This revision petition is directed against the judgment/order of learned District Judge Mansehra dated 23-12-1991 whereby the judgment/order of Senior Civil Judge Mansehra dated 20-7-1991 was confirmed.
2. The petitioners filed a suit for declaration and delivery of possession of land bearing Khasra Numbers 368,367,372 and 443 measuring 18 Kanals, 19 Marlas situated in the area of village Panodheri against Syed Nizam Shah, which was decreed in favour of the petitioners vide judgment of the learned Senior Civil Judge Mansehra dated 14-2-1979. The appeal filed by the judgment- debtor was also dismissed by the learned District Judge Mansehra vide his judgment/decree dated 29-3-1980 and the said judgment/decree was maintained upto Supreme Court of Pakistan and it was held that Babu Abdullah petitioner-decree-holder was the owner of the property and was also granted decree for possession. Prior to the aforesaid litigations the parties had been litigating before the Settlement Authorities from 1959 to 1978. After the final adjudication the decree-holder filed execution application in the trial Court seeking possession of the land. In execution proceedings an objection petition was filed by the judgment --debtor on 27-6-1990 wherein it was alleged that the execution was time--barred and that the land is in possession of Ghulam Masood, tenant-at-will who was not a party in the previous litigation, hence execution was not maintainable. Similarly on the same day objection petition was filed by Ghulam Masood respondent wherein it was alleged that since he was not a party in the previous litigation, therefore, he was not bound by decree and cannot be dispossessed from the suit-land. The objection petitions were contested by the decree-holder and the objection of the judgment-debtor was dismissed on 28-7-1990 by the executing Court and appeal there against also failed, but no order was passed on the second objection petition of Ghulam Masood. On 20-12-1990 another application was submitted by Ghulam Masood, respondent in the executing Court stating that he had been regularly paying the produce to the previous owner and after the judgment of the Supreme Court of Pakistan he has been paying the produce to the decree--holder and that he cannot be ejected from the property being a tenant-at-will in the land in dispute. The Court after examining Muhammad Khalid Patwari as C. W.1 observed that a decree-holder cannot be held entitled for the physical possession of the decretal land under Order 21, Rule 36, C.P.C. And he can only be delivered symbolic possession. An appeal was filed against this order before the District Judge Mansehra who vide his order dated 23-12-1991 dismissed the appeal and maintained the order of the executing Court.
3. Learned counsel for the petitioner contended that Order 21, Rule 36 is not applicable to the circumstances of the case as tenant-at-will is only a licensee of the judgment-debtor and can be dispossessed in execution of a decree against the judgment-debtor. He further submitted that there had been litigation between the judgment-debtor and decree-holder for the last more than 30 years but the judgment-debtor never raised this objection and at this stage it has only been raised to defeat the judgment/decree passed in favour of the decree-holder. He also referred to Order 21, Rules 97, 98 and 100 and argued that objector can only raise objection after his dispossession and after having been dispossessed he could file the objection petition. He relied on AIR 1931 Madras 534.
4. Opposing the aforesaid contentions, learned counsel for the respondent submitted that the respondent is a tenant in the suit-land since long who has been recorded in Revenue Records as such. He contended that since the respondent was not a party in the litigation, therefore, he -is not bound by the decree and cannot be dispossessed in execution of the said decree.
5. After hearing the learned counsel for the parties and going through the record of the case, I find that on the issues framed by the trial Court was whether the suit is bad for non joinder of necessary parties' and the onus of proof was laid on the defendant judgment-debtor. The finding of the trial Court on this issue (Issue No.9) was as under:-- Issue No. 9.
Nothing has been brought on record to show that someone else is interested in the final adjudication of the suit in land, in absence of which an effective decree cannot be passed. The issue, therefore, fails and is decided in the negative. "
The aforesaid finding was never assailed before the higher Courts and the same was maintained upto the Supreme Court of Pakistan, thus, having attained finality. The judgment-debtor who himself never appeared right from the trial Court upto the Supreme Court and even before the executing Court, submitted an objection petition through attorney on 27-6-1990 alleging for the first time that the respondent is a tenant-at-will in the suit-land and since he was not a party in suit, therefore, execution proceedings are not maintainable. This objection petition was, however, dismissed and appeal against the dismissal order also failed. On the same very day i.e. On 27-6- 1990 another objection petition was filed by the respondent alleging that he was tenant in the land and was not bound by the decree as he was not party in the suit. The record show that the respondent was fully aware of the litigation between the decree-holder and the judgment-debtor but it appears that he was least interested to become a party to the said litigation. After the A dismissal of the appeal of the judgment-debtor from the Court of the District Judge, the decree- holder filed an application before Tehsilder for recovery of produce wherein the statement of respondent was recorded. Even thereafter he never strived to become a party to the litigation to protect his rights. In the circumstances, the objection petition of the respondent does not seem to be bona fide one and it appears that the same has been filed in collusion with the judgment- debtor as a device to defeat the decree obtained by the decree--holder after protracted litigation of more than thirty years. In AIR 1931 Madras 534, it has been held that tenants and servants of a judgment-debtor unless they are occupancy tenants, are bound by the decree against the judgment-debtor. The respondent admittedly is not an occupancy tenant, as such he is bound by the decree and is liable to dispossession alongwith the judgment-debtor. He, however, after dispossession, if so desires, may avail the remedies provided under Order 21, Rule 100, C.P.C.
Resultantly, on acceptance of this revision petition with costs, the impugned orders of the lower Courts are set aside.