Shahid Karim, J:- This application under section 115 of the Code of Civil Procedure (CPC) by way of revision petition calls in question the judgment and decree dated 25.05.1999 passed by the District Judge, Lodhran. By the said impugned judgment and decree, the appeal filed by the respondents No.1 and 2 herein was accepted and the judgment and decree of Civil Judge, Lodhran dated 27.6.1998 was set aside.
2. Malik Waqar Haider Awan, Advocate has argued the matter on behalf of the petitioner No.1. It has been informed that Mr. Kanwar Akhtar Ali Advocate who was the counsel for the other petitioners has since died, however, the petitioners No.2 to 5 have not made any attempt to engage a new counsel. This petition is, therefore, being proceeded with irrespective of any new counsel having been retained by the said petitioners No.2 to 5.
3. The respondents No.1 and 2, Abdul Karim and Abdul Rahim filed a suit for declaration seeking the implementation of the decree dated 07.01.1985 in favour of the said respondents. A further relief of cancellation of registered sale deed dated 2.1.1990 and mutation No.2942 was also made. The Civil Judge, Lodhran dismissed the suit on 27.6.1998. The District Judge, Lodhran accepted the appeal and decreed the suit. The instant petition relates to the property of Rashid Ahmad whose property only is in dispute and is the subject matter of the instant revision petition which arises from the suit filed by Abdul Karim and Abdul Rahim.
4. The facts generally are not disputed. The courts below have also concluded that the primary facts are common between the parties and are not in dispute. For example, it is not disputed that there was a decree dated 7.1.1985 passed by Civil Judge, Lodhran and which was a compromise decree and by virtue of which land measuring 16 Kanals was decreed in favour of the respondents No.1 and 2. It is also not in dispute between the parties that no petition for the execution of the said decree was ever filed by the respondents. The pleadings are silent as to the mutation in the revenue record as a consequence of the said decree passed by the Civil Judge, Lodhran. It has been denied by the petitioners/defendants in the written statement that the possession was with the respondents No.1 and 2/plaintiffs.
5. The findings of both the courts below have proceeded on the basic facts which are not in dispute between the parties. However, a variation has occurred in the said findings as to which property was, in fact, to be handed over to the respondents No.1 and 2/plaintiffs and what was the effect of the decree dated 7.1.985.
6. The claim as set up in the plaint was on the basis of one Khata in which the land of the petitioners/defendants was comprised. According to the averments made in the plaint, the respondents No.1 and 2 were in possession of the said land and was in their possession by virtue of the decree of the Civil Court, Lodhran dated 7.1.85. This decree was a compromise decree and was made on a suit for pre-emption and it was stated that the respondents No.1 and 2/plaintiffs had paid the pre-emption amount. This again was not disputed in the written statement. However, the precise cause of action of the plaint was that a sale deed No.4 dated 02.01.1990 and mutation No.2942 had been sanctioned which was void and ineffective against the rights of the respondents No.1 and 2/plaintiffs. However, it was admitted in the plaint as also in the deposition of the witnesses produced by the respondents No.1 and 2/plaintiffs that the mutation in the revenue record had still not been effected in favour of the respondents No.1 and 2/plaintiffs.
7. In the written statement the claim of the respondents No.1 and 2/plaintiffs was denied without more.
8. The following issues were framed by the trial court:
1. Whether the plaintiffs are owner in possession of the suit land through decree dated 7.1.985? OPP.
2. Whether the registered sale deed No.4 dated 1.2.90 and subsequent mutation No.2942 in favour of defendant No:6 to 8 are illegal, void, and ineffective upon the rights of the plaintiffs and liable to cancellation? OPP.
3. Whether the suit is not maintainable in its present form?
4. Whether this court has got no jurisdiction to entertain and try this suit? OPD.
5. Whether the plaintiffs have got no cause of action to file this suit? OPD.
6. Whether the plaintiffs are estopped by their own words and conduct from bringing this suit? OPD.
7. Whether the suit is frivolous and instituted to harass the defendants? OPD.
8. Whether the suit is based on malafide and the defendants are entitled to special costs from the plaintiffs U/S 35-A of CPC? If so, to what extent? OPD.
8-AWhether the suit is time barred? OPD.
9. Relief.
9. The primary issues for determination before the courts below were issues No.1, 2 and 3 and 8-A.
10. The questions which arose out of the pleadings of the parties and which exercises a gravitational pull on the controversy between the parties were: i) Can the execution be sought of the decree dated 7.1.985 in the garb of a suit for declaration? ii) Does the suit relate to the land/property handed over or comprising the subject matter of the decree dated 7.1.1985.
11. It is submitted by the learned counsel for the petitioners that the suit is based on mala fide and eclipses the true and real facts. According to him, the petitioners have excess land in the Khata in which the land which was the subject matter of the decree dated 7.1.85 was situated and, therefore, the petitioners/defendants cannot be restrained from alienating the rest of the property which forms part of the joint Khata in which the property subject matter of the decree dated 7.1.85 is also situated.
12. The lower appellate court has premised its finding on the ground that a decree for pre-emption even if not executed, the right conferred thereby is not extinguished and that the decree holder, if in possession of the said property cannot be dispossessed. This proposition is not disputed. However, the lower appellate court could only proceed on the said assumption if the respondents No.1 and 2 were in possession of the property which was the subject matter of the decree. It has been averred in the plaint as well as in the statement of PW.1 that the respondents No.1 and 2/plaintiffs were in possession of the property, which was the subject matter of the decree and also that the mutation had not been sanctioned in their name with regard to that property. However, the PW.1 in the same breath, states too that warrants for possession were got issued but were not enforced. It is not also disputed that no execution has been filed for the implementation of the decree dated 7.1.85. It may be so that the decree in favour of a person confers a right which is indefeasible yet when the dispute is regarding a certain specific property, then it becomes incumbent and obligatory for that decree to be executed and of consequential steps to be completed. The question in the instant suit ought to have been a simple one. It was whether the respondents No.1 and 2/plaintiffs were in possession of the land which was decreed in their favour by the decree of the civil court dated 7.1.85. If it was not then a suit for declaration was not maintainable. It has nowhere come on the record that the respondents No.1 and 2/plaintiffs were, in fact, in possession of that property. The trial court has returned a finding that the respondents No.1 and 2/plaintiffs had failed to prove that they were in possession of the property which fell to their share as a result of the decree. The trial court has further held, upon preponderance of evidence, that the decree was in respect of property situated in two Khatas whereas in the instant suit, property measuring 16 Kanals has been claimed out of one Khata. This finding is based on valid and justifiable grounds and the lower appellate court's judgment fails to take care of this aspect. The instant suit for declaration filed by the respondents No.1 and 2/plaintiffs seems to be an attempt for the execution of the decree dated 7.1.85 by a circuitous route. Certainly, a declaration can be sought in respect of a right in a property but only as to property which accrues to a person and not with regard to another property. The decree dated 7.1.85 clearly gave a right and ownership over a certain property to the respondents No.1 and 2 and which property has clearly been spelt out in the said decree Ex.P.1. The courts could not have travelled beyond the said decree and the property delineated therein. Also the respondents No.1 and 2/plaintiffs could have laid a claim only to this property and none else. They could not have laid a challenge to the registered sale deed No.4 dated 2.1.1990 which was in respect of different property though in the same Khata.
13. The Civil Judge, Lodhran has concluded that the basic facts were not in dispute between the parties. However, the Civil Judge, Lodhran has proceeded to render a finding primarily on the basis that the respondents No.1 and 2 were in possession of the property which they were entitled to under the decree dated 7.1.1985. He has referred to the copy of Khasra Gardawri Ex.P.4 to rebut the contention that the respondents No.1 and 2/plaintiffs were in possession of that property. The civil judge went on to hold that the decree which was the basis of the claim of the respondents No.1 and 2/plaintiffs, was in respect of two Khatas from which the land 16 Kanals was to be given to the said respondents No.1 and 2/plaintiffs.
14. As stated above, the dispute seems to be regarding the execution of the decree dated 7.1.1985 and the specific property contained therein which fell to the share of the respondents No.1 and 2/plaintiffs. Any declaration in this regard would be tantamount to going behind the decree which a court of plenary jurisdiction cannot do on a suit for declaration. Moreover, this would also be tantamount to proceedings in the nature of execution of the earlier decree dated 7.1.1985 in the garb of a suit for declaration. This cannot be permitted to be done.
15. The instant case involves the resolution of two aspects. One relates to the true construction of the decree of 7.1.1985 and, indirectly, for the said decree to be executed; second regarding the cancellation of registered sale-deed No.4 dated 2.1.1990 and mutation No.2942. The resolution of one depended on the other. In fact these are inextricably linked. Since the respondents No.1 and 2/plaintiffs have failed to prove that the property sought to be alienated vide the impugned sale deed formed part of the decree of 7.1.985, a suit for declaration was not maintainable. The findings of the civil court are upheld and sustained on these aspects.
16. In view of the above, this revision petition is accepted and the judgment and decree passed by the District Judge, Lodhran dated 25.05.1999 is set aside.