are creating hindrance in the execution of decree by filing frivolous applications. The decree is against the trespassers and as such the trespassers are liable to be ejected in terms of warrant of possession issued by the learned executing Court vide order dated 19-5-2010 and affirmed by the learned appellate Court vide order dated 25-5-2010.
4. It is an admitted fact between the parties that the decree was passed against respondents Nos.2 and 3 by the learned Civil Court on 20-11-1995. The judgment debtors assailed the said decree through an appeal which was allowed vide judgment and decree dated 14-3-1995, respondent No.3 assailed the said judgment and decree through revision No.1071 of 1996 which was allowed and the judgment and decree dated 20-11-1993 was restored. The petitioner then filed a Civil Miscellaneous No.63 of 2007 claiming that they are also the co-sharer in the property being the legal heirs of deceased Muhammad Hussain along with decree holder. One of the claimant Sakhi Muhammad the decessorin-interim of present petitioner No.3 withdrew the said application, however, the application of Rasoolan Bibi etc. Was disposed of by this Court on 12-2-2007, whereby it was categorically directed that respondents Noa .2 and 3 are trespassers and the decree is executable against them.
5. The respondent No.1 is executing the decree against the judgment debtors and admittedly the petitioners are not the judgment debtors and as such they cannot be dispossessed but copy of plaint in the suit filed by present petitioners for partition shows that the judgment debtors are in possession of property belonging to respondent No.1 and petitioners. The petitioners are claiming in that suit that respondent No.1 is the owner of land measuring 12 marlas. They have further admitted that judgment debtors are in possession of property subject matter of execution, but they are in possession of land on their behalf. The facts available on record shows that the petitioners are providing refuge to the judgment debtors from a decree which has been passed against them and they have lost their claim upto High Court and a decree against them attained finality. This Court in Civil Revision No.1071 of 1996 while disposing of Civil Miscellaneous No.63 of 2007 has clearly held that decree passed by the learned trial Court is in accordance with law and respondents Nos.2 and 3 are trespassers and as such the decree against them has to be executed for surrendering the possession of suit land. The argument of learned counsel for the petitioners is devoid of any merit that unless and until a decree for partition is passed, the decree holder is not entitled to possession from the judgment debtors. It is a settled law that in an un-partitioned Khata every co-sharer is owner of each and every inch of Khata. The petitioner cannot claim that the judgment debtors are in possession of their property. The petitioners claim is negated by the fact that have themselves filed a suit for partition, meaning thereby they are admitted that they are co-sharer in each and every inch of Khata. The executing Court has rightly passed an order for eviction of judgment debtors from the land belonging to the respondents No.1 and the petitioners. The petitioners cannot claim that the judgment debtors are in a specific possession of their share.
6. In view of above leaned Civil Court has rightly issued the warrant of possession against respondents Nos.2 and 3 in terms of a decree dated 20-11-1993. The petition in hand fails and is dismissed accordingly.
7. There is no order as to costs.