This civil revision arises from the judgment and decree of the learned District Judge, Dera Ismail Khan dated 8-6-1987 confirming the judgment and the decree of Senior Civil Judge, D.I. Khan dated 29-10-1986 whereby suit for possession by partition of 1/2 share of a house against the respondent was dismissed.
2. The facts leading to this revision petition in brief are that Mst. Fareeda Khanum, petitioner herein, filed a suit for specific performance of agreement of sale of house against her father Mohammad Bakhsh. The defendant therein, prima facie, contested the suit but after replication was put in, the defendant absented himself and in consequence an ex parte decree was passed in favour of the petitioner herein. She took out execution proceedings and got 'symbolic possession' of her decreed share in the said house. The eastern half portion of the suit house had also been transferred by Mohammad Bakhsh, father of the petitioner, to Raza Mohammad, respondent herein: On 21-2-1984, the petitioner brought a suit against the respondent for possession by partition of the western half portion of the suit house. A written statement was filed by the respondent contesting the claim of the plaintiff giving rise to the following issues:- (i)Whether the plaintiff has got a cause of action?
(ii)Whether the plaintiff is owner-in-possession of the suit house?
(iii)Whether the suit has been improperly valued for the purposes of court-- fee and jurisdiction?
(iv)Whether the suit house has been already partitioned, if so, its effect?
(v)Whether the plaintiff is entitled to the decree as prayed for?
(vi)Relief.
3. The learned Senior Civil Judge, D.I.Khan, who was seized of the case, held on issue No.3 that the suit was properly valued. He took up issues Nos.2, 4 and 5 together and held that the ex parte decree on the basis of which the petitioner founded her claim to the 1/2 share in the suit house having not been executed in accordance with law, no proprietary rights vested in the petitioner. It was further held that upon her own showing she had got the possession of her share in the suit house in execution proceedings and that, therefore, she was not entitled to the relief claimed by her. The petitioner was accordingly held to have got no cause of action. In consequence, the petitioner's suit was dismissed. Feeling aggrieved, the petitioner herein filed an appeal which was also dismissed by the learned District Judge, D.I.Khan on 8-6-1987. Hence this revision.
4. Before me, the learned counsel for the petitioner has challenged the findings of the Courts below on issues Nos.2, 4 and 5. The learned counsel submitted that the respondent even in his written statement had admitted the petitioner's 1/2 share and that it stood already partitioned wherein only one 'Khola' stands constructed and that, therefore, the petitioner's suit for partition should have been decreed.
5. As against this, S. Mushtaq Ali Shah, the learned counsel for the respondent strenuously argued that there was no cavil with this proposition that the respondent had admitted the factum of partition of the suit house, therefore, the two Courts below have rightly non-suited the petitioner.
Syed Mushtaq Ali Shah also contended that the ex parte decree for specific performance of the agreement of sale declared her right to have transfer of the property in her favour but the title to the property would remain in the judgment --debtor (the petitioner's father Muhammad Bakhsh) so long as the transfer deed is not executed. In support of this proposition, he placed reliance on Abdul Majid v. Nizam Din PLD 1959 (W.P.) Lahore 273. I am in respectful agreement with the proposition settled in this precedent and would reiterate that a decree for specific performance only declares the right of the decree-holder to have a transfer of the property covered by the decree executed in her favour by the judgment-debtor or by the Court, and so long as the transfer decd is not executed, the title in the property remains vested m the judgment-debtor.
6.This being so, the learned two Courts below were justified to have non---suited the petitioner for lack of cause of action on this score. The findings of the trial Court that the petitioner is not the owner of the suit house as alleged by her in the plaint and she has already taken the possession under the ex parte decree in her favour were, if not unwarranted, certainly superficial. In view of the finding that she could have got the decree of specific performance completed by getting a deed executed the matter should have been left there as to enable her to get any ` relief which she deemed proper. The record would show that she had got the I symbolic possession of her share of the house in suit. She may, therefore, get ; sale-deed executed in her favour so that the title of the share of the house stands duly transferred in her favour.
7. With these observations, I would dismiss this petition in revision but would leave the parties to bear their own costs.