1. ' This second appeal is a post-Partition sprout of a civil litigation commenced in pre-Partition days, upon sale of agricultural land measuring 161 Kanals, 9 Marlas made by Machhia on 10-11-1939, in favour of Hassan Din, father of Waryam, Adil, Fazal and grandfather of Jehangir. Anwar and Muhammad, two sons of the alienor, challenged the sale by their father in a usual suit under custom, which was a frequent phenomenon in those days, and, for some time after Partition also.
2. On 6-12-1946, the trial Court decreed the suit in favour of the then two plaintiffs. Successors-in- interest of Hassan Din challenged the decree in appeal before learned District Judge, Sahiwal. In the Appellate Court, parties concluded a compromise between them. Consequently the appeal was dealt with and disposed of in terms of compromise, and, on 25-11-1947, the decree passed by the trial Court adjudging the sale void qua the reversionary rights of the plaintiffs was modified on the lines indicated below. The order of the Appellate Court recording the compromise reads:- "The parties have effected a compromise. I accept the compromise and modify the decree of the trial Court in so far as to direct that Rs,4,000 will be alienee's charge on the suit land. The plaintiffs or other reversioners of the alienor will be entitled to take possession of the suit and after ter Machhia's death on payment 'of charge of Rs,4,000 mentioned above. Parties shall bear their own costs."
3. ' The decree followed the terms of the above order.
4. ' Machhia died on 27-9-1972. His son Muhammad predeceased him leaving behind him surviving two daughters, Mst. Fatima and Mst. Sattan and a widow Mst. Fateh Bibi. Later widow also died.
5. ' On 25-4-1973, Anwar petitioner filed a petition for execution of the decree passed by the trial Court on 6-12-1946 as modified in appeal, on compromise on 25-11-1947 for gaining actual possession of the land sold by his father upon. Payment/deposit of the charge-amount, in the sum of Rs,4,000.
6. Upon receipt of the execution petition, and, its registration the Execution Court directed for a notice to the respondents/judgment-debtors. They filed a reply, and, objected to the executability of the compromise decree passed in appeal on 25-11-1947. It was stated that "Anwar petitioner is not entitled to claim possession of the suit land through execution proceedings. He is legally required to file a separate suit for his entitlement to take possession of the land after Machhia's death on payment of charge of Rs,4,000." Other objections raised were that Anwar son of Machhia alone was not entitled to take possession of the whole of the land, and, surviving heirs of Muhammad, the predeceased son of Machhia, were a necessary party too and in their absence, execution was defectively instituted. In replication, Anwar decree-holder reiterated his stand. On 15-3-1974, Execution Court framed following issues for determination:-
(1) Whether application for execution was incompetent?
(2) Whether Anwar Khan petitioner alone is entitled to the execution of the decree?
7. (3)Whether heirs of Muhammad son of Machhia are not necessary party? If so, what is the effect of not joining them in the case?
(4) Whether the execution petition is defective for reasons given in para.4 of the reply?
8. ' Parties gave oral evidence, and, produced an extract from the death-register showing Machhia to have died on 27-9-1972, Ext.P.1, decree-sheet prepared in appeal Ext.P.2, order recording compromise in appeal Ext.P.3, Register Haqdaran Zamin for the year 1968-69 Ext.P.4. Upon review of this record, learned Senior Civil Judge, Sahiwal, held it to be an executable decree for possession to the extent of the share of Anwar, and, issued warrant for possession for 1/2 of the land in question.
9. Both the parties did not accept the decision of the Execution Court. Anwar laid claim to the whole of the land, and, respondents/successors-in-interest of the alienee, for dismissal of the execution petition in toto. Lower Appellate Court heard the appeals together, and, by a common judgment passed in them, on 1-3-1980, dismissed the appeal (Civil Appeal No,93 of 1977) filed by Anwar, and, accepted that of Adil etc. (Civil Appeal No,129 of 1976) by dismissing the execution petition holding that the compromise decree was not a "possessory decree capable of execution, without a proper suit for possession of the land filed on its basis. Against this order of the lower Appellate Court, a further appeal was filed in this Court. It was admitted on 15-3-1980.
10. ' Mr. Hassan Ahmad Khan Kanwar, Advocate, learned counsel for the petitioner, contended that : (i) decree for possession of the land could be based on compromise in the appeal arising from a suit filed under custom to challenge the alienation of ancestral land for want of legal necessity and consideration, and, there was no bar for the Court to make it, if parties agreed; (ii) that the respondents were bound by the terms of the compromise decree to deliver possession in execution upon receiving the amount of charge; (iii) that compromise decree enured for benefit of a surviving near reversioner and female heirs of Muhammad were not entitled to avail of it; (iv) in case, they were found entitled to a share in the land, the Court hearing the appeal could allow them relief. In support of his contentions, learned counsel heavily relied upon Mst. Fatima Bibi v.
11. Muhammad PLD 1950 Lah. 75; Mst. Niamat Bibi v. Nur Muhammad and others PLD 1954 Lah. 671; East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 and Malik Muhammad Hayat Khan v.
12. Subedar Yar Muhammad Khan PLD 1966 SC 612. In course of hearing of the revision petition, learned counsel, when confronted with the impact of supervening legislation in Punjab Ordinance XIII of 1983, submitted that it did not materially affect the fate of the case because it was a transaction past and closed covered by Proviso to section 2-A of the aforesaid Ordinance.
13. ' Mr. Hakam Qureshi, learned counsel for respondents, supported the impugned judgment for the reasons given in it. Additionally, it was submitted that the limits on the powers of the Court under section 115, Civil P.C. Did not permit for an interference. Also argued that in a suit for declaration filed under custom, decree for possession, in the lifetime of the alienor, could not have been passed. Lastly, it was argued that section 2-A of the Punjab Ordinance XIII of 1983 gave a final death blow to the compromise decree "directing delivery of possession" on payment of the amount of charge.
14. Upon hearing the learned counsel at length, examination of the records, the nature of the suit filed under custom and and tenor of decree passed in appeal arising from it, in my opinion, without a suit having been filed for possession on the strength of a compromise decree passed in partial modification of the decree of the trial Court adjudging the sale invalid qua the reversionary rights of the plaintiffs in the suit, execution could not take place and possession obtained. Compromise decree was not a decree for possession, capable of execution straightaway upon death of the alienor. The facts in the case of Mst. Fatima Bibi supra were not parallel. In that case, the death of the female alienor had taken place in course of appeal, which made the remedy for possession available at the time of compromise between the parties. In that context, a decree for possession passed was held executable. Other cases cited by Mr. Kanwar had no similarity of the facts and the ratio in them did not apply. Modified decree passed on compromise provided that the plaintiffs or other reversioners of the alienor will be entitled to take possession after Machhia's death. Plain reading of the decree showed that it gave right to the plaintiffs or other unspecified reversioners of the alienor to take possession of the suit land after the material event i.e, the death of the alienor. It did not seem to dispense with the legal remedy of a civil suit required to be filed under law for obtaining the possession of the suit land on the basis of the decree declaring the sale null and void qua the reversionary rights. Therefore, learned Judge below was right in construing the compromise decree in that manner. Be that as it may, even if the compromise decree was treated as a decree directing possession of the suit land on the death of Machhia, Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance 1983 (Ordinance XIII of 1983) sounded a deathknell to its further executability, and silenced it completely for ever.
15. Section 2-A by a fiction of law provided that a male heir, who had acquired any agricultural land under custom from the person, who, at the time of relevant acquisition, was a Muslim shall be deemed to have become its absolute owner as if such land had devolved upon him under Muslim Personal Law (Shariat) Act. Restrictions imposed by custom on the power of alienation of a male owner are foreign to Islamic Law. Under that system of law, a person, who is absolute owner of his property, and excepting a certain mode of transfer and extent of transferable property in specified cases and circumstances, there are no restrictions on his power of dealing with his owned property. By new legislation in Ordinance XIII of 1983, restrictions and restraints on power of alienation imposed by customary law were completely done away with and any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage to call in question such an alienation or directing delivery of possession of agricultural land on such basis, was declared void, inexecutable and of no legal effect to the extent it was contrary to Muslim Personal Law (Shariat) Application Act. All suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of the land under such decree were directed to abate forthwith except for the transactions past and closed, where possession of the land had already been delivered under such decree. Obviously, present was not a case of transactions past and closed. Upon death of Machhia, Anwar had applied to the Court to execute the compromise decree for obtaining possession of the land upon payment of the charge money imposed upon it. Section 2-A of the afore noticed law not only struck down the decree of the Court as of no legal effect being contrary to Muslim Personal Law, but also gave instantaneous burial to the execution proceedings seeking possession of the land under such a decree. There was no doubt that the Legislature was competent to nullify the effect of the Court-decrees. The contention that the possession had been, taken by the petitioner under some unknown arrangement, was not borne out from the record. Contents of the execution petition and the prayer made in it clearly negated the truth of that contention. I have no doubt to say that possession under the decree was not transferred, when Ordinance XIII of 1983 came in force. Therefore, be it a declaratory decree under custom required to be followed by a suit to recover possession under that system of law or a possessory decree capable of execution forthwith upon the death of Machhia, in either case, it was rendered wholly void and ineffective in the altered state of law. In this view of the matter, civil revision is left with no real merit in it, and, is accordingly dismissed, by leaving the parties to bear their own costs of it.
16. ' Records be returned.