MUHAMMAD NAEEM ANWAR, J. This civil revision under section 115 of the Code of Civil Procedure, 1908, has been filed against the judgment dated 02.09.2019 of learned District Judge, Khyber, whereby appeal filed by the petitioners against the order dated 01.03.2018 of learned Assistant Political Agent, Landikotal, District Khyber, was dismissed. During pendency of the instant revision petition, the petitioners submitted CM No. 213-P/2021 for placing on record certain documents, which, according to them, are essential for just decision of the case, therefore, the same is allowed and the documents, appended with the CM, are made part and parcel of the main petition.
2. The bone of contention between the parties is the property , situated in the estate of Landi Kotal, District Khyber .
Brief history of the case, as reflected from the record, is that in year, 1970; a dispute arose between the parties over the property in question which was settled through a verdict of the Jirga Members on 05.10.2070.
Subsequently, the respondent Haji Naeem Shah again started interference in the disputed property, therefore, Zarmash, one of the petitioners, submitted an application to the Political Tehsildar, Landikotal, on 16.03.2009 by stated therein that the land which he owned under a decision dated 05.10.2070 had been occupied by Haji Naeem, upon which, the Political Tehsildar obtained a report from the Patwari and, thereafter, passed an order dated 20.06.2010, which was assailed before the Commissioner FCR, Peshawar, in appeal, who, vide order dated 22.10.2010, remanded the case back with the observation that it was a case for partition, it should have been decided under the Revenue laws and if of title then under section 8 FCR, therefore, directed the Assistant Political Agent Landikotal to proceed with the case and decide it on merits.
On receipt of the case file, learned Assistant Political Agent, Landikotal, with the consent of the parties, convened a Jirga, vide order dated 28.05.2011. The Jirga members submitted a detailed report on 13.05.2012, which was confirmed by the Assistant Political Agent, Landikotal, on 25.05.2012. Since it was a unanimous decision of the Jirga, therefore, none of the party had challenged it before the upper forum. Later on, the petitioners submitted an application to the Assistant Political Agent, Landikotal, for execution of the order dated 25.05.2012, which was marked to the Political Tehsildar, Landikotal, but of no avail. Thereafter, the petitioners approached the FATA Tribunal, who vide order dated 25.08.2016 directed the Assistant Political Agent, Landikotal, for implementation of the order dated 25.05.2012 but even then, the matter was not settled.
Again, the petitioners submitted an application to the Commissioner FCR, Peshawar Division, for implementation of the order dated 25.05.2012, who, vide order dated 25.08.2016, referred the case to the Assistant Political Agent for implementation of the court order. The Assistant Political Agent, though, vide order dated 01.03.2018, sent the matter to the Political Tehsildar, Landikotal, for implementation of the court order already issued on 25.05.2012, but, with certain observations that "the land which is in possession of Zarmash etc has been encircled by a wall as per oath over it". The relevant portion of the order, for ready reference, is reproduced below:- "The Agency Patwari vide his report verified that the subject land falls in khasra No. 401 which is "Shamilat-i deh" as per revenue record. Zarmash etc have no ancestral/personal property according to the revenue record. On 05.10.1970, the land which is in possession of Zarmash etc has been encircled by a wall as per oath over it. The land located outside the boundary wall falls in the disputed khasra No. 401 and the khasra no. 400 falls in the share of Haji Naeem Shah etc. The report submitted by the Agency Patwari was read over to the parties accordingly.
The case file is sent to the Political Tehsildar , Landikotal, for implementation of the court order already issued on 25.05.2012 and the instant order sheet."
3. Feeling aggrieved from the observations recorded by the learned Assistant Political Agent, Landikotal, the petitioners filed an appeal before the Commissioner, Peshawar, on the ground that findings of the Assistant Political Agent are in complete deviation of the verdicts of the Jirga dated 13.05.2012 and 05.10.1970 as well as order of the court dated 25.05.2012. In the meantime, on the eve of the twenty-fifth amendments in the Constitution of the Islamic Republic of Pakistan, 1973, the lis was transferred to the District Judge, Khyber, who, vide order dated 02.09.2018, also dismissed his appeal.
4. According to the petitioners, in the impugned order dated 01.03.2018, the observations that "the land which is in possession of Zarmash etc has been encircled by a wall as per oath over it", are wrong as in the decision of Jirga Members dated 05.10.2070, which has been endorsed by the Jirga on 13.05.2012, it has clearly been mentioned that the land toward the Southern side of the `1\lala' is their property, which has been confirmed by the order of Assistant Political Agent dated 25.02.2012, therefore, the observations of the learned Assistant Political Agent in the impugned order dated 01.03.2018 as to the specification of land, which were confirmed by the appellant court, are incorrect and in excess of his jurisdiction, hence, the instant revision petition under section 115 of the Code of Civil Procedure, 1908, was filed.
5. The gist of the submissions of learned counsel for the petitioners is that when the matter had already been settled by the decision of Jirga dated 05.10.1970, duly confirmed by the court, and remained unchallenged before the upper forum, then it should have been acted upon and the application of the petitioners for its implementation/execution was to be decided within the parameters of execution of decree as the Executing court cannot go beyond the decree, therefore, the learned executing court/Assistant political Agent was not competent to determine as to who is owner of the property, while on the other hand, learned counsel for the respondent supported the impugned orders by submitting that since the matter between the parties had already been decided on 05.10.2070, 24.08. 1980, 14.11.1982, 1.3.89, 14.11.08, 28.04.2010, 25.05.2012 and 31.10.2017, therefore, the impugned orders of the fora below are in line with the substantive as well as procedural law, which needs no interference by this court.
6. I have considered the submissions of learned counsel for the parties and gone through record of the case.
7. It is established from the record that the dispute between the parties as to the property in question has been settled twice by Jirga members which verdict has also been confirmed by the court on 25.02.2012 and the only question that has remained alive from the last five decades is the implementation of the judgment and handing over the physical possession of property.
8. Admittedly, the order and decree dated 25.05.2012 has been passed with the consent of the parties on the basis of the verdicts of the Jirga Members dated 13.05.2012 and 05.10.1970, which also gained finality as none of the party had challenged it before the upper forum and now an application in shape of execution petition is pending adjudication for satisfaction of the decree. As per decision of the Jirga dated 08-10-1970, the property adjacent to the southern side of "Nala" is the ownership of petitioners, and towards northern side is the ownership of respondents, whereas "Nala" is their joint property. The contents of undisputed & unchallenged settlement of jirga, for ready reference are reproduced as under:- {{Urdu Text}} Record reveals that a sketch was prepared showing the flow of water from west to east, & towards south there is Shamilat-i deh (Khasra No.401) which is adjacent to khasra No. 400 owned by respondents. As against that, just adjacent to northern side of Nala, the property known as "ghair Mumkin Ghanday" which is contiguous to constructed property of petitioners. The dispute is with regard to "Ghair Mumkin Ghanday" adjacent to the "Nala". Respondents claim it to be the part of khasra No. 400 (shamilat-i-deh) with which petitioners have no concerns as their property has been separated through boundary wall, properly mentioned in sketch. Admittedly, the parties are litigating against each other for more than 50 years, regarding the matters which had already been settled amongst their predecessor in interest in the year 1970.
Petitioners had never claimed it to be their ownership from their ancestors. It is worth mentioning that the Nala was held to be the boundary line between both the parties. Learned executing court (Assistant Political Agent, Landi Kotal Sub Division, Khyber Agency) as then it was erred by holding petitioners have no ancestral property and that their property was encircled. Likewise, learned appellate court while deciding the appeal has made a reference to the decision of 15-05-2012 that the property was found to be part and parcel of Khasra No. 401, which was not the determining facture on appeal, as such both the learned forum below has committed an illegality. The executing court was not required to determine the boundaries of Khasra Nos.
400 & 401 rather to execute the decision/ decree as it is.
9. During the course of arguments learned counsel for respondents contended that the petitioners are required first to determine the boundaries of both the Khasra Nos. 400 & 401 and thereafter, if they could prove their stance, they would be entitled for any such relief. True, had there been any dispute regarding the boundaries the same would have dealt with in accordance with law, but at this juncture when the decree holder seeks execution of order/decree, the matter already laid to rest or the one which is not the issue, institution of fresh suit for both the parties are barred under order XXI rule 103 of C.P.C, 1908. That certain orders conclusive and suit barred. Rule 103. All questions arising as to title, right or interest in, or possession of immoveable property between an applicant under rule 97 and the opposite party, or between an applicant under rule 100 and the opposite party, shall be adjudicated upon and determined by the Court, and no separate suit shall lie for the determination of any such matter. Therefore, the objection of respondents has no force at all. The "Nala" is natural one and existed from the last so many centuries for floodwater. Undisputedly, it is the natural channel for rainy/flood water i-e when rain falls on a catchment, water that is not absorbed into the soil flows downhill and collects in low lying areas where it forms a stream.
Insofar as the remaining property is concerned, the land situated towards the Southern side of the `Nala' was in the ownership of the petitioners while towards the Northern side, it was given to the respondents as per decision of the Jirga dated 5.10.1970, duly endorsed by the Jirga Members in its decision dated 14.05.2012 and in this respect a sketch regarding khasra No. 401 on the basis of record-of-right for the year, 1919 was also prepared.
10. The mechanism with regard to execution of the decree is provided in sections 36 to 47 read with Order XXI of the Code of Civil Procedure while "Decree " has been defined in subsection (2) of section 2 of the Code which means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final, while "decree holder" has been defined in sub-section 3 of section 2 of the Code, which means any person in whose favour a decree has been passed or an order capable of execution has been made.
11. There is no cavil with the proposition that a court executing a decree cannot go beyond the decree and is required to execute the decree as it is and that the court has no jurisdiction under the provisions of the Code to broaden its scope as held by the Hon'ble Supreme Court in Allah Ditta's case (2003 SCMR 1202) that it is an established rule that Executing Court cannot extend its jurisdiction to go behind the decree and question of its correctness except in a case in which decree is silent that what property was subject-matter of execution.
The Executing Court can look into the judgment in order to find out that property brought for the satisfaction of decree actually belonged to the judgment-debtor but cannot entertain an objection relating to the dispute of title, and, its determination which may change and alter the terms of decree. Reliance can also be placed on the on the principle laid down in Province of Punjab through Collector, Bahawalpur Versus Ghulam Rasool and others (1990 SCMR 1106). From the provisions of Section 47 C.P.C, it is clear that the court executing is empowered to deals with events subsequent to issuance of the decree and has to decide all the questions, arising out between the parties to the suit in which the decree is passed when such question relates to the execution, discharge or satisfaction of the decree, but does not empower to bring about changes in the rights and obligations of the parties that have already been determined by the decree. It is well settled that decree is executed in spirit of its terms and conditions and not in derogation thereof.
12. Thus, in view of the above discussion, the observations/findings of learned executing court/Assistant Political Agent recorded in the order dated 01.03.2018 that the "the land which is in possession of Zarmash etc. has been encircled by a wall as per oath over it" are not correct and hereby expunged, while rest of the findings as to the sending of the matter for implementation of the court order dated 25.05.2012 are correct and needs no interference by this court.
13. Accordingly , the instant revision petition is allowed in the above terms, however parties shall bear their own cost.