1. AMIN-UD-DIN KHAN, J.--- Through this appeal, appellant has challenged the order/judgment dated 7-12-2011 passed by learned Additional District Judge, Sarai Alamgir, whereby the appeal filed by the appellant was dismissed. He has also assailed the order dated 25-5-2011 passed by learned Civil Judge 1st Class, Sarai Alamgir, whereby an objection petition filed by the appellant was dismissed.
2. 2.The facts, in brief, are that Muhammad Ameen etc. (respondents Nos.1 to 18) and their predecessor filed a suit for partition, declaration and consequential relief on 30-5-2001. In the suit it was stated that in registered Sale-deed No.233 attested on 8-2-1993 in favour of defendant No.6 (Murawat Ali), predecessor of defendants Nos.1 to 5, namely Muhammad Siddique transferred 7- marlas of land out of the suit-land, whereas by cutting in the sale-deed it was mentioned as 14- marlas and a house.
3. 3.The written statement was filed and suit was contested. After the close of trial, vide judgment and decree dated 22-11-2008 suit was partially decreed holding that through the Sale-deed No.233 dated 8-2-1993, 7-marlas land was transferred and to the extent of other 7-marlas this sale-deed was cancelled. However, to the extent of prayer of partition suit was dismissed holding that parties are already in possession of their respective shares. Both the parties preferred appeals. Vide judgment and decree dated 23-2-2010 passed by learned first appellate court, the appeal filed by the appellant was dismissed, whereas the appeal filed by the plaintiff was accepted as prayed for.
4. 4.It will not be out of place to mention here that it was a suit for partition in which the preliminary decree was required and after that final decree suggesting mode of partition was required. The record shows that none of the parties further challenged the judgment and decrees passed by learned first appellate court. I have also noticed that learned Additional District Judge has observed in its judgment that as the possession of suit property was handed over to Murawat Ali, respondent in the execution of order passed in his suit filed for possession during the pendency of suit in hand, (Learned counsel for the parties have informed that the said suit was under section 9 of the Specific Relief Act, 1877 filed by Murawat Ali), therefore learned first appellate court found that the trial Court was having jurisdiction under section 144 of the C.P.C. for restoration of possession.
5. The plaintiff-respondent filed an execution petition wherein the appellant filed an objection petition stating therein that the decree is not executable and warrant of possession has wrongly been issued with regard to the house which is in possession of appellant/objection petitioner.
6. 5.Learned counsel for the appellant has referred to Para 2 of the plaint to argue that plaintiffs have possession of appellant over 7-marlas in their suit, therefore resisted the execution with regard to the constructed house and it is the case of appellant/objection petitioner that with regard to vacant land, warrant of possession can be issued. Even learned counsel for the appellant has argued that the decree was defective, as no preliminary or final decree was passed, therefore decree is not executable. Further states that the orders passed by both the courts below are against the law, which are liable to be set aside.
7. 6.On the other hand, learned counsel for the respondents raised a preliminary objection that second appeal is not maintainable. At this stage, learned counsel for the appellant states that even in the interest of justice the same can be treated as civil revision and this court has ample powers to decide the same as civil revision. Further states that the appeal was filed within the period of limitation and certified copies of all the requisite documents are annexed with this appeal. In the circumstances of case, this objection of learned counsel for the respondents is technical one. As such, this appeal is being decided as civil revision on merits.
8. 7.Learned counsel for the respondents has tried to argue the case by sentimental impression and with a dramatic behaviour and dialog. His behaviour was not appreciable during the course of arguments. He has argued that the respondents are poor persons and they are running from pillar to post to achieve their right; that the conduct of appellant-revision petitioner was fraudulent from the day first and during the pendency of suit in which the execution petition is pending, he fraudulently filed a suit under section 9 of the Specific Relief Act and in execution thereof got possession of suit-land. Further argues that both the courts below have rightly passed the orders.
9. When confronted to learned counsel for the respondents that when the suit for partition was filed by the respondents and how the decree passed at the stage of appeal is executable when no preliminary or final decree was passed. Learned counsel could not respond to this question with any legal justification. He was further questioned that when there was 14-marlas of suit-land, for which portion he is claiming the possession? Learned counsel states that he is claiming the possession of constructed house consisting upon 7-marlas. Then learned counsel questioned that whether any decree is in favour of the respondents for specific 07-marlas for which warrant of possession has been issued. Learned counsel also could not show any judgment/decree or order in favour of respondents.
10. 8.I have heard the learned counsel for the parties at full length and also gone through the record minutely.
11. 9.Admittedly, the suit was for partition of suit property as well as for declaration. To the extent of declaration suit was decreed by learned trial Court and to the extent of partition it was dismissed.
12. At first appellate stage, learned first appellate court though decreed the suit observing therein that learned trial Court was competent to restore the possession of plaintiffs in accordance with section 144 of the C.P.C. I do not want to comment upon this observation. If there is any right of plaintiffs for restoration of possession under section 144 of the C.P.C., they may move for the same before the proper forum but in a suit for partition learned first appellate court while ignoring the law straight- away granted a decree without passing a preliminary decree or a final decree with specifying the right of every party on specific portion of property. The decree being defective one, therefore no warrant of possession for specific property can be issued in execution of said decree. Therefore, this question was to be seen by the Executing Court and learned lower appellate court. Both the courts below failed to exercise jurisdiction vested in them by law. In this view of the matter, this appeal converting into civil revision is accepted and the impugned orders passed by both the courts below are set aside. However, the respondents may move for redressal of their grievance in accordance with law to the competent forum, if advised.