This revision petition was against an order of the lower Appellate Court by which is allowed the appeal and vacated an order of the trial Court issuing a temporary injunction for stopping apprehended interference with the alleged possession of the petitioners on the land in dispute.
2. Petitioners claimed hostile possession on the land owned by the respondents and instituted a civil suit for declaration of ownership rights in it and confirmation of possession on it. Alongwith the plaint, they sought for a temporary injunction for protection of their possession on the land from disturbance at the instance of the respondents. The trial Court ordered for a prohibition but in appeal it was re-called.
3. There was no dispute that the land was owned by the respondents. Earlier, they had brought a suit for its possession against Ghulam Hussain Ghazi and Ameer, sons of Haji on 27-11-1980. The suit was decreed in their favour on 2-5-1987. An appeal which was later treated as a revision filed by the defendants of the suit was dismissed. The matter was not agitated further and thus it attained finality between the parties to the suit for possession. It may be observed in passing that the petitioners had applied for becoming a party to the above suit. Trial Court had allowed their impleadment but in revision preferred by the respondents, order of the trial Court was vacated. So, the petitioners were not allowed to join those proceedings culminating in the final decree for possession of the land in favour of respondents. Petitioners had also instituted a civil suit of similar nature against the respondents in the Civil Court at Bhakkar but it was allowed to be dismissed for default in appearance on 8-4-1985 in presence of some of the defendants. The petitioners made no effort for restoration of the suit dismissed for default. Instead, allowing the dismissal for default in appearance to stand, they instituted a fresh suit on the subject-matter.
4. Respondents have put in execution the decree for possession of the land passed in their favour.
Anticipating dispossession, petitioners resorted to this suit. Respondents asserted that petitioners were not in actual possession of the land already decreed to them and the suit was filed merely to protect the possession of the judgment-debtors of the earlier suit. Petitioners gave a contrary version and claimed to hold the land in adverse possession. As far the entries in the Revenue Records, initially the petitioners were recorded as "Ghair Dakhil Karan" in the cultivation column of the Jamabandi for the year 1968-69 at owners rate, on account of Nature . In the Jamabandi for the year 1979-80, petitioners were recorded "Qabizan Awwal" at owners rate on account of Nautur and the judgment-debtors were shown in actual possession as "Qabizan Doem". This entry was repeated in the Jamabandi for the year 1987-88. Entry of "Qabiz" was made without a mutation attested for it. Entries in land records prima facie showed actual possession of the judgment- debtors against whom the decree for possession was already passed by a Court of competent jurisdiction. Therefore, on a prima facie reading of the record, the petitioners were not shown to be in actual possession of the land and to this extent, the observations in the impugned order appeared correct.
5. There was another point for consideration also and that touched the maintainability of the suit itself. As observed above, a decree for possession respecting the land in suit was already in the field in favour of respondents. It is in process of the execution. Rule 103 of Order XXI, C.P.C. as amended by Ordinance XII of 1972 may present a bar for an independent suit. In terms of this rule, all questions arising as to title, right or interest in, or possession of the immovably property under Rule 97 or Rule 100, C.P.C. are required to be adjudicated upon by the Court executing the decree and separate suit was barred. The determination made under the Rule was put in the definition of a decree under section 2 (2) of the Code of Civil Procedure. Though the point vas not raised as such and examined in the lower Courts, yet it may present a little difficulty for the petitioners for maintaining of a separate independent suit. There remedy may lie in raising objection to the execution of decree against them. The case in Amiabai v. Ibrahim and 4 others (PLD 1992 Karachi 270) may be in point. Since the matter is being prima facie looked into, it is unnecessary to finally express .on its merits. Nevertheless, the trial Court shall attend to it in the course of trial of the suit.
As far the merits of this civil litigation, it has none. Therefore, it fails and is dismissed with no order as to its costs in this Court.