SYED ARSHAD ALI, J. Haji Sher Muhammad who is petitioner in this petition had filed a suit No.120/1 on 20.09.2012 wherein; he sought a decree for declaration to the effect that the disputed property was in his possession which is situated in Khasra No.107 Mauza Shabqadar be transferred in his name in view of a notification issued by provincial government.
2. The suit was not contested by any party as the petitioners had failed to make proper parties in his plaint. The provincial government which is admittedly owner of this property was sued through District Revenue Officer and not in the manner provided under the law. This suit was decreed by the trial court on 04.12.2012 ex-parte holding the plaintiffs entitled to the ownership as well as possession of the property against consideration of Rs.50,000/- per marla payable to the provincial government. However, the perusal of the revenue record for the year 1926-1927 clearly suggest that Khasra No.107 comprised of total land measuring 07 kanals 06 marlas is a road in the possession of the then District Board (Local Authority). Aks Shajra-e-Kishtawar which is being placed by the respondents also clarify the said position that Khasra No.107 total measuring 07 kanals 06 marlas is a road and at the relevant place of dispute it was/is surrounded by Khasra No.112 and Khasra No.113; both the properties situated in the adjoining survey numbers are owned by the provincial government. Khasra No.112 is in possession of the Education Department total measuring 03 kanals 15 marlas where a government school is established.
3. Later, the Education Department of the provincial government had filed an application under Section 12(2) CPC challenging the said decree on the ground that the disputed property belong to the provincial government wherein a school is established. However, the unfortunate aspect of the case is that the District pleader was unable to pursue the said case and the application filed by the Education Department of the provincial government was dismissed by the trial court on 15.04.2017.
This judgment was assailed by District Education Officer through an appeal No.7/14 before the learned District Judge, Charsadda, however, the same too was dismissed on technical aspect as the counsel for the appellant probably has not filed a proper wakalat nama. No attention was given to this crucial aspect that the suit property is a public property ("Road") by either of the court. The said concurrent findings were challenged before this Court through W.P No.1602-P/2018, however, the said crucial aspect of the case that the decree was passed in favour of the decree holder/petitioners in respect of a public property; which is a road; also escaped the attention of this Court and on technical ground the said petition was dismissed on 07.02.2019.
4. Through this petition, the petitioners seek initiation of contempt of Court proceedings against the respondents and it is claimed that when the petitioners had started construction over the disputed property, the respondent Assistant Commissioner has stopped the said construction. The respondents were asked to file their para-wise comments. In the said comments it is mentioned that Khasra No.107 and 112 both are government property. On Khasra No.112 a government school is established whereas Khasra No.107 is a metal road which is in possession of District Board (Local Authority) since 1926. Though it appears from the jamabandi 2013-2014 that the names of the petitioners have also been inserted in column of ownership as well as column of possession against Khasra No.107 to the extent of 02 kanals 11 marlas, however, the said entries are not supported by any record except the decree of the court stated above; which only relates to 05 marlas.
5. The perusal of Aks Shajra-e-Kishtawar as stated above would show that at the particular juncture where the petitioners claim ownership of 05 marlas land is surrounded by Khasra Nos. 112 and 113. Thus, the factual position; as evident from a report which is available on file; that if the impugned judgment is executed, it would allow the petitioners to construct shops on side of the road which according to the record is 05 karam in width equal to 27.5 feet. One of the site plan annexed by the petitioners as an additional document with this petition would show that the disputed property is measuring as 121/2 foot in width and 114 foot in length, therefore, if he is allowed to construct building on the disputed property, it will reduce the width of the road from 27 feet to 15/6 feet. However, the Patwari Halqa alongwith the Assistant Commissioner has produced yet another record according to which the petitioners have also encroached upon Khasra No.112 which is a government owned school.
6. The aforesaid record would clearly suggest that the petitioners were able to obtain a decree at the back of provincial government in respect of the disputed property which is admittedly a public road. In my humble view, the decree obtained by the petitioners in obtained such fraudulent manner cannot be allowed to be executed at the cost of the public good. It is not the absolute rule that a decree which prima-facie is not capable of execution should still be executed when from the facts and circumstances of the case, itis obvious that if the said decree is allowed to be executed, it would cause serious prejudice to the public interest. Indeed, the law is settled that the supreme law of land is the public interest and in case of conflict between the public as well as private interest, the private interest has to yield before the public interest. The Apex Court in the case of "Fakir Abdullah & others Vs. Government of Sindh through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi & others (PLD 2001 SC 131)" has observed; "There is no cavil with the proposition that a Court executing a decree ordinarily is not supposed to travel beyond its terms as held in number of judgments pronounced by superior Courts, few of them have been referred by the learned counsel for the petitioners in his arguments but simultaneously the executing Court while exercising jurisdiction under section 47, C.P.C. can question the executability of a decree if it is satisfied that the decree is a nullity in the eye of law or it has been passed by a Court e having no jurisdiction or the execution of the decree would not infringe the legal rights of the decree-holder if refused to be executed or the decree has been passed in violation of any provision of law, say as in the instant case apparently petitioners obtained an ex parte decree in their favour without showing that what was their legal character to institute the suit in terms of section 42 of the Specific Relief Act and if the relief so claimed by them is not granted how he/they will be prejudiced or if the Court came to conclusion that by granting the relief to the decree-holder the functioning of Government administration has been interfered with according to section 56(d) of Specific Relief Act. In this behalf reference from few of the judgments relied upon by the petitioner's counsel may be made: (i) Cantonment Board v.
Kishan Lal AIR 1934 Allahabad 609, (ii) Alaat Hussain v. Mushtaq Ali AIR 1937 Allahabad 282, (iii)
Messrs Haji Ahmed & Co. v. Muhammad Siddique and others PLD 1965 (W.P.) Karachi 293, (iv)
Brig. (Retd.) Muhammad Aslam Khan v. The Azad Government of the State of Jammu and Kashmir through the Secretary, Forest Department, Muzaffarabad and another 1983 CLC (SC (AJ&K) 1204, and (v) Abbasia Cooperative Bank (now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC3."
Underline is for emphasize.
7. A similar view is also reflected from the law laid down by the Apex Court in the cases of "Habib Bank Limited Vs. Mst. Parveen Qasim Jan & others (2014 SCMR 322), Islamic Republic of Pakistan Vs. Muhammad Saeed (PLD 1961 SC 192) and Tauqeer Ahmad Qureshi Vs. Additional District Judge, Lahore & 02 others (PLD 2009 SC 760)."
8. Even otherwise the judgment passed by this Court in W.P No.1602-P/2018 has only dismissed the constitutional petition filed by the Education Department of the provincial government whereby its application under Section 12(2) CPC was dismissed on technical ground. Through the said judgment, neither the petitioners were given any right nor any directions were issued to the respondents. Therefore, this Court is not convinced that the respondents have made any violation of the judgment passed by this Court. Rather it appears that the District Administration has restrained the petitioners from construction on a public road in the best interest of the public.
9. In view of the above, this petition having no merit is accordingly dismissed