This judgment shall dispose of connected Civil Revisions Nos.899 of 1994 and 900 of 1994 Re: "Ch. Habibullah etc. v. Ali Muhammad Mohsin" and also Civil Revision No. 1093 of 1994 re: "Ali Muhammad Mohsin v. Ch. Habibullah etc." because they arise out of the same controversy between the parties.
2. The facts leading to the filing of these revision petitions, briefly, stated, are that Ch. Habibullah, who' is since dead, had landed property in Districts Vehari, Faisalabad and Rajanpur. He happened to be the father of Ali Muhammad Mohsin, Wali Muhammad, Muhammad Akhtar Hussain and Abdul Hussain. It has been claimed in Civil Revisions Nos.899 and 900 of 1994 that Ch. Habibullah was pressurised by Ali Muhammad Mohsin to distribute his properties/ownership among his sons.
He therefore, distributed the same among his four sons by way of Tamleek in equal shares through a compromise deed, dated 26-10-1978 and on the basis thereof a suit pending before the Administrative Civil Judge, Faisalabad was decreed on 27-11-1978. The landed property situated in village Gullu Tehsil Mailsi measured 28 Acres, 2 Kanals which was also allegedly distributed in four equal shares. This decision was subsequently ratified in arbitration proceedings as per the award/decision, dated 1,7-3-1984. The matter, however, did not end there and the parties again entered into litigation. It was finally in appeal that the learned Additional District Judge, Faisalabad took keen interest in getting the dispute between 'the parties permanently settled, as a result of which the parties again entered into a compromise which was duly incorporated in his order, dated 16-11-1989 and on the basis thereof the appeal and other matters pending between the parties were disposed of. It was also allegedly implemented in the Revenue Record but Ali Muhammad Mohsin did not feel satisfied and moved an application for execution of this decree on 23-1-1992 contending that some of the terms of the judgment and decree, dated 6-1-1992 had not duly been satisfied. This assertion of Ali Muhammad Mohsin was based on the following term of the compromise which is reproduced verbatim in Urdu:-- Ali Muhammad Mohsin, therefore, prayed for delivery of possession and attestation of mutation with regard to Killa No.3 in Square No.60 Mauza Ghullu Tehsil Mailsi District Vehari in his name and also urged that since the respondents/judgment-debtors had not complied with the terms of the compromise, he was entitled to a sum of Rs.60,000 as compenstation/damages. The respondents were allegedly served and on 8-4-1992 they filed an application for initiating contempt proceedings against Ali Muhammad Mohsin claiming that he had defied the order of., the learned Additional District Judge, dated 16-11-1989. This application was, however, dismissed on 7-6-1992 by the executing Court and a Robkar for attestation of mutation and delivery of possession in respect of Killa No.3 was issued on 16-6-1992. The respondents, in the said application for execution of the decree, moved an application under section 47 read with section 151, C.P.C. -for cancellation of the warrant of possession but this application was also dismissed by the learned Civil Judge, Faisalabad on.16-7-1992 then seized of the matter.
3. Ch. Habibullah and his three other sons filed two Appeals Nos.87/13 and 88/13 against the orders, dated 7-6-1992 and 16-7-1992 passed by the executing Court which were heard and disposed of by the learned Additional District Judge, Faisalabad who partly accepted Appeal No.87/13 of 1992 arising out of the order, dated 7-6-1992 and set aside the order of the executing Court whereby they were directed to pay a sum of Rs.60,000 to Ali Muhammad Mohsin. Appeal No.88/13 of 1992 arising out of order dated 16-7-1992 was, however, dismissed alongwith the other relief claimed in Appeal No.87/13 of 1992 on 10-2-1994.
The judgment, dated 10-2-1994 in Appeal No.87/13 of 1992 has been assailed in Civil Revision No. 899 of 1994 and the judgment in Appeal No. 88/13 of 1992, dated 10-2-1994 has been impugned in Civil Revision No.900 of 1994. Ali Muhammad Mohsin also assailed the appellate order, dated 10-2- 1994 whereby in Appeal No.87/13 of 1992 arising out of the order, dated 7-6-1992 his claim to the tune of Rs.60,000 was set aside.
4. I have today heard the learned counsel for the parties. All this litigation, in fact, revolves around the term No. l of the compromise, arrived at between the parties which was incorporated by the learned Additional District Judge in his order, dated 16-11-1989, the relevant portion of which-is again reproduced for the sake of convenience:-- Ali Muhammad Mohsin claims that the only possible interpretation of this term is that he was given the entire land comprising Killa No.3 in lieu of 10 Marlas, he had to give up in Killa No.21 of Square No.60. The learned Civil Judge, Faisalabad who passed the order, dated 7-6-1992 was of the view that Ali Muhammad Mohsin as he claims, was given the whole of land comprising Killa No.3 which was adjacent to Kiila No.2 in lieu of his surrendering 10 Marlas in Killa No.21. Since a mutation in respect of 10 Marlas only out of Killa No.3 had been attested in his name the learned Civil Judge thought that Ali Muhammad Mohsin was fully entitled to file an execution petition and also came to the conclusion that since he was, unnecessarily, dragged into litigation, the petition moved by his brothers and father for initiating contempt proceedings against him was without merit and was liable to be dismissed. He accordingly dismissed the said petition and not only directed for issuance of a warrant of possession and attestation of mutation in respect of Killa No.3 of Square No.60 in favour of Ali Muhammad Mohsin but also directed the judgment-debtors to pay the amount mentioned in the petition i.e. a sum of Rs.60,000 to Ali Muhammad Mohsin.
5. The learned Additional District Judge also referred to the same portion of the order, dated 16-11- 1989 and observed that it was not difficult to determine that Ali Muhammad Mohsin was entitled to the entire Killa No.3 but the language used in para. No. l did suffer from ambiguity. He, therefore, concluded that the chance of Habibullah and other appellants to remain under a mistaken interpretation, could not be ruled out. He, thus, set aside the impugned order to the extent of awarding Rs.60,000 to Ali Muhammad Mohsin. It shall not be out of place to reproduce his observations in this behalf which run as under:-- "The benefit of this doubt has to be given to the appellants. Therefore, the penalty amounting to Rs.60,000 could not be summarily imposed on the appellants. If this penalty, too, was to be imposed on the appellants, it would have been in the interest of justice that after framing the issues, the parties should have been allowed to lead evidence because in that case the parties could get the chance of, examining even the learned Additional District Judge, who recorded the order, dated 16-11-1989. Only after giving this opportunity to the parties, some positive findings in this regard could be recorded."
6. Both the parties agree that the language used in para. No. l is ambiguous. To me it appears that the intention behind this para. Was to give only 10 Marlas out of Killa No.3 to Ali Muhammad Mohsin in lieu of 10 Marlas he was supposed to give up in Killa No.21 of Square No.60 situated in the area of village Gullu Tehsil Mailsi. Had it not been the intention, it could not be controverted by both the parties, the land measuring 28 Acres, 2 Kanals would not be said to have been distributed among the four sons in equal shares, as is evident from all the documents on record. Even otherwise the very wording clearly indicates that the mention of 10 Marlas has been omitted due to some oversight etc., otherwise this wording remains incomplete. If the intention was to give the entire Killa No.3 in lieu of 10 Marlas out of Killa No.21 the following words could have easily been used:-- The words could/would not have been unnecessarily incorporated therein. Killa No.3 could obviously be adjacent to Killa No.2 on one side and Killa No.4 on the other. There was, therefore, no good reason to mention Killa No.2 and also the word " V- ". The learned Additional District Judge has although observed that 'further clarification with the language "adjacent to Killa No.2" was unnecessary" yet he also appears to have lost sight of the word " 6f%". As I read it and re-read the same I find that perhaps the maker(s) of this compromise intended the wording to be as under:-- But I do not feel inclined to impose my interpretation of the intention of the parties to this compromise and as observed by the learned Additional District Judge I think that this controversy can effectively be resolved if the matter is again properly looked into by the learned trial Court after framing issue(s), necessary for proper adjudication and allowing the parties an opportunity to lead evidence, as they deem fit, and even to examine the learned Additional District Judge who recorded this order. Only then a positive finding in this behalf could be recorded.
7. Similarly, the claim of Ali Muhammad Mohsin that he was entitled to a sum of Rs.60,000 as he had to pay some penalty (amounting to Rs.50,000) and incur other expenses of this unnecessary litigation, can also be looked into once again.
8. For all these reasons, all the three revision petitions are accepted, the impugned orders are set aside and the case is remanded to the learned trial Court with a direction to the learned Civil Judge or his successor in office, as the case may be, to proceed with the matter afresh in the light of the observations made by this Court and to dispose it of expeditiously, preferably within a period of six months from the receipt of a copy of this judgment. He shall submit a monthly progress report to the M.I.T./Deputy Registrar (Judicial) who shall place it before the Court.
Cost to follow the event.