MOHAMMAD AZAM KHAN, CJ. --- The captioned appeal with the leave of the Court arises out of the judgment and decree of the High Court dated 6.2.2006.
2. On 28th August, 1998. The predecessors-in-interest of respondents No.1 to 7 and respondents No.8 and 9 filed a suit for possession in aspect of land measuring 4 kanals, 1 marla, comprising khewat No.52, situate in village Bathroi, Dudyal, on the ground that they are owners of the land on the basis of decree dated 19.3.1965 passed by the High Court in their favour on the ground of right of prior purchase and mutation No.16 has been attested in their favour on 11.8.1990. They alleged that the defendants are cultivating the land with the consent and permission of the plaintiffs. They have demanded the possession of the land and the defendants have now refused to handover the same. The defendants refuted the claim and alleged that the decree on the ground of right of prior purchase was passed in favour of the plaintiffs in 1965. The application for execution of decree was dismissed being time barred, as such under Article 182 of the Limitation Act, 1908 the decree has become ineffective and their rights have been extinguished. The defendants filed a counter suit on 16th March, 1999, for cancellation of mutation No.16 attested on 11th August, 1990. They also sought perpetual injunction that the defendants shall refrain from interfering into the possession of the land. The trial Court consolidated both the suits vide order dated 29th November, 1999. After necessary proceedings the trial Court dismissed the suit filed by Fazal Ellahi and others on 31.12.2003, while the suit filed by Muhammad Zubair and others was decreed. Dissatisfied from the judgment and decree of the trial Court, the respondents herein filed an appeal hi the Court of Additional Distiict Judge Dudyal on 20th March, 2004. The same was dismissed on 27th October, 2004. The respondents herein filed second-appeal in the AJ&K High Court on 18th January, 2005.
The-appeal was accepted vide impugned judgment and decree on 6th February, 2006.
3. Ch. Jahandad Khan, the learned counsel for the appellant, argued that the judgment of the High Court is against the law and not maintainable. The decree on the ground of right of prior purchase was passed in favour of Plaintiffs-respondents on 19th March, 1965. The decree-holders filed an application for execution of decree on 23rd September, 1971. The application was dismissed by the Sub-Judge on 30th July, 1972 being time barred. The appeal filed by the decree-holders before the District Judge was also dismissed on 30th january, 1974 and ultimately 'second appeal was also dismissed by the High Court on 20th January, 1975. He contended that the subsequent suit for possession on the basis of same decree not maintainable and merits dismissal. The pre-emption decree has to be executed within three years as provided in Article 182 of the Limitation Act and after the prescribed period of limitation, the decree could not be executed. The appellants remained in continuous possession of the land in dispute. The rights of the decree-holders after dismissal of the execution application' ave been extinguished. The mutation on the basis of said decree could not be sanctioned and attested because after the dismissal of execution application, the decree holders remained no more owners of the land. He further argued that the subsequent suit is not maintainable. The learned counsel further argued that the claim of plaintiffs/decree-holders is that as a result of compromise they have taken the possession of the land. The fact of compromise is not proved from the record, therefore, the second suit is not maintainable He referred to the cases reported as Moti Lal Banker v. Maharaj Kumar Mahmood Hasan Khan [AIR 1968 SC 1087] and Mahmood Khan vs. Hassan Khan Durrani [PLD 1990 SC 778].
".... The executing Court can determine all questions relating to agreement postponing the execution of the decree, and ,the incidental term as to payment of the higher rate of interest. The agreement to pay the higher interest is enforceable in execution of the decree."
The above referred authority is not relevant to the casein hand.
PLD 1990 SC 778], the proposition before the Supreme Court was whether an application for execution of a decree passed by a civil Court, which was originally governed by Article 182 of the Limitation Act, 1908, after omission of said article and amendments effected in section 48 of C.P.C.
By Law Reforms Ordinance, 1972, governed by residuary Article 181 of the Limitation Act or section 48 of C.P.C., is applicable or not. The proposition resolved in the referred case is not relevant to the present case.
4. While controverting the arguments of the learned counsel for the appellant, Raja Hassan Akhter, the learned counsel for the respondents, argued that after depositing the decretal amount, the title of the property has vested in the plaintiffs-respondents. The defendants handed over the possession of the property to the plaintiffs through a private settlement after dismissal of execution application. Since they were living in England they handed over the land to the appellant for cultivation and in the year 1997 when they demanded the possession ' back, the appellant- defendants refused to handover the possession. The suit for possession is competently filed. There is no question of application of sections 11 and 47 of the Code of Civil Procedure. The learned counsel further argued that the suit for cancellation of mutation filed by the appellant was not competent. The Civil Court had no jurisdiction in the matter in the light of bar contained in Section 172, of the Land Revenue Act, 1967. He argued that the suit for possession Was filed the basis of title in the year 1998. At that, time Section 28, aid Article 144 the Limitation Act, 1908 had already been deleted-from the statute. The appellant never claimed adverse possession over the land. The judgment of the High Court is perfectly legal. The learned counsel referred to the cases reported as Molvi Abdul Qayyum vs. Syed A.I Asgher Shah and 5 others [1992 SCMR 241], Dr. Niaz Muhammad and others vs. Sh. Muhammad Ahmad and another [1988 SCMR 1016], Muhammad Rafique and 2 others vs. Noor Khan [2003 YLR 1434] and A.I Ahmad and another vs. Muhammad Fazal and another [1972 SCMR 322].
5. We have heard the learned counsel for the parties and perused the record. It is admitted position that the decree for possession on the basis of right of prior purchase was passed in favour of plaintiffs-respondents on 19' March, 1965. An application for execution of decree under Article 182 of the Limitation Act is competent within a period of three years. The decree-holders, respondents herein, filed application for execution of decree beyond the period of limitation, which was dismissed. The appeals before the District Judge and the High Court also met the same fate. In the suit for possession filed on 28th August, 1998, the plaintiffs-respondents claimed that they are owners of the land on the basis of decree passed in their favour on 19th March, 1965. On the of said decree, mutation No.16 was sanctioned and attested in their favour. It was also alleged by the plaintiffs, respondents herein, that the possession of the land was handed over to them and the defendants were cultivating the land with their consent because the plaintiffs and defendants are co-sharers and relatives. It is, specifically claimed by the plaintiffs, respondents herein, that in the last year, i.e. 1997, they demanded back the possession of the land from the defendants, who had refused. Thereafter, they are continuously demanding the possession of the land in dispute. The question which needs resolution is whether after the dismissal of execution application, suit for possession on the basis of decree of prior purchase, which could not be executed, is maintainable and whether mutation can be sanctioned on the basis of such a decree. Rule 14 of Order' XX of C.P.C. Governs the decree in pre-emption suits. We deem it necessary to reproduce the same which is as under:-
14. Decree in pre-emption suit. (1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase money has not been paid into Court, the decree shall-
(a) specify a day on or before which the purchase-money shall be so paid; and
(b) direct that on payment into Court of such purchase- money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if, the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs." xxx xxx xxx xxx XXX xxx."
Provisions of rule 14 of Order XX CPC provide that when the Court passes a decree of pre-emption in respect of sale of a particular property and the amount has not been paid, the Court shall specify a day on or before which the purchase money shall be so paid. After the payment has been made, the defendant shall deliver the possession of property to the plaintiff and title of plaintiff shall be deemed to have accrued from the date of such payment. The rule also postulates that if purchase money and the costs are not so paid, the suit shall be dismissed with costs. The title in property passes to the plaintiff, decree-holder, on the payment of decretal amount. Where the requirements of rule 14 have been complied with by the plaintiff, irrespective of fact whether possession was delivered to him or not, title in property would vest in plaintiff and he would be the owner of the land in question. The pre-emptor/decree holder becomes the owner of the property from the date of payment of preemption money.
' The High Court while delivering the impugned judgment relied upon the case titled Muhammad Saddiq vs. Ghasi Ram [AIR 1946 Lah. 322] wherein it was observed as under:- "A right of pre-emption can be said to have been effectively exercised or enforced only when the pre-emptor has become actually substituted for the vendee in the original bargain of sale. Where the pre-emptive right is sought to be enforced by means of a suit, such substitution takes place and the pre-emptive right is deemed to have been exercised or enforced only when the price has been paid by the pre-emptor into Court in compliance with the decree passed in his favour. When the right is sought to be enforced by means of a private treaty out of Court the substitution of the pre-emptor for the purchaser takes place and the pre-emptive right is exercised or enforced when the price is, either paid or tendered to the purchaser and he has actually surrendered the bargain in favour of the pre-emptor. There can be no enforcement of the preemptive right except by complete divestiture of the vendee's title and the vesting of such title in the pre-emptor."
The proposition came under consideration of . Supreme Court of Pakistan in a case titled A.I Ahmad and another vs. Muhammad Fazal and another [1972 SCMR 322]. The facts of the case were that during the pendency of a pre-emption suit the matter was compromised between the parties and decretal amount was paid in the Court and a consent decree was passed by the Administrator/Civil Judge. The respondent-decree-holder, failed to take any step for execution of decree. Later on, he got a mutation sanctioned on the basis of said decree. A review from the order of sanctioning the mutation was sought. The matter went up to Board of Revenue and then by way of writ petition in the High Court, the High Court ordered for maintaining the mutation. This order was challenged by way of P.L.A. Which was refused. It was observed by the Court as under:- "The dispute between the parties is in respect of 5 kanals and 1 marla of land, situated in revenue estate of village Nawan Rangpura, Tehsil and District Gujrat. This land was sold by Siraj Din and his two brothers Muhammad Din and Mehr Din on the 26th October, 1960, in favour of A.I Ahmad and Khalil Ahmad. Muhammad Fazal son of Siraj Din filed a suit for pre-emption. The matter was compromised. On the 8th December, 1961, an amount of Rs.7,000 was paid in Court and a consent decree was passed by the Administrative Civil Judge. Respondent No.1 took no step for execution of decree. On the 5th February, 1961, he moved an application before the Revenue Assistant for sanctioning of the mutation on the basis of the decree of the Civil Court. The Assistant Collector Grade II, sanctioned mutation No.4209 on the 7th July 1967. The petitioners sought review of this order. The matter was reported to the Collector for permission to review. The Collector granted the requisite permission on the 27th July 1967. On the 7th August 1967, the Assistant Collector Grade II cancelled mutation No.4209. This order was challenged in appeal and the Collector accepted it on the 23th December 1967. The matter was remanded to the Assistant Collector Grade II for fresh decision. On the 2"d March 1968, the Assistant Collector Grade II again sanctioned the mutation. On appeal, the Collector set aside this order on the 7th August 1968, on the ground that as the respondent had not applied for the execution of the decree within the prescribed period of limitation, the decree had become ineffective. The matter was taken to the Additional Commissioner in appeal which was dismissed on the 3rd December 1968. A revision petition was filed before the Member, Board of Revenue, which was dismissed on the 31st July 1969.
The respondent challenged this order in Writ Petition No.792 of 1970 which was accepted by Chauhan, J. On the 1st November 1971. He restored the order of the Assistant Collector Grade II dated the 2"d March 1968. The matter was taken in L.P.A. No.252 of 1971 which was dismissed in limine on the 6th April 1972. The petitioners seek permission to file an appeal against the said order."
"................. In our opinion, the view of the High Court is correct that the Revenue authorities were under obligation to sanction mutation on the basis of the decree.
2003 YLR 1434] the facts were that the appellants filed a suit for possession on the ground that the pre-emption decree was passed in their favour. They have deposited the decretal amount. The decree was not executed. After necessary proceedings the trial Court decreed the suit. The District Judge accepted the appeal, set aside the decree. The decree was challenged by way of revision in the High Court. The proposition before the Court was that when the decree is not executed, whether the suit for possession is maintainable or it is barred by Section 47 of the Code of Civil Procedure. It was observed by the Court as under:- "8. From the plain reading of the above provisions of law, it reveals that this section does not bar to avail the remedy but only regulates the Forum for the enforcement of rights so as to channelize all matters relating to the execution, discharge or satisfaction of the decree to the Executing Court.
The bar contained in section 47 C.P.C. Is only attracted to the cases where execution proceedings have been filed for the satisfaction of the decree and if the execution proceedings are pending then no fresh suit shall be filed and all 'questions would be determined by the Executing Court, wherein the party may file objections. The object of this section is to afford speedy relief to the parties in the matters arising out of the execution of a decree."
9. In the instant case, no execution proceedings have been filed for the satisfaction of the pre- emption decree by the decree-holders and the terms of the decree had been complied with by the plaintiffs by depositing the decretal amount. The question involved in the matter is that the petitioners are the owners of the property on the basis of the decree of pre-emption. As the decree has been passed in favour of the plaintiff and any Court has not set it aside, therefore, it still holds the fields. Although the plaintiffs did not file the execution proceedings of the decree but they had become the owners of the property when the judgment and decree had been passed in their favour on 25.2.1974 and the defendant ceased to be the owner of the suit property thereafter.
10. As soon as the decree is passed in favour of the plaintiffs- petitioners, the defendant- respondent would be deemed to be an illegal occupant of the property and if the decree is implemented in the Revenue record then the status of the defendant-respondent would be deemed to be as a tenant under the plaintiffs-petitioners. It has been observed by the superior Courts that the Revenue Officers are under legal obligations to implement the decree of pre- emption in the Revenue record even if the period of execution had expired and the time limit would not be a bar for implementing the decree in the Revenue record."
It was again observed in para 11 as under:- "11. Three legal remedies were available for the plaintiffs/decree holders i.e. (i) to file execution petition for the implementation of the decree of possession, (ii) to apply to the Revenue Officer for implementation of the decree in the Revenue record in their favour, (iii) to file a suit for ejectment against the defendant-respondent under the Punjab Tenancy Act, as after passing of the decree of pre-emption in favour of the plaintiffs-petitioners, the defendant-respondent either had acquired the status of an illegal occupant or as a tenant under the decree-holder and (iv) to file a suit for possession on the basis of title which he acquired through decree."
1988 SCMR 1016] it was observed as under:- "It is specifically' provided in this Rule that the title in the property shall be deemed to have accrued from the date of such payment. So the execution of the decree and the withdrawal of the money or its payment to the vendee is not relevant or of consequence for the vesting of the title in the pre- emptor."
7. There is no quarrel with the proposition of law that all the questions relating to execution of decree have to be settled in the light of section 47 of C.P.C., but in the present case the question is not that of execution of decree. After depositing the decretal amount on the prescribed date in the Court, the title of property has been transferred to the decree-holders and they have become owners of the land. On the basis of said decree, the mutation has already been sanctioned in their favour. The plaintiffs, respondents, claimed that through a private settlement they have taken the possession of the land and the land was handed over to defendants for cultivation purposes because the plaintiffs were out of country. The suit for possession can competently be filed under section 8 of Specific Relief Act on the basis of title. In the present case the suit was filed on 28.8.1998 when there was no prescribed limitation on the statute for filing a suit for possession on the basis of title as Section 28 and Article 144 of the Limitation Act had already been deleted through amendment brought in the Limitation Act on 7.12.1996 vide Ordinance No.LIV of 1996. After deletion of Article 144 of the Limitation Act, the owner can file a suit at any time. We are fortified in our view by the judgment of this Court delivered in the case titled Feroz Din Khan vs. Muhammad Latif Khan and 5. Others [PLJ 2012 SC (AJ&K) 46] wherein it was observed that after deletion of Article 144, a suit for possession on the basis of title may be filed at any time. This view also finds support from another judgment of this Court titled Isamdad Khan and another vs: Muhammad Khurshid Khan and others [Civil Appeal No.52 of 2005 decided on 10.4.2o12].
Mutt th 'II No.16 was sanctioned on the basis of decree passed , in fawn! ,,t1111, respondents herein, on 19th March, 1965. The revenue authorities are .Under obligation to act upon the decree of the Civil Court. The suit for possession was competent.
The result of above discussion is that finding no force in this appeal it is hereby dismissed with no order as to costs.