S. M. ATTIQUE SHAH, J. By way of this common judgment, this Court intends to decide this and the connected Writ Petition No.4971-P/2022 titled Haji Aziz-ur-Rahman vs. Fazal Wadood & others', as common questions of law and facts are involved in both the petition.
2. Heard. Record perused.
3. As the record unfolds, it was the petitioner, who brought two separate pre-emption suits against the respondents way back in the year 2006 in respect of two different properties, which were decreed, after recording pro and; contra evidence, in his favour by the learned Trial Court through separate judgments and; decrees of even date i.e. 11.07.2009, against which, the respondents filed appeals, which were allowed by the learned Appeal Court vide judgments and; decrees of even date i.e. 16.11.2009 and; consequently, both the suits of the petitioner were dismissed. Being discontented, the petitioner preferred two revision petitions, which were allowed by this Court through separate judgments and; decrees dated 17.02.2021 and; consequently, judgments and; decrees of the learned Appeal Court were set-aside and; in turn, the judgments and; decrees of the learned Trial Court were restored, whereby, both the pre-emption suits of the petitioner were decreed against the respondents. Subsequently, the petitioner filed execution petitions for physical possession of the suit properties before the learned executing Court, which were resisted by the respondents through filing objection petitions on the ground that decretal properties being joint one, as such, the physical possession of the same cannot be handed over to the petitioner. The learned executing Court while deciding the objection petitions, issued warrant of symbolic possession of the decretal properties in terms of Order-XXI Rule 35(2) CPC vide orders dated 12.04.2022. Being aggrieved, petitioner challenged the said orders in revision petition before the learned revisional court, which was dismissed vide impugned judgment dated 29.09.2022.
4. Moot question for determination before this court is whether the petitioner / pre-emptor is entitled to get physical possession of the property in question in terms of Order XX Rule 14 CPC or symbolic possession under the provision of Order XXI Rule 35(2) CPC. Before discussing the merits of the case, it is more apt to reproduce Order XX Rule 14 CPC, which provides as follows: - "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, 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.
(2)...........
(a) ..........
(b)...........
5. The ibid provision postulates a specific procedure for decrees in pre-emption suits, which has provided for payment of the purchase money if the same has not been paid in court and delivery of possession of the preempted property to the decree holder. The court while passing a decree in favour of the plaintiff would specify a day on or before which the purchase money shall be paid into the court. Upon such payment, the defendant shall deliver the possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, however, if the plaintiff failed to pay the purchase money and the costs, if any, his suit shall be dismissed with costs.
6. Order XXI Rule 35 CPC deals with decree for immovable property, which is reproduced below for ready reference: - Decree for immovable property. -
(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immoveable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode at some convenient place the substance of the decree.
(3) ..............................................
7. The ibid provision of law has provided mode and manner for execution of decrees for immovable properties. When a decree for immoveable property is passed in favour of the plaintiff, he will be entitled for delivery of possession of such property in terms of Rule 35 (1) of Order XXI CPC. However, in the matter of decrees for joint immoveable property, the plaintiff would be entitled for delivery of symbolic possession thereof in terms of Rule 35 (2) of Order XXI CPC.
8. The proposition of law involved in the instant cases has been elaborately discussed by the Superior Courts in various judgments, before and after partition. In case titled Mahabir Gope Vs. Harbans Narain[1], the full Bench of the august Supreme Court while discussing the proposition arrived to the conclusion that:-
(i) The title of a pre-emptor in respect of the pre-empted property accrues from the date on which payment of the purchase money and costs (if an) is made by him in accordance with the provisions of Order XX Rule 14 of the Code of Civil Procedure;
(ii) On such title accruing to him the pre-emptor is entitled to delivery of possession of the property in question from the vendee including any person who has happened to possess the property through the vendees after the original sale;
(iii) A vendee of pre emptible property is entitled to deal with it in the same manner as a full owner, but any demise of the property or of any interest therein created by the vendee does not to effect the rights of the pre-emptors;
(iv) A tenant inducted into pre-emptible property by a vendee after its sale in his favour does not become the tenant of the pre-emptor after title to the property passes to the latter by devolution of interest as the vendee is not the predecessor in interest of the pre-emptor; and
(v) The tenant inducted by a vendee of pre emptible property does not become tenant of the pre emptor by operation of law so as to claim the protection of section 9 of the Punjab Security of Land Tenures Act (10 of 1953) and is, therefore, liable to be dispossession in execution of the decree for possession against the vendee.
9. The august Apex Court in Muhammad Ali's case[2] has held that the Civil Court is required to pass a decree in a pre-emption case as per provisions of Order XX Rule 14 of Civil Procedure Code and; the said decree would be only for delivery of possession of land sold and pre-empted. In Muhammad Inayat's case[3], Hon'ble Lahore High Court had held that when physical possession of specific Khasra numbers comprising a joint Khata was given to the vendee, then, upon the decree passed in a preemption suit, the pre-emptor would be entitled to get physical possession of the pre-empted property from the possession of the defendant/judgment-debtor. So, it is settled that pre-emption decrees must be formulated and; executed as per the specific provision of Order XX Rule 14 CPC.
10. Here, in the instant case, the title of the petitioner-decree holder in respect of the pre-empted properties accrued from the date on which payment of the purchase and; costs (if any) was made by him in accordance with the terms of the decrees passed in his favour under the provisions of Order XX Rule 14 CPC and; on the basis of such title, accruing to him, he is entitled to the delivery of physical possession of the properties in question from the defendants/judgment-debtors including any other person, who happened to possess and maintain such properties on their behalf.
11. When examined from this perspective, this court has no hesitation in holding that both the learned courts below have erred in law while observing that the decrees in the present case were for joint possession and; as such, no physical possession of the land could be delivered to the petitioner in execution, rather, only a symbolic possession was given to the petitioner in terms of Order XXI Rule 35 (2) CPC. Such findings are contrary to the record of the suits.
According to the said record, the suits of the petitioner were decreed for the delivery of possession of the pre-empted properties. The available record also reflects that respondent Fazal Wadood when examined as DW-2, admitted the delivery of possession of the properties to the respondents, such being the case, the instant matter is fully covered under the provisions of Order XX Rule 14.
Besides, record also reflects that since the date of alienation and possession of the properties in question in favour of the respondents/JDs, they are enjoying the usufructs of the same and now, they are reluctant to deliver physical possession of the properties in question to the petitioner on the ground that as the properties in question are joint one, therefore, the petitioner is only entitled to their symbolic possession in terms of Order XXI Rule 35 (2) CPC. This court, given the peculiar facts and circumstances of the case, does not agree with the proposition, so agitated at the bar by the respondents. Certainly, the question of symbolic possession would arise only when the suit is decreed for possession in terms of Order XX1 Rule 32(2) which is certainly not the case here as the suits were for possession through pre-emption and the same had rightly been decreed by the learned trial court in terms of Order XX Rule 14 CPC and, the same requires to be executed in its letter and spirit, as it is settled that the executing court cannot go beyond the decree and must execute it in its letter and spirit. In view thereof, the provision of Order XXI Rule 35 (2) of CPC is not attracted to the peculiar facts and circumstances of the instant cases.
12. Such legal and factual aspects of the case have not been properly appreciated by both the learned courts below while handing down the impugned findings and; thereby erred in law and; travelled beyond their jurisdiction/domain by modifying the actual decree, granted in favour of the petitioner and; as such, the findings of both the Courts below are not sustainable in the eye of law, in the attending circumstances of the case.
13. Consequently, this Court allows both these writ petitions and; while setting-aside the impugned findings of both the learned Courts below, accepts the applications of the petitioner-decree holder qua seeking actual physical possession of the decretal properties and; in turn, directs the learned Executing Court to execute the decrees in their letter and; spirit by issuing separate warrants of physical possession of the decretal properties in favour of the petitioner without any further delay being old matters of the year 2006.
1. A.I.R. 1932 S.C. 205