Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitutional of Islamic Republic of Pakistan, 1973 to impugn the orders dated 19.4.2010 and 04.5.2010 passed by learned Civil Judge and judgment dated 18.10.2010 passed by learned Additional District Judge Chiniot.
2. It is argued by learned counsel for the petitioner that the impugned orders and judgment are against law and facts without jurisdiction and liable to set aside; that the decree for possession through specific performance pertaining to undivided share in the joint Khata passed in favour of respondent. Muhammad Anwar could not be executed through warrant of possession and the only course with the respondent/decree holder was to lodge a suit for partition of the joint khata and obtain an order in this regard from the Court of competent jurisdiction.
3. It is resisted by learned counsel for the respondent with the arguments that the impugned orders passed by learned Executing Court and the learned Additional District Judge are within the domain of their jurisdiction in accordance with law and that petitioner has no case to invoke the constitutional jurisdiction of this Court.
4. Arguments heard. Record perused.
5. Perusal of the record reveals that Muhammad Anwar respondent lodged suit for possession Malkana of the land measuring 44 to kanals 10 marlas comprising 890/8445 share in khata No. 1 out of total area measuring 422 kanals 5 marlas situated in Chak No. 22 J.B. Tehsil Chiniot through specific performance of the agreement to sell. The suit was decreed in his favour against the petitioner by the learned Civil. Judge Chiniot vide judgment and decree dated 23.4.1998. The petition for execution of the decree was lodged on 25.11.1998 however it remained pending for about 12 years. During the pendency of execution petition petitioner/judgment debtor mortgaged his land measuring 211 kanals 3 marlas in favour of United Bank Limited Pul Dhingro in lieu of some loan vide Mutation No. 430 dated 30.5.2005. The learned executing Court vide order dated 19.4:2010.however directed the Revenue Officer and Patwari Halqa to record and sanction the mutation in favour of the decree holder in the light of decree dated 23.4.1998. Consequently Mutation No. 440 dated 20.4.2010 was attested by the Revenue Officer in favour of decree holder and copy thereof was produced before the learned Executing Court on 04.5.2010. The learned Executing Court after receiving the copy of Mutation No 440 ordered issuance of warrant-dakhl through DDO(R) concerned to. restore the possession in the joint khata to the decree holder in accordance with the said mutation. Petitioner being aggrieved of the order dated 19.4.2010 and 04.5.2010 lodged a revision petition before the learned Additional District Judge Chiniot which was dismissed vide impugned judgment dated 18.10.2010, hence this constitutional petition.
6. At the outset it may be expedient to reproduce hereunder the relevant provisions of Order XXI, Rule 32(5) and Rule 35(2) of the Code of Civil Procedure 1908 for ready reference:-- Order XXI, Rule 32.--Decree for specific performance, for restitution-of conjugal rights, or for an injunction:--
(5) Where a decree for specific Performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the process aforesaid, direct that the act required to be done may be done so for as practicable by the decree-holder or some other person appointed by the. Court, a the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as, the Court may direct and may be recovered as if they were included in the decree.
Order XXI Rule 35(2).--Where a decree' is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum; or other customary mode, at some convenient place, the substance of the decree."
7. There is no denying the fact that decree issued in favour of the petitioner pertains to undivided share of the joint khata. Since no direction was issued in the decree for partition of the land perhaps for this reason learned Executing Court in the impugned order dated 04.5.2010 has also not directed partition of the joint khata rather warrant of possession was issued in accordance, with the mutation sanctioned on the basis of the decree. The above state of affairs therefore, attracts the provisions of Order XXI Rule .35(2), CPC pertaining to the delivery of symbolic possession. It is obvious that impugned orders passed- by learned Executing Court regarding attestation of mutation on the basis of decree as well as issuance of warrant of possession in the joint khata without making a direction for partition thereof being merely incidental to the execution of the decree for specific performance, do not suffer from' any jurisdictional error, material irregularity or legal infirmity. Reliance is made upon Manzoor. Ahmed and another Vs. Sain Ahmed and others (2010 CLC 789 Lahore); The learned Revisional Court therefore has rightly dismissed this revision petition lodged by the petitioner against the orders passed by learned Executing Court Petitioner has no case to invoke constitutional jurisdiction of this Court: This petition having no merit is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.