MUHAMMAD NAEEM AIVWAR, J.- This civil revision filed under section 115 of CPC (1908) calls in question the judgment/order and decree of the learned Additional District Judge-IX, Peshawar dated 20.12.20214 whereby appeal of the petitioners against the judgment and decree of the learned Civil Judge-XIII, Peshawar dated 16.11.2012, accepting the application of plaintiffs (respondents No. 1 to 3) and converting the preliminary decree into final decree, was dismissed.
2. Aziz Khan, predecessor-in-interest of respondent No.1 to 3, filed suit No. 462/1 on 19.10.2001 seeking recovery of possession through partition in respect of 21-Marla property out of 42-Marla in the constructed Hujra situated at Kandi Musa Khel, Sufaid Dheri, District Peshawar, on the strength of deed No.8 registered in his favor on 29.01.1913. The suit was resisted by present petitioners (defendants No.2 85 3) along with defendant No.1 Noor Muhammad on different legal and factual objections. They also sought dismissal of the suit because of decisions in suit No. 542/1 decided on 18.01.1917 and suit No. 37/8 decided on 04.08.1913. The remaining defendants, as they were, also contested the suit through their separate written statements. The learned trial Court framed 15 issues from divergent pleadings of the parties who recorded their evidence in support of their respective contentions. Considering the evidence, preliminary decree was passed by learned Civil Judge-VII, Peshawar on 19.11.2002 in favour of respondents No.1 to 3/plaintiffs (hereinafter called decree-holders). The validity of the preliminary decree was not challenged by any of the defendants, including the present petitioners. An application was moved by the decree-holders on 18.07.2005 for conversion of the preliminary decree into final decree. After issuance of process in the application, the learned trial Court appointed a local commission to proceed to the spot and submit his report after conducting the proceedings, which was submitted accordingly. The report was objected to by the decree-holders and the present petitioners. In view of the objections of the parties regarding the report to the Local Commission, Malik Iftikhar Advocate, the local commission, was examined as CW-2 on 14.05.2010. He was cross-examined by present petitioners (defendants No. 2 85 3), however, the decree-holders opted not to cross examine him despite the opportunity given to them. The learned executing Court, after hearing the parties, turned down the objections on 16.11.2012, confirmed the report of local commission and preliminary decree was converted into final decree. The order was assailed by the present petitioners; however, their appeal was dismissed by learned Additional District Judge-IX, Peshawar on 20.12.2014. Being aggrieved, the petitioners assailed the orders and decree of both the learned Courts below through instant petition wherein pre-admission notice was issued to respondents on 13.02.2015 and the proceedings before the learned executing Court were suspended.
3. Learned counsel for the petitioners contended that the report of the local commission and the impugned orders have been questioned by the petitioners on two grounds that (i) the report of local commission was questioned by both the parties ipetitioners & decree holders) which could not be relied for conversion of preliminary decree into final decree, and (ii) The property which was measured by the local commission on the spot for submission of report is not the decreed property.
4. Learned counsel representing the decree holders supported the impugned judgments/orders and in addition, he contended that since the preliminary decree was not challenged by the present petitioners, therefore, they cannot question the fate of the preliminary decree granted in favour of the decree-holders.
5. Arguments heard, and record perused.
6. Insofar as the discretion of the disputed property is concerned, suffice it io say that the plaintiffs/ decree holders have given the description of property in the plaint with specific reference to the boundaries of the house reads as: The aforesaid description of the decreed house could be questioned at the time of pending adjudication of the suit, though they have taken certain preliminary objection about maintainability of the suit, but it was decided that the predecessor in interest of the plaintiff was the owner of decreed property to the extent of his shares. The petitioners could not prove their respective contentions as such preliminary decree was granted on 19.11.2002. Admittedly, the judgement & decree of the learned trial Court has not been assailed by the petitioner thus, those findings regarding the entitlement of decree holder in the decreed property have become final. It is well settled law that the judgement 85 order of the Court if not assailed attains finality. This view is fortified from the dicta laid down by the apex Court in the case of "Muzaffar Khan vs. Sanchi Khan and another" (2007 SCMR 181). Reliance may also be placed on the case law as reported in case of "Ghulam Rasool through L.Rs and others Vs. Muhammad Hussain and others" (PLD 2011 SC 119), Muhammad Asiam and 2 others v. Sved Muhammad Azeem Shah (1996 SCMR 1862) and Kanwal Nain v. Fateh Khan (PLD 1983 SC 53), Gui Rehman Khan vs. Shirian Khan" (2004 SCMR 592), Khurshid Soap and Chemical Industries (Pvt) Ltd Vs. Federation of Pakistan (PLD 2020 SC 641).
7. Moreover, the matters relate to the entitlement of the decree holders through preliminary decree could not be questioned at the time of final decree. It is an admitted fact that preliminary decree granted in favor of the decree-holders by the learned trial Court on 19.11.2002 has not be challenged by the present petitioners. the petitioners are precluded from questioning the validity 85 correctness of final decree because they have not assailed those findings at the time of preliminary decree in view of the provision of section 97 of the Code (1908), which reads as under:
97. Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
The basic object and philosophy of Section 97 C.P.C. is that when a preliminary decree is passed but no appeal is preferred, the correctness, validity and legality thereof cannot be questioned through appeal when the preliminary decree is converted into final decree. Failure on the part of a party to challenge the preliminary decree within the period of limitation provided under the law precludes the party from challenging the same in appeal against the final decree. Reliance may be placed on "Messrs. Conforce Limited Vs. Messrs Rafique Industries Ltd. and others" (PLD 1989 S.C 136). it was held that "Section 97 of CPC debars a party from questioning the correctness of preliminary decree in an appeal preferred from final decree. Therefore, if a party fails to challenge preliminary decree within the prescribed period of limitation, the party would be precluded from challenging the same in an appeal against final decree". The Privy council in Ahmed Musaji Saleji vs. Hashim Ebrahim Saleji (AIR 1915 OC 116) has held that failure to appeal against preliminary decree would operate as a bar to raise any objection to it in an appeal filed against final decree. It is also an admitted fact that the petitioners were not only party, but they have contested the suit but once the decree (preliminary) was passed they have not challenged it.
8. lastly, the objection that the property which was inspected at the spot by the learned Local Commission is not the disputed one, this objection is mainly based on the suggestion which was put to the local commission during his cross-examination by the learned counsel for petitioners, to which he replied that: Not only the local commission has denied the suggestion of the petitioners, but the petitioners are estopped from questioning the decreed property at the spot. During the pendency of the suit patwari halqa proceeded to the spot, prepared the sketch of the Hujra and placed it on the record and this was placed on record by the petitioners during cross examining Aziz Khan (plaintiff).
Relevant portion of the cross examination is reproduced as under: Petitioner No.2 entered the witness box as Dw-1 and deposed in his cross examination that: He in his cross examination admitted that: In view of the statement of Dw-1, cross examination of Pw, neither the petitioners could question the boundaries of the decreed property, nor the location of the property could be disputed. Moreover, the objection that Ahmad Zia was not the party to the suit is also or no help to the petitioners because the decree holder now his legal heirs were held entitled for 7-Marlas property and the local commission has opined that the property is partitionable, he also devised the mode of partition to the extent of shares of the decree holder with a sketch prepared at the spot.
9. Another ridiculous objection of the petitioners was that the report was objected to by the plaintiff (decree holder) and in that scenario it could neither be confirmed nor relied upon. Filing of objection and cross-examining local commission are two different things. No doubt that the decree holder filed objections to the report. However, when the local commission appeared as CW, he was cross examined by the petitioners whereas, the decree holder opted not to cross examine despite opportunity given. The decree holder could not be forced to cross examine the local commission. A party may submit the objection, but he may or may not cross examine the local commission. Non-cross examining the local commission would not render the report nullity in the eye of law nor would lessen the significance of the report. No doubt the right of cross-examination is an integral part of the principles of natural justice but when the opportunity to cross examination was afforded and the party did not cross examine the witness the legal requirement of the rule of evidence complied with and the statement of such witness shall be deemed to be permissible under the law. /O. Turning to the objection of the petitioners that they had not been served for their participation in the proceedings of the local commission at the spot. It is in Para No.2 of the report of local commission Ex. CW-2/1 it was reported that on 24th November 2007 the local commission had directed the parties for their presence on the spot but since they were not present at the spot on the mentioned date, therefore, the proceedings were postponed for 25th November 2007 (Sunday).
It would be appropriate to have a look on the TORs which are reproduced as under: i) Whether suit property is partitionable or not, if not what is the reason? If yes, what will be the mode of partition? ii) If the suit property is not partitionable, then what will be the market value of the suit property? iii) Statement of the parties. iv) Site plan.
The term of reference at Serial No. (ii) was subject to the conclusion drawn by the local commission at the spot about direction at Serial No. (i). The local commission proceeded to the spot, he measured the property, prepared the sketch without scale and determined the shares of the parties considering the decree granted in favor of the decree-holders i.e., 1 / 3rd share out of 21- Marla. These were the findings of the learned trial Court and were mentioned in the decree sheet drawn by the Court of first instance. 21-Marla property was found in possession of Zafar Khan (petitioner No.2) and one Ahmad Zia from who was present at the spot at the time of proceedings conducted by local commission. Both i.e., Zafar Khan and Ahmad Zia were in possession of 111/2 Marla each and it has been observed by the local commission that the property was partitionable.
He prepared the sketch and devised the mode for partition by 31/2 Marla from the property which was found in possession of petitioner/defendant Zafar Khan and 31/2 Marla from the property which was found in possession of Ahmad Zia whose statement was also recorded. It is pertinent to mention that till now neither Ahmad Zia ever appeared before the executing Court, nor he has questioned the validity of the report of local commission nor the final decree before any forum.
Though the local commission was asked about the presence of petitioner No.2 about whom the local commission replied that he was absconder in a criminal case however, neither any question about petitioner No.1 was put to local commission nor any suggestion was brought on record. The proceedings conducted at the spot, if seen in juxtaposition with the sketch and the findings of the local commission, would repeal the contention of the present petitioners. During hearing of the instant petition, one Iqbal son of Zafar Khan (petitioner No.2) was before the Court who stated that the objectors/petitioners are not in possession of the property at the spot and likewise, it is reflected from the report of local commission and findings of the Court in the order thereon that the constructed property at the spot was in delipidated condition and this fact was also endorsed by Iqbal son of petitioner No.2 namely Zafar Khan. It is high time to observe that the decree was granted in the year 2002, but the decree-holders have been still seeking and waiting for the fruits of the decree for the last 22 years. Such a conduct of the party on hand creating hinderances for the decree holder to keep themselves away from the decree holder for satisfaction of their inner conscious and such practice is resulting in backlog of the cases. It is alarming that preliminary decree was passed in 2022 which was converted into final decree in 2014 but still the decree holders could not get the actual possession of the decreed property which has been delayed for baseless and unwarranted objections of the petitioners. All the objections taken by the petitioners are frivolous and vexatious which requires to be dealt with in consonance with the procedural law as held by the Supreme Court in the case of Javed Hameed and others vs. Aman Ullah and others (2024 SCMR 89), Government of Khyber Pakhtunkhwa through Secretary, Elementary and Secondary Education Department, Peshawar and others vs Amiad Ur Rahman and others (2024 SCMR 424), Khalid Pervaiz vs. Samina and others (2024 SCMR 142), and Akber-Ud-Din vs. Headmaster Government High School Reshun and others (2023 SCMR 1133).
11. In light of the above discussion, there is no substance in the instant petition which is hereby dismissed with cost of Rs.100,000/- (one hundred thousand) recoverable from the present petitioners by the decree-holders before the learned executing Court.