This judgment will dispose of three connected Civil Revisions Nos.30 of 1989, 31 of 1989 and 32 of 1989.
2. Briefly stated facts of the case out of which these three civil revisions have arisen are that against three independent sales of agricultural land, the petitioner and respondent No.l filed three independent pre-emption suits. The suits filed by the petitioner were decreed by the trial Court and those of respondent No.l were dismissed. In execution proceeding the petitioner obtained actual physical possession of the suit land. The respondent No.l filed appeal against the decree of dismissal of the suit filed by him which succeeded and case was remanded to the learned trial Court of determination of the proportionate shares of the two rival pre-emptors as both the rival pre-emptors were held to be possessed of superior pre-emptive right, hence, entitled to a decree in their favour. In post-remand proceeding learned trial Court granted decree to the petitioner as well as the respondent No.l to the extent of 1/2 share each in the land in dispute. Thereafter, the respondent No.l filed execution petition claiming issuance of warrant of actual physical possession to the extent of 1/2 share in the suit land. Petitioner filed an objection petition resisting the issuance of warrant of delivery of actual physical possession on the ground that the petitioner having become a co-sharer in the land in question and having come in possession thereof in earlier execution proceedings respondent No.l is not entitled to the issuance of warrant of actual physical possession in his favour as he has been granted decree to the extent of 1/2 share of the land in question and until and unless partition takes place he cannot get actual physical possession of any portion of the land in dispute. Objection petition was dismissed by the learned trial Court and warrant of possession for delivery of actual physical possession was issued by the Executing Court with a direction to the Tehsildar to effect partition of the land in dispute and deliver possession of 1/2 share of the land to respondent No.l. This order was challenged in appeals filed by the petitioner which have been dismissed, hence, three civil revisions have been filed to challenge the aforementioned orders passed by the learned Executing Court affirmed in appeal.
3. Mirza Anwar Baig, Advocate has appeared on behalf of the petitioner in each civil revision whereas Mr. Wamiq Javed, Advocate has appeared on behalf of respondent No.l. None has appeared on behalf of other respondents.
4. Learned counsel for the petitioner has argued that the petitioner having been delivered possession of the total land in execution of pre-emption decree passed in his favour and subsequently having been held to be entitled to retain of 1/2 share therein, his status will be that of a co-sharer and, hence, respondent No.l in whose favour a decree of 1/2 share has been passed is not entitled to the issuance of a warrant for delivery of actual physical possession and the learned Executing Court could not have gone behind the decree and could not have issued a warrant with a direction to petition the land in question, hence, the impugned orders passed by the two Courts below are illegal and are without a lawful authority and the respondent No.l is only entitled to the issuance of warrant of symbolic possession to the extent of 1/2 share of the land in question. In support of his contention learned counsel has placed reliance on law declared in cases of Safia Khatun v. Maulvi Mahbub-ur---Rehman and others (PLD 1962 Dacca 265), Azam Khan v. Azad Khan etc. (PLD 1986 Lah. 275), Jan Muhammad v. Abdur Rashid and 5 others (1993 SCMR 1463) and Bawa Maharaj Singh v. Bawa Gurmukh Singh and others (AIR 1965 Punjab 166).
5. As against the above arguments, learned counsel for the respondent has contended that the respondent is entitled to the grant of actual physical possession of the land in question to the extent of 1/2 share therein, therefore, the order passed by the two Courts below is quite lawful and is not liable to be interfered with in revisional jurisdiction of this Court. In support of his arguments learned counsel has relied upon the following cases:---
(1) The Punjab Association Club, Lahore v. Major Ejaz Ahmad Khan and another (PLD 1980 Lah. 675).
(2) Muhammad Inayat v. Ghulam Murtaza (PLD 1987 Lah. 537).
(3) Muhammad Ali v. Ghulam Sarwar (1989 SCMR 640).
6. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record, and the cases cited at the Bar.
In case of Safia Khatun v. Maulvi Mahbubar Rahman and others (PLD 1962 Dacca 265) at page 269 of the report it has been held as under:--- "Considering the language as employed in clause (1) and clause (2) of Order XXI, rule 35 of the Code it seems dear that when there are no anomalous circumstances which might stand in the way of giving delivery of actual possession of an immovable property in pursuance of a decree for Khas possession, Khas possession can and should be given according to terms of the decree. It also seems dear that if there is no conflicting interest as between the holders of the decree and some obstruction is put up at the instance of the judgment-debtor since the passing of the decree either in shape of erection of structure or otherwise, the judgment-debtor can be evicted and possession can be given after removal of such structures in pursuance of the decree following the mode or procedure as indicated in clause (1) of Order XXI, rule 35 of the Code. But in a case where it is difficult to hold that there is complete agreement as between the co-sharer decree-holders concerned and there is a likelihood of obstruction or resistance arising as a consequence of any disagreement between the interested decree holders, it is safe for the Executing Court to follow the procedure as laid down in clause (2) of Order XXI, rule 35 of the Code so that while the judgment- debtor concerned might be regarded as bound by such execution and symbolical possession might be deemed to be actual possession in the eye of law so far the judgment-debtor himself was concerned, yet for all practical purposes of peaceful enjoyment and possession the parties would be required to have adequate reliefs from a competent Court either in the form of partition or otherwise. It is difficult to conceive that a Court should knowingly be a party to a matter which might lead to unnecessary hostile acts."
In case of Azam Khan v. Azad Khan etc. (PLD 1986 Lah. 275) of the report it has been held as under:- ---- "Evidence produced in support of the issues consist of oral testimony of witnesses and copies of Revenue papers. Plaintiff's case was that he was in settled possession of the suit property as co- sharer, had built a house on the property and was in its complete control and Azam Khan defendant on the basis of a solitary entry in Khasra Girdwari showing him to be in possession of 7 Marlas of land on the eastern side of Khasra 'could not justify his interference with possession of the plaintiff. As against this defendant's version was that he was in possession and was using 7 Marlas as a courtyard of his house. Possession was supported upon the basis of exchanged mutation dated 13-2-1989 Exh.P3. Plaintiff's case was supported by Muhammad Akbar, his son and special attorney. In defence apart from Azam Khan, Malik Bashir Ahmad, Yasin Khan and Fateh Khan appeared as D.W.1 to D.W.3. In Exh.P2 which consists of two perts Khasra No.7414/1 was shown in the joint ownership of Col. Ghulam Hussam and others was recorded as Maqbooza Malkan.
Classification of the land was Gher Mumken Ghar and its area was 56 Kanals 10 Marlas. In the second Pert Khasra No.7414/1 measuring 2 Kanals was shown in possession of Azad Kan, Hissadar and classification of the land shown was Gher Mumken Makan and courtyard. Two perts when read together bring out that total area of aforesaid Khasra number was 58 Kanals 10 Marlas. Exh.P3 is an exchanged mutation. By this mutation Manzoor Ahmad, a co-sharer is shown to have transferred 7 Marlas of land out of Khasra No.7414/measuring 2 Kanals to Azam Khan in lieu of property received by him from Khasra No.541. It appears that Manzoor Ahmad had transferred 194/1170 share from the entire Khasra numbers and not from its part which measured two Kanals. Looked at thus it comes out that the share transferred was not correctly calculated. As observed above, mutation was entered on 1-2-1983 and was finally sanctioned on 13-2-1983. Exh.P4, copy of Khasra Girdawri for Kharif 1982 records Azad Khan's possession over the suit property measuring 2 Kanals and its classification was recorded as Gher Mumken Makan. Entry as to be possession of Azad Khan Hissadar was changed in Rabi 1983, when Azam Khan was shown in possession of 7 Marlas of land Hissadar on the eastern side of Khasra No.7514. As regards the rest of the land (1 Kanal 13 Marlas), previous entry was allowed to continue. Obviously except for the exchange mutation, there was no basis for alteration of the previous entry which showed Azad Khan in possession of the suit property as co-sharer. On the examination of oral evidence and the entries in Revenue papers Court of appeal found that possession of Azad Khan Hissadar continued despite adverse entry in Exh.D4 which showed Azam Khan to be in possession of 7 Marlas of land. No material was brought on record to support the change of entry in Khasra Girdawari in Rabi 1983. Copy of the daily-diary has not been putin. As Azam Khan was the beneficiary of entry in dispute, it was for him to prove the necessary facts justifying the change. In the absence of proper material Court of appeal was amply justified in holding that the altered entry was brought about illegally. It is well-established proposition of law that once an entry in the Revenue Record is proved to be illegal, the previous entry is deemed to stand for an entry subsists till a new one is lawfully substituted for it. See Allah Dad v. Muhammad Ali and others (PLD 1956 Lahore 245). It is also well-settled that a co-sharer in exclusive possession of a parcel of joint land, is entitled to maintain his Hissadari possession till the joint property was partitioned by actual metes and bounds and no person including a co-sharer can disposes him except through media of a partition suit. A co-sharer dispossessed by another in the mehal where lands are held in severalty is entitled to recover separate possession even apart from the provisions of Specific Relief Act. See Ganesha-Mal v. Ibrahim and others AIR 1919 Lahore 237 (2) where Scott Smith, J. observed:-------- "In the case of a joint Khata of agricultural land one co-sharer ordinarily cultivates one field and other co-sharers cultivate other fileds one sharer can dispossess the other against his will from the field of which he has possession. In Jhangi v. Ramzan (1910) 13 P.R. 1910) it was stated that in accordance with well-known law and custom as to possession of plots of Shamlat by individual co-sharers the defendants in forcibly dispossession were qua plaintiff mere trespassers. In accordance with the principle I hold that plaintiff-appellant's peaceful possession was a substantive right, the infringement of which gave rise to a cause of action. As pointed out in that case also the plaintiff might have sued under section 9, Specific Relief Act but he was not bound to do so. Plaintiff cultivated Cheri in the land in Kharif 1916 and it may very possibly have been lying vacant in the succeeding Rabi. The fact alone would not however entitled defendant to take possession without the plaintiff's consent. I hold that the plaintiff is entitled to recovery of possession----------"
In Panna and Giriraj v. Madanlal (AIR 1955 Rajastan 173) Ranawat Judge observed:-- "Coming to the second point, it may be pointed out that though the entire village is owned by the village community as Shamlat Deh, all the 'co-sharers possess separate pieces of land for their cultivation and the plaintiffs father according to the practice of the village could remain into the possession of the land which was in his occupation at that time until partition. The point urged on behalf of the appellant is that the title to the suit land vested only in the village community and the plaintiff could not, therefore, claim exclusive possession of the suit land. The decree for possession however in the present case does not take away or prejudice any right of co-sharer in Shamlat Deh and the apprehension of the appellant in this behalf is without any basis. The tenure of land prevalent in the area of the former Alwar State was on the lines of the tenure system of the Punjab and the authority cited by the learned counsel of the respondent in Karam Chand v. Dr. Karamdad Khan (V25 (AIR 1938 Lah. 465) applies with equal force to this case. The defendant if he so chooses to do has got a right to claim partition and his rights of Shamlat Deh, as has been observed above, would not be affected in any manner by this decree:'
In case of J. in Muhammad and another v. Abdur Rashid and 5 others (1993 SCMR 1463) at page 1464 of the report it has been held as under:----- "We are afraid that these contentions of the learned counsel have no force because the sale in favour of the petitioners was Hissadari and in the subsequent Revenue Record their possession has consistently been recorded as that of co-sharer and not of exclusive owner. Needless to emphasise that the possession of one co-sharer in law is the possession of all and that any alienation made by the co-sharer in possession cannot be put an end to the joint ownership/possession of the property and the transferee co-sharer steps into the shoes of the transferor qua his ownership rights in the joint property no more no less, as held by this Court in case Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 SC (Pak) 9). In this view of the matter the petitioners can only claim ownership in the entire joint property owned by their transferor with the other co-owners and retain possession of the area specifically purchased by them till partition but cannot claim exclusive ownership thereto. The plaintiffs/respondents were undoubtedly recorded co-sharers and therefore, were rightly held as such by the appellate Court.
However, since the petitioners have already constructed house on the area purchased by them without any objection by that co-sharers, rather they acquiesced in the said construction, the petitioners shall remain in possession thereof till partition of the entire joint property viz. the suit Khasra numbers and the other Khasra numbers in which the transferors of the petitioners were joint owners and in the partition, whenever embarked upon, efforts shall be made to place the same in the lot of the petitioners as far as practicable and other co-sharers compensated in other joint property."
In case of Bawa Maharaj Singh v. Bawa Gurmukh Singh and others (AIR 1965 Punjab 166) wherein at page 168 of the report it has been held as under:-- "Mr. S.L. Puri has further contended that Order 21, Rule 15 is not concerned with disputes inter se the decree-holders and has relied on a passage in Chitaley's Code of Civil Procedure, Vol. III, 7th edition at page 2820. It is thus stated there:-- A decree for joint possession in favour of the two or more persons is to be executed in the manner laid down in this rule. But this rule contemplates execution by the joint decree-holders against the order is not contemplated."
It is urged by Mr. Puri that the application for execution made by Maharaj Singh is nothing more than an execution of a decree against the other decree-holder Randhir Singh. It was held by a Bench of the Calcutta High Court of Chief Justice Chakravartti and S.C. Lahiri, J., in Sree Iswar Sridhar Jew v. Jaanendra Nath Ghose, AIR 1960 Cal. 718, that `the execution of a decree for joint possession by one of the joint decree holders against the other is an impossible notion.'
The remedy in such cases is to obtain possession by way of partition and not in execution proceedings."
In case of the Punjab Association Club, Lahore v. Major Ejaz Ahmad Khan and another (PLD 1980 Lahore 675) it has been held that a warrant of possession issued under Order XXI, rules 32 and 35 is not appealable under the provisions of Order LXIII, rule 1, C.P.C. In case of Muhammad Inayat v.
Ghulam Murtaza (PLD 1987 Lahore 537) it has been held that in case wherein a vendee by virtue of sale-deed was given physical possession of specific Khasra number out of a joint Khata, a pre- emptor decree-holder regarding the said sale can be granted actual physical possession of those Khasra numbers in execution proceedings. In case of Muhammad Ali v. Ghulam Sarwar (1989 SCMR 640) it has been held that in pre-emption cases Civil Court is to pass a decree in accordance with the provision of Order XX, rule 14, C.P.C. and the said decree had to only for the delivery of possession of the land sold and pre--empted which in the said case was definite property and was not a share in joint property. From a perusal of the provisions of Order 21, rule 35, Order 20, rule 14 as well as the case-law cited at the Bar following legal principles appear to have been settled:------- -----
(1) That in case out of a joint Khata vendee purchases specific Khasra numbers although with reference to a share and enters into possession of definite property and the suit is ultimately decreed in favour of the pre-emptor, he can get possession of specific Khasra numbers in execution proceedings.
(2) That in case decree in favour of pre-emptor is passed regarding a share out of the suit property in execution proceeding filed on the basis of such a decree a pre-emptor shall be entitled to the issuance of warrant of symbolic possession to the extent of share regarding which suit has been decreed.
(3) That a co-sharer in possession can retain possession of the joint land till partition.
(4) That the Executing Court cannot go behind the decree.
7. Examined this case in the light of enforcement legal principles, I find that respondent No.l has been granted decree in his favour to the extent of -- share out of the land sold. Learned Trial Court while passing the decree has not ordered the partition of share of both the pre-emptors. Decrees have been passed in equal share. It is admitted position that the petitioner has obtained possession of the total suit land in execution of a pre-emption decree passed in his favour earlier.
In the ultimate decree as well he has been held to be entitled to 1/2 share in the land in dispute.
Consequently, his position becomes that of co-sharer therefore, till the time actual partition takes place he cannot be dispossessed. Learned Executing Court is not competent to go behind the decree and hence issuance of warrant of delivery of actual physical possession of a part of the land in dispute by partitioning thereof amounts to variation of the decree which power does not vest in the Executing Court. Consequently the impugned order passed by the learned Executing Court affirming in appeal is clearly illegal and is without jurisdiction, execution of the decree in question has to take place as per the provisions of Order 21, Rule 35(2), C.P.C. are reproduced as under:----- "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 immovable 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) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt, break open any door or do any other act necessary for putting the decree-holder in possession."
The respondent No.l, therefore, is entitled to the issuance of warrant of symbolic joint possession to the extent of 1/2 share in the land in question and not a warrant for delivery of actual physical possession by partition of the land.
Resultantly, all these civil revisions are accepted and the impugned orders are set aside. The objection petition is accepted and the execution petition is remanded to the learned Executing Court for delivery of symbolic joint possession to the respondent No.l in accordance with the provisions of Order 21, Rule 35(2), C.P.C., the parties are left to bear their own costs.