The appeal has arisen out of execution proceedings in respect of land measuring 17 Kanals 7 Marlas, comprising Survey No. 170, situate in Village Chela Bandi, Tehsil Muzaffarabad. Abdul Rehman, ancestor of the present appellants, instituted a suit for declaration and perpetual injunction, in respect of suit property, in the Court of Additional Sub-Judge, Muzaffarabad, on March 29, 1983. It was claimed that the plaintiff occupied the suit kind in his own right and acquired title by virtue of adverse possession It was also averred that a house was constructed in the land before 1947 which was occupied by the plaintiff for his residence. A counter-suit was instituted, by Mst.
Mamoona, who was succeeded by Yunus Shah and others. This was a suit for possession of the suit land. The suit was instituted on March 29, 1983. Both the suits were consolidated. The suit for possession instituted by Pir Muhammad Yunus Shah and others was decreed and counter-suit was dismissed. An appeal before the District Judge, was dismissed on February 19, 1986. The second appeal before this Court was also dismissed on February 14, 1988 and finally, the appeal before the Supreme Court was dismissed on March 27, 1990.
2. An application for execution of decree was moved on February 8, 1987. The possession of land measuring 17 Kanals was delivered. However, possession of site under the house measuring 7 Marla, was not delivered. The local Patwari sought direction from the executing Court to that effect on June 17, 1990. The executing Court turned down the application of the decree---holders to the extent of 7 Marlas under the house, on July 21, 1990. A review petition was addressed which was dismissed on August 22,1990. The order was assailed before the learned District Judge and in two revisions before this Court. The learned District judge accepted the appeal and remanded the case for an inquiry into the question of house in dispute. The order was passed on February 14, 1991. The revision petitions were disposed of in the light of order of the learned District Judge. The executing Court disposed of the application on April 10,1991. An appeal was addressed to the learned District Judge. The appeal was accepted on\,October 3, 1991 and once again, the case was remanded for holding inquiry into the question of existence of the house prior to the institution of the suit and its effect on the decree. On conclusion of the inquiry, once again, the executing Court dismissed the application of the decree-holders on February 28, 1993. Meanwhile, Sarwar Shah, one of the decree-holders surrendered his share in the decree in favour of the judgment-debtors and moved an application to put an end to the execution proceedings. The order of dismissal of the application was challenged in appeal before the learned District Judge. It was passed on to the learned Additional District Judge, Muzaffarabad. The learned Additional District Judge accepted the plea of the decree-holders and issued direction for ejectment of the appellants, vide order of June 13, 1993, This order is assailed in the present appeal.
3. Mr. Muhammad Yaqub Mughal, the learned counsel for the appellants, contended that since the house in dispute was not part of the decree, as such, its possession could not be delivered to the decree-holders, nor the house could be demolished by the executing Court, as decided by the learned Additional District Judge. It was further argued that since one of the decree-holders surrendered his share in the decree, in favour of the judgment---debtors, to the extent of share of the decree-holder, the decree was not executable against the judgment-debtors. In support of the contention, reference was made to 1972 SCM R 237 and 1984 CLC 1531 Mr. Ejaz Ali Gilani, the learned counsel for the apposite side, controverted the aforesaid plaints and supported the impugned order. It was argued that since the decree was passed for the land under the house, as such it was enjoined upon the Court to issue direction to the judgment-debtors to demolish the house and remove its material so that possession of the site could be delivered to the decree-holders.
Reference was made to AIR 1927 Rangoon 82, AIR 1927 Patna 141, PLD 1967 Pehsawar 154, AIR 1957 Patna 331, AIR 1970 Allahabad 648, AIR 1980 Patna 197, 1970 SCMR 488, 1991 CLC 82, PLD 1947 PC 272, AIR 1932 Allahabad 337 and AIR 1981 Allahabad 280.
4. All questions relating to execution, discharge or satisfaction of decree are determined by the executing Court and at no other forum. The executing Court is empowered under section 47 of the Civil Procedure Code, to settle all the controversies between theparties. The decree in question is executable in the light of its terms and conditions. Thus, the executing Court has to confine its deliberations within the purview of the decree and not beyond that.
5. An objection against the execution of - decree may be raised in executing proceedings, although it was not raised earlier at the time of passing of the decree. In presence of such an objection, it was enjoined upon the Court to dispose it of, in the light of terms and conditions of the decree. In the present case, the dispute confines to execution by delivery of possession of the site under the house occupied by the judgment-debtors. It is evident that the decree-holders brought a suit for possession of the land measuring 17 Kanals 7 Marlas, One of this land, 7 Marlas were covered by a house occupied by the judgment-debtors. The decree to the extent of 7 Marlas was - not executable unless possession of house was delivered to the decree-holders or it was demolished and its material was shifted by the judgment-debtors.
It is claimed by the decree-holders that since the decree was for land measuring 17 Kanals 7 Marlas, they were entitled to execution of decree in its entirety, irrespective of existence of the house over 7 Marlas. The counter claim was that since the house was not part of the decree, as such its possession could neither be delivered to the decree-holders nor it was permissible under law to demolish it, in order to evict the judgment-debtors.
6. The executing Court is vested with power to interpret the decree in the light of pleadings and judgment of the Court. This view is not disputed and it finds support from Sahai Mistri's case (AIR 1927 Patna 141) and Syed Riaz Ahmed Shah's case (1972 SCM R 237). It was held that the executing Court cannot go behind the decree. An identical view was held in Mst. Shirr Majid's case (1984 CLC 1531). In Kauk Sike's case (AIR 1927 Rangoon 82), it was held that "it was not within the province of the executing Court to order the debtor to dismantle the buildings on the land as to which the decree was silent, even when ordering the debtor to give up possession of the said land in terms of the decree".
7. A perusal of the pleadings of the parties reflects that Abdul Rehman, ancestor of the judgment- debtors, in his pleadings, averred that a house was raised in the land and it was occupied by him since long. This plea was raised, in order to claim adverse possession and in the alternative, compensation for the improvement. The trial Court recorded its finding against him. The learned District Judge also decided the point against the claimant. The learned Judge in the High Court, however, discussed the evidence on the point in the following manner:-- "Similarly, there is no evidence on the record to show that Abdur Rehman, deceased appellant, had constructed any house or planted any trees on the suit land with the consent or acquiescence of the owner and as such he was entitled to any costs of such improvements. In fact, he has failed to prove his claim that he had made any improvement on the suit land. None of the witnesses has said that the house on the suit land was constructed by the deceased appellant. Even Abdur Rehman, deceased appellant, has taken a contradictory stand in this respect inasmuch as in his plaint he has claimed the house to have been constructed by him on the land while in his statement the house in question was deposed to have been built by his father."
The Supreme Court declined to apply its mind to the proposition as in its view, it was not permissible to appreciate the question of facts in presence of concurrent findings of facts of the subordinate Courts and the High Court.
8. On the second round when an inquiry was constituted to determine as to whether the house existed over the land prior to the institution of the suit or it was raised during the pendency, Syed Usman Shah, one of the decree-- holders, appeared as witness on December 12, 1992. In his examination-in---chief, it was deposed that vide judgment of the District Judge of February 19, 1986, it was already decided that no house was constructed by the judgment-debtors, as such they were not eligible to improvements in the shape of compensation. In answer to a question in cross-examination, however, presence of the house was admitted impliedly. It was deposed that initially a `chhappar' was raised. It was improved from time to time and presently, it covered the site in dispute. It was elaborated that by virtue of improvement, the shape and design of the house, was changed by the judgment-debtors. There was no evidence to the effect as to when the present shape of the house was designed and altered. In rebuttal, the judgment-debtors produced Khalilur Rehman, Khan Zaman, Kala Khan, and Muhammad Azeem, one of the judgment-debtors appeared himself. All these witnesses deposed categorically in favour of existence of the house prior to the institution of the suit for possession. Therefore, it is established from the pleadings of Abdur Rehman, ancestor of the judgment-debtors and the evidence recorded by the executing Court that the house in question was in existence at the time of institution of the suit for possession.
It goes without saying that at no stage, the judgment-- debtors claimed the ownership of the house under consideration. This was done despite the fact that Abdul Rehman claimed the existence of the house over a portion of the land in dispute. His claim was supported by the entries in the Jamabandi for the year 1953-54, appended with the execution application wherein it was shown that land measuring 2 Marlas was covered by mosque, 5 Marlas under house (`Kotha'), 5 Marlas under shop and one Kanal under road..
9. On reaching the conclusion that the house under consideration existed prior to the institution of the suit, it has to be settled as to how the decree may be executed in respect of the land under the house.
10. Strictly speaking, in absence of reference to a house in the decree, it cannot be executed by delivery of possession of the house of demolishing it and shifting its material. In this situation, the legal course available to the decree --holders is to seek delivery of symbolic possession of the land under the house.
11. It was pointed out that Sarwar Shah, one of the decree-holders surrendered his interest in the decree, in favour of the judgment-debtors. That action by itself could not stop the execution of the decree. At the best, the judgment-debtors in whose favour one of the decree-holders abandoned his share irk the land, entered into his shoes. Thus, at the time of partition of land, the subject of execution, the decree-holders can validly claim the share of Sarwar Shah, in the land: By virtue of such claim, if so permitted under law, they may retain the possession of the land under the house.
But this, option was available at the stage of post-execution proceedings.
12. The case-law relied by the learned counsel for the respondents, is not found helpful to the proposition under consideration, on account of distinguishable facts and propositions settled therein.
13. The learned Additional District Judge arrived at the conclusion that since the decree was passed for land measuring 17 Kanals 7 Marlas, it was executable in its entirety, inclusive of 7 Marlas of land covered under the house. In order to wriggle out of the difficulty, it was deemed expedient to direct the judgment-debtors to demolish the house and remove its material, to enable to deliver the possession of the site, in execution of the decree. The finding is not supported by law. Unless it was claimed by the decree-holders, in their suit, that they may be granted relief for possession by demolishing the house and removal of its material and decree was passed accordingly, such a direction could not be given. The authorities on the basis of which the impugned order has been passed, settled the proposition of law in the light of the pleadings of the parties and ultimately granted relief in the shape of the decree. The position in the present case is quite distinct.
14. The decree-holders claimed at no stage of the trial of the suit, that the house in question was raised after the institution of the suit. In absence ofspecific pleadings and proof in its support, it was least permissible to issue direction for demolishing the house, as held in Indian authorities cited at the bar by the learned counsel for the respondents. In the present case, the position is clear so as to believe that the house in question existed even prior to 1953-54, as entered in the Jamabandi appended with the application for execution of the decree. This position was even admitted, though impliedly, to Usman Shah who appeared as witness. Therefore, failure on the part of the decree-holders to claim ownership of the house or to seek relief by asking to issue direction for demolishing of the house and delivery of possession of the site in question, leads to the conclusion that the house could not be demolished in execution proceedings as it was desired by the decree- holders. The just and equitable course available in the present case is to execute the decree by symbolic delivery of possession of the site. The order of the learned Additional District Judge is, therefore, not maintainable in its present shape. It is accordingly modified. The appeal is disposed of in the aforesaid manner. No order as to costs.