MUHAMMAD NAEEM ANWAR, J.-Through instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have questioned the validity and correctness of the order of the learned Additional District Judge, Swat at Matta dated 10.04.2023 whereby the civil revisions bearing No.45/6 of 2019 & 1/6 of 2021 filed by the respondents were allowed and the orders of the learned Executing Court (Civil Judge-II, Swat at Matta) dated 03.05.2013 & 07.05.2015 were set aside.
2. The brief background of the instant petition is that Abdul Wakil, the respondent No.1, has filed a civil suit bearing No.188/1 on 20.07.2007 seeking therein specific performance of agreement dated 19.04.2007 in respect of sale of the property measuring 5750 square feet from khasra No.2476 measuring 15-kanal and 07- marla of the revenue estate of Matta Kharerai for payment of the remaining sale consideration of Rs.39,45,000/- against the respondents No.2 & 3 (Shah Zamin and Muhammad Tayyeb) by alleging that out of total sale consideration amounting to Rs.39,95,000/-, he has paid Rs.50,000/- as earnest money to the defendants at the time of execution of sale deed dated 19.04.2007 and is also ready to pay the remaining sale consideration. He has sought the decree for specific performance of the agreement in terms of directing the respondents/ defendants to transfer the property in his name through attestation of a mutation and to hand over the possession thereof to him. His suit was resisted by the defendants (respondents No.2 & 3) through their written statement on different legal and factual objections. The learned trial Court, after recording of evidence and hearing of the parties, through its judgment and decree dated 23.12.2010 decreed the suit in favour of the plaintiff/ respondent No.1 against the respondents No.2 &
3. The decree was questioned by them through R.F.A No.36 of 2011 but same was dismissed by this Court, being meritless, vide judgment and decree dated 11.10.2011. Still feeing aggrieved, the defendants (respondents No.2 & 3) approached the apex court through Civil Petition No.1782 of 2011 but same was dismissed and leave to appeal was refused vide order dated 09.12.2011 by the Hon'ble Supreme Court of Pakistan. Following the judgment and decree in his favour, the respondent No.1 (decree holder) filed an execution petition seeking recovery of possession against the defendants/ respondents (judgment-debtors). During pending adjudication of the execution petition, the learned executing court through its order dated 03.05.2013 has directed the transfer of symbolic possession to the decree holder (respondent No.1) towards its satisfaction and subsequently, through order dated 07.05.2015, the learned executing court has filed the execution petition after its complete satisfaction. Both the orders were questioned by the respondents through separate petitions before the learned Additional District Judge, Swat at Matta, however, same were returned for its presentation before appropriate forum for lack of jurisdiction vide order dated 09.12.2014, where-against W.P No.308-M of 2015 was filed before this Court and this Court on 21.12.2016 set aside the order dated 09.12.2014 by remanding the matter to the learned Additional District Judge, Matta Swat for appropriate order. The order of this court was questioned by the respondents through Civil Appeals No.359, 360 & 361 of 2017. The Hon'ble Supreme Court on 11.11.2019, with the consent of the parties, disposed of the appeals in the following terms: "After hearing the learned counsel for the parties, with the intention to resolve the issue once for all, with the consent of the parties the matter is sent to the learned Appellate Court which will decide the matter on merits. If a party intends to raise any legal objection, the same shall be decided by the learned Appellate Court in accordance with law. However, the decision on legal objection, if any, shall be decided along with decision on merits of the controversy through a common judgment to avoid peace meal challenge. All these appeals are disposed of in the above terms."
After remand, the learned Additional District Judge, Swat at Matta decided petitions bearing No.45/6 and 01/6 through consolidated order dated 10.04.2023 by setting aside the orders of the learned Executing Court dated 03.05.2013 & 07.05.2015 and remitted the matter to the learned Executing Court, with direction to appoint a competent Bailiff who shall hand over the possession of the decreed property to the decree holder. This petition has been filed challenging the correctness and validity of the order of the learned revisional Court dated 10.04.2023.
3. Arguments of Mr. Abdul Halim Khan, Advocate representing the petitioners, Mian Hussain Ali, Advocate representing the respondent No.1 (decree holder) and Muhammad Halim Khan, Advocate representing rest of the respondents were heard, and with their valuable assistance, record annexed with the instant petition gone through.
4. The petitioners have filed C.M No.824-M/2023 for placing on record the copy of order dated 06.05.2023 of the learned Civil Judge-II, Matta, Swat in Execution Petition No.2/10 neem of 2012 while the respondent No.1/ decree holder has file C.M No.1017- M/2023 for placing on file the copy of order sheets of suit No.152/1 filed on 16.11.2011 decided on 10.12.2011, consisting upon 30 leaves, attested copy of the documents of C.M No.3/12(2) neem instituted on 18.12.2013 and decided on 20.04.2015, written reply, copy of order sheets, report of bailiff dated 08.05.2023, extract from Jumabandi for the year 2009-10 of khasra No.2476 of the revenue estate of Matta Kharerai. Both the parties have sought placing on file the requisite documents, as annexed with their respective applications, for just and appropriate decision of the instant writ petition. Not only the parties have conceded the respective applications of their opponents as correct but the contents of the same have also been verified through duly sworn affidavits. Moreover, the documents appended with the applications are copies from judicial record pertaining to the /is pending adjudication between the parties, therefore, both these applications are allowed and the documents appended therewith are hereby read as part and parcel of the instant petition.
5. For resolution of the controversy in hand, the agreement dated 19.04.2007 is reproduced as under: A look at the contents of the referred to above deed, which resulted into a decree in favour of respondent No.1, transpires that an area of 115 X 50 square feet was agreed to be transferred by the respondents No.2 & 3 (judgment debtors) in favour of the respondent No.1 (decree holder) for sale consideration of Rs.39,95,000/-, wherefrom Rs.50,000/- as earnest money was paid whereas the remaining sale consideration i.e., 39,45,000/-outstanding and was agreed to be paid on the date of attestation of mutation. Moreover, there was no reference about the specification of the area intended to be sold out of khasra No.2476 measuring 15-kanal and 07-marla of the revenue estate of Matta Kharerai. In his suit, the respondent No.1 has sought two prayers: (i) directions to the respondents No.2 & 3 to transfer the property through attestation of mutation; and (ii) to hand over the possession of the property to him. In Para No.4, it was averred with clear intention that the respondents No.2 & 3 (defendants) have refused to alienate the property in his favour through attestation of mutation alongwith handing over of possession. The decree for specific performance of agreement, through payment of the remaining sale consideration amounting to Rs.39,45,000/-, was passed in favour of respondent No.1 along with the relief for recovery of possession and this decree of the learned trial Court has been upheld from this Court through dismissal of the appeal of the respondents/ judgment debtors and then refusal of leave to appeal from the apex Court.
Two questions are requiring resolution through instant petition: (i) as to whether the actual/ symbolic/ emblematic possessionokt. he decree property shall be transferred to the respondent No.1/ decree holder? and (ii) whether the decree has been satisfied through transfer of symbolic possession? It appears from the revenue record i.e., extract from Jumabandi for the year 2009-10 that Shah Zamin s/o Umar Khan (respondent No.2) was the owner of 2585 shares out of 83581 while, Muhammad Tayyab s/o Muhammad Shoaib (respondent No.3) was the owner to the extent of 2584 shares and remaining shares i.e., 78412 were the proprietorship of rest of the owners. In compliance with the judgment and decree passed against the respondents No.2 & 3, a mutation No.4081 dated 12.12.2013 has been attested in favour of respondent No.1. It is reflected from the extract of Jumabandi that khasra No.2476 measuring 15-kanal 07-marla was the ownership of different persons including the respondents No.2 & 3 (judgment debtors), who have sold their respective shares in favour of the respondent No.1 (decree holder), with specification of the area in the revenue papers. There are four petitioners in the instant petition i.e., Sher Bahadar, Salim Javed, Hakim Khan and Abdul Hadi. Petitioner No.3, namely Hakim Khan is the vendee from Ismail sio Muhammad Rahim in the disputed property on the strength of mutation No.3547 dated 23.02.2012.
The said Ismail has been incorporated in the revenue papers on the strength of mutation No.3534 from Muhammad Sher s/o Saif-Ur-Rahman. Muhammad Sher has become the owner from Toti Khan s/o Alamat Khan vide mutation No.2480 dated 24.09.2005, whereby Muhammad Sher Khan, the vendor of Ismail from whom Hakim Khan is deriving title, has become the owner of "no shares.
Record also promulgates that mutation No.2065 was attested on 13.02.2004 in favour of Muhammad Rahim. Likewise, Abdul Hadi (petitioner No.4) is the owner in the disputed property on the strength of registered deed No.04 dated 08.01.2014 and mutation No.4234 dated 10.09.2014.
Petitioner No.2 is the owner in the disputed property through attestation of mutation No.3911 dated 23.04.2013 from Mst. Aqal Mina widow of Zur Talab Khan. Zur Talab Khan was the owner whose inheritance mutation was attested in favor of legal heirs on 22.11.2005 bearing No.2403, whereby Mst. Aqal Mina, the transferor of petitioner No.2, petitioner No.1 and others, has become the owner/ co-sharer in the property including the property bearing khasra No.2476. A cursory look at the above mutations manifests that all the petitioners are owners of their respective shares in the property. No doubt, that Shah Zamin and Muhammad Tayyeb (respondents No.2 & 3) were also owners, whose shares have been transferred in favour of the decree-holder namely Abdul Wakil, however, khasra No.2476 is their joint ownership, from respondents No.2 & 3, the property was transferred to respondent No.1, the petitioners of the instant petition were not the party to the suit of the respondent No.1. Thus, whether the specific portion of the property, based on the report of Bailiff of the Court dated 08.05.2023 regarding a portion of land, was sufficient to direct the executing agency to hand over an area measuring 5750 square feet (decreed property) out of property measuring 15-kanal and 07- marla to the decree holder?
6. Order XXI rule 35 (1) C.P.C envisages the mode of delivery of the property when the decree was passed from immovable property against a person who was the judgment debtor, the possession is transferred actually to the decree-holder towards its satisfaction and filing thereof, however, the situation, as in the instant petition, is dealt with under sub-rule 2 of rule 35 ibid, which prescribes the procedure to be followed in executing a decree directing delivery of the actual possession of immovable property when the decree is from joint possession thereof. In such an eventuality, the decree for delivery of possession of immovable property can either be executed by delivery of symbolic possession (formal or constructive) and in such a situation, the actual/ physical possession could only be handed over to the decree-holder through a regular suit for partition /separation of shares. It is not disputed that khasra No.2476 is the joint ownership. It is also not denied by the decree holder that he has become the owner of the shares from the property measuring 15- kanal and 07-marla out of khasra No.2476. The contention of learned counsel for the respondent/ decree holder that in view of the principle laid down by the apex Court in the case of "Mst. Karama and 02 others Vs. Ghula Murtaza and another" (1970 SCMR 253), the actual possession is required to be transferred to the decree holder, however, in referred to above case, the mater was not in respect of transfer of shares from the joint property and the question pertaining to actual or symbolic transfer of possession for execution of a decree. Similarly, his contention that in view of the dicta laid down by the apex court in the case of `Khanzada Ainuddin Khan through legal heirs and others Vs. Feroz Khan and others" (1992 SCMR 2175), in terms of interpretation of section 47 C.P.C, the decree holder was held entitled for transfer of physical possession of the property, but his this contention is also misconceived because the apex Court has held that the executing Court is bound to execute the decree and not to find fault with it on mere technicalities so as to deprive decree holder of the fruits of the decree, which is not the case in the instant matter. His submission based on the principle in the case of 'Mst. Bundi Begum Vs. Munish Khan and others" (PLD 2004 SC 154) too cannot be considered, whereby the matter was decided by the apex court, by holding that technicalities, unless insurmountable, should not come into the way of the administration of justice.
7. As against the decree holder, this Court in the case of `Gul Sarwar Khan and 08 others Vs. Muhammad Wali Khan and 02 others" (PLD 2012 Peshawar 139) has held that the respondent is therefore entitled to issuance of warrant of symbolic possession to the extent of 1/37 shares in joint khata, regarding which, the suit had been decreed and not a warrant of delivery of actual physical possession through partition of the land, which was not the job of the executing Court but rather that of the revenue hierarchy. The apex Court in the case of "Irshad Masih and others Vs. Emmanuel Masih and others" (2014 SCMR 1481) has held that the executing Court, under no circumstances, could go beyond the decree. The executing Court could not creatively interpret a decree which had attained finality before the Supreme Cout to nullify its effect. Reliance may also be placed on the case of 'Defence Housing Authority through Secretary Vs. District and Sessions Judge, Lahore and 07 others" (2023 MLD 339, Lahore), wherein it was held that the details of the plots in question not mentioned in the plaint/ decree, the executing court could not go behind/ beyond the decree but at the same time all ancillary questions arising out of the decree had to be decided by the Executing Court. Likewise, in the case of `Shabla and another vs. Mst.
Jehan Afroz Khilat and others" (2020 SCMR 352), it was ruled by the apex Court that co-sharer in an estate was deemed to be in possession of each inch till the land was partitioned according to the respective shares. Lastly, in the case of 'Abdul Razaq Vs. Abdul Ghaffar and others" (2020 SCMR 202), it was observed by the apex Court that the decree could not be passed against a person who was not a party in the /is before the court.
8. Insofar as the determination of joint possession and execution of the decree for possession other than the decree for recovery of possession through partition a century ago in the case of Watson and Co vs. Ramchund Dutt (1890) [5 Sar. 535= 18 Cal. 10], it was held that no co sharer, who has been in physical or actual possession of any part of the joint land, is liable to be ejected by any of the other co-sharers in the village except bymeans of a partition lawfully obtained in a separate proceeding. Every co-sharer has a right to the beneficial enjoyment of the joint land so long as he does not thereby disturb the actual physical possession held by another co-sharer from before; but where another co-sharer is in such possession, he can only get symbolical possession of the nature referred to in 0. XXI, Rule 35 of the Code of Civil Procedure. In the Case of The Allahabad Bank Ltd. Vs. Subodh Gopal Bose (AIR 1963 Calcutta 209) it was observed that the decree for joint possession may be executed only in the manner provided for by Order XXI Rule 35(2) C.P.C. In execution of such a decree the plaintiff will be entitled to get symbolic possession only and the defendant's khas possession will not be disturbed. In the case of Bishesar Singh vs. Hanuman Singh, (AIR 1922 Allahabad 314) it was ruled that khasra for 1324, which the Trial Court accepted, however, proves that the parties had been in actual cultivatory possession, and, that being so, we are of opinion that the defendant had no right to oust him, and the plaintiff is entitled to a decree for Joint possession without pre-judice to the rights of the other co-sharers of the village. Reliance may also be placed on the cases of Hasimatunnisao BeMum vs. Vithal Rao Ganj'aji and another (AIR 1979 Andhra Pradesh 273, Manzoor Ahmad and another vs. Muhammad Sabi and others (2010 CLC 789), Akhtar Abbass vs, Muhammad Anwar and others (2013 YLR 1487), Syed Munawar Hussain Shah vs. Yar Muhammad Khan (2003 CLC 1724) and Gui Sarwar Khan and 8 others vs. Muhammad Wali Khan and 2 others (PLD 2012 Peshawar 139).
9. At the tail end of his submissions, learned counsel for the respondent/ decree holder contended that it would be unjust if the decree holder is directed to seek his possession through partition. No doubt, the respondent No.1/ decree holder has filed a suit against the respondents No.2 & 3 (judgment debtors) but admittedly it was a decree for specific performance of agreement and not a decree for recovery of possession of the property through partition and the factum of the transfer of actual possession to the extent of the property which was decreed in his favour, could only be decided through a suit for recovery of possession through partition, by arraying therein all the joint owners in the property for determination of rights of each and every co-owner and to protect the respective interest of all of them including the decree holder.
10. Viewing the considerations of the learned counsel for the parties, materials available on record, joint status of the parties in the property and the mode of determination of possession from joint owners, I am of the considered view that the learned Revisional Court has decided the fate of the execution in wrong perspective, because neither the actual possession could be transferred to the decree holder nor the petitioners could be forced to hand over the vacant possession of the property and that too on the whims and wishes of the respondent/ decree holder and on specifying a place from joint immovable property, therefore, the impugned consolidated order of the learned revisional Court dated 10.04.2023 cannot sustain. Same was not in accordance with order XXI rule 35 (1) C.P.C. The instant petition succeeds, consequently the impugned order dated 10.04.2023 is hereby set aside and that of the learned Executing Court is restored. No order as to cost.