IVIIAN SAQIB NISAR, J.--- The instant C.R. No. 212 of 1990 as also C.R. No. 30 of 1991, are being disposed of together, as both involve common questions of law and facts and are directed against the same orders of the Courts below.
2. Briefly stated the facts of the case are, that one Mahnd alongwith his brother Ghulam Muhammad, the father of the petitioner, were co-owners to the extent of 1/2 share each of the land measuring 257 kanals and .17 marlas, situated in Mauza Behrampur Tehsil Pasroor. District Sialkot.
Mahnd died on 16.6.1946. As per mutation No. 767, dated 12.8.1946, the share of Mahnd (the suit land) under the customary law devolved upon Mst. Hasham Bibi his widow as a limited owner. The respondents Nos. 1 to 9 claiming of having entered into an agreement to sell dated 28.1.1969 with Mst. Hasham Bibi for the sale of the suit land, filed a suit for specific performance against her on 1.12.1969. On account of the consent of Mst. Hasham Bibi, the suit was decreed on 14.4.1971, but it was directed to the plaintiffs to deposit the balance consideration amount in the Court by or before 30.6.1971, otherwise, their suit shall stand dismissed. There is no proof on the record that this amount was deposited by the judgment debtors as directed in the decree or the decree was got executed by them, culminating into sale of the suit land.
3. In the meanwhile, Mst. Hasham Bibi seems to have died and as per Mutation No. 345, date 28.3.1973, the suit land was succeeded by the petitioner as being the legal heir of last male owner Mahnd and also Mst. Hasham Bibi..
4. The respondents Nos. 1 to 9 filed a suit for permanent injunction against the petitioner stating to be owner in possession which they allegedly obtained on the basis of the decree for specific performance dated 14.4.1971. This suit was resisted by the petitioner on the ground that he was owner in- possession on the basis of inheritance mutation. Following issues were framed:-
(1) Whether the plaintiffs are owners in possession of the , suit land?
(2) If issue No 1 is not proved, whether the defendant is owner in possession of the suit land?
(3) Whether the Mutation No. 345 is illegal, void, fictitious and ineffective against the rights of the plaintiffs?
(4) Relief.
5. After trial, the learned Civil Judge vide judgment and decree dated 23.12.1975 dismissed the suit holding that the respondents Nos. 1 to 9 had not deposited the amount in terms of the decree of specific performance passed in their favour dated 14.4.1971 and thus their suit stood dismissed.
Besides, there is no mutation of sale or sale-deed in their favour in pursuance of the said decree, resultantly, they have not been able to prove their ownership. On issue No. 2, the petitioner was held to be the owner on account of the inheritance as envisaged by Mutation No. 345. The mutation was also held to be valid, therefore, suit filed by the respondents Nos. 1 to 9 was dismissed. It seems from the record that during this period, the respondents Nos. .10 to 19 filed a _suit for pre-emption- challenging the sale in favour of the respondents Nos. 1 to 9 on the basis of the aforesaid decree for specific performance. This .Suit was allowed by the learned Civil Judge vide judgment and decree dated 23.9.1975. In order to seek the possession under this decree, the respondents Nos. 10 to 19 filed an execution petition, when the present petitioner moved an application under Order 21, Rules 97, 101 and 103, stating therein that he being the owner of the suit property cannot be dispossessed in pursuance of the aforesaid pre-emption decree. His claim is based upon inheritance to the estate left by the decree Mahnd to the extent of 3/4 share as the last male owner, on the termination of the customary entitlement of Mst. Hasham Bibi. Besides, he also claimed the inheritance to the estate of Mst. Hasham Bibi qua 1/4 share in the suit land, 'due to his relationship with her. This application was resisted by the respondents-and the learned Civil Judge framed the following issues:
(1) Whether the objector is owner of the land under the execution on the ground mentioned in pars Nos. 6- and 7 of this petition? OP 'Objector.
(2) If issue No. 1 is proved then whether the disputed, decree is in-executable? OP Objector.
(3) Whether the objector is entitled to the restoration of the disputed land? OP Objector.
After evidence of the parties, allowed the application in the following terms:- "In view of my above findings, this objection petition is allowed with an observation that the constructive possession of 3/4 share of the land under execution be restored to the petitioner. The respondents-the decree holders shall be entitled to recover 3/4 share of the sale price paid by them to the judgment debtor."
For the remaining share, the objection petition was dismissed.
Aggrieved, both the parties filed appeals, which have been disalLowed by the learned Appellate Court vide order dated 8.10.1989, upholding the findings of the learned Executing Court.
6. The learned counsel for the petitioner contends that the decree for specific performance dated 14,4.1971 passed in favour of the respondents Nos. 1 to 10 was conditional on the deposit in the Court of the amount mentioned in the decree and in failure of their doing the needful by or before 30.6.1971, the suit would be deemed to have been dismissed. As the said respondents did not deposit the amount, the suit stood dismissed and consequently, no valid title passed on to the respondents Nos. 1 to 9 on the basis of the decree, therefore, no valid sale had been made in their favour, which could be pre-empted by the respondents Nos. 10 to 19. It is also stated that the respondents Nos. 1 to 10 never sought the execution of the decree for specific performance dated 14.4.1971. No sale mutation or sale-deed has been effected in their favour under the said decree.
Further submits that in the earlier suit for permanent injunction, filed by the respondents Nos. 1 to 10, the petitioner has been declared to be owner in possession of the suit property and the mutation of inheritance No. 3455 was held to be valid, consequently, as the respondents Nos. 1 to 9 were not owners of the suit property, therefore, the decree for pre-emption could not be passed in favour of the respondents Nos. 10 to 19, which is nullity in the eyes of law and is in executable.
7. Conversely, the learned counsel for the respondents states that the petitioner failed to challenge the decree for preemption passed in their favour under the provisions of Section 12(2), CPC. The question of entitlement, such as the rights of ownership or interest of the petitioner in the suit property, as involved in the present matter, could not be decided in limited jurisdiction of the Executing Court under Order 21, Rules 97, etc., therefore, until and unless the decree for pre-emption was set aside in appropriate proceedings, no relief could be granted to the petitioner.
8. I have heard the learned counsel for the parties. According to the decree for specific performance dated 14.4.1971, the decree holders (respondents Nos. 1 to 9) were obliged to deposit an amount of Rs.11000/- in the Court by or before 30.6.1971. It is not proved. On the record at all, if such deposit was ever made. The decree was conditional. And on failure of the deposit of said amount, the suit would be deemed to have been dismissed, thus there was no decree for specific performance in favour of the said respondents. According to judgment reported as Muhammad !Shag v. Muhammad Siddique (PLD 1975 Lah. 909), "a decree for specific performance, only declares a right of the decree-holder to the property transferred to him. The title of the property remains vested with the judgment debtor till the sale-deed is executed and registered in favour of the decree-holder." Id the instant case, not only that the suit for specific performance of the respondents Nos. 1 to 9 had been dismiss'ed for non-deposit of the amount envisaged by the decree, such decree was never got executed and because of the lack of sale mutation or sale- deed in favour of the respondents Nos. 1 to 9, no valid title of ownership had passed on to them.
Consequently, no sale had taken place in favour of the said respondents, which could be pre- empted, by the respondents Nos. 10 to 19. As per Section 4 of the Punjab Preemption Act, 1913, only a sale of an immovable property could, give rise to a cause of action to a would be pre-emptor for maintaining an action. But where no sale has taken place as held above, neither 'any pre-emption suit could be filed nor a decree competently passed. TherefOre, such decree for pre-emption in favour of the respondents Nos. 10 to 19 was void and could validly 'be ignored by the Court- executing the same.
9. The other feature of the case is, that when Mutation No 345, dated 28.3.1973 was attested in favour of the petitioner, on the termination of the limited ownership of Mst. Hasham Bibi, he inherited the. Suit property as an owner thereof. This was challenged by the respondents Nos. 1 to 9 in the suit for permanent injunction as mentioned above, claiming that they had obtained the possession of the suit property on accbunt of the decree for specific performance, but the Civil Judge seized of the matter, adjudged that the respondents Nos.
1 to 9 are not the owners, rather the ownership of the property vests with the petitioner. The mutation impugned in the suit, was declared as valid and legal and the petitioner was also restored the possession of the suit property. This decree operates as res judicata not only qua the respondents Nos. 1 to '9, who were the plaintiffs in the case, but also the respondents Nos. 10 to 19, who stepped into their 'Shoes as the pre-emptor and are deriving their so-called titled through the said respondents.
10. There is an other important aspect of the case, that in the year 1962, West Pakistan Muslim Personal Law (Shariat Application) Act, 1962 was promulgated, by virtue of Section 3 of the Act,- limited estate in respect of immovable property held by a female under the customary law, was terminated, thus in the year 1969, when the respondents Nos. 1 to 9 claims to have been entered into an agreement to sell with Mst. Hasham Bibi, her limited ownership under the customary law stood extinguished. She was not the owner of the entire suit land, which she could validly agreed to sell in favour of the respondents Nos. 1 to 9, or consent to the passing of a decree for specific performance, at least this is true to the extent of 3/4 share of the suit land, which as per the law mentioned above, had reverted to the heirs of the last male owner of the property, whereas for the remaining 1/4 share, suffice it to iterate that as the condition of the decree for specific performance was not fulfilled by the respondents Nos. 1 to 9, their suit was dismissed; more over, this, decree was never got executed, no sale had been made in favour of the said respondents, consequently, to this extent also, no valid title by way of sale had passed on the respondents Nos. 1 to 9, which could be pre-empted by the other respondents.
11. The argument of the learned counsel for the respondents, that the Executing Court has a limited jurisdiction under the provisions of Order 21, Rule 97, 101 and 103, and could not go into the intricate and complicated questions regarding the title to the suit property. I am afraid, this contention has no merits. According to Order 21, Rule 103, CPC, "All the questions arising as to title, right or interest in, or possession of, immovable property, between an applicant under rule 97 and the opposite party, or between an applicant under rule 100 and the opposite party, shall be adjudged upon and determined by the Court, and no separate suit shall lie for the determination of any such matter."
Undoubtedly, in the present case, 'the petitioner on account of the decree, passed in the suit for permanent injunction filed by the respondents Nos. 1 to 9 had been adjudged the owner of the suit property, coupled with mutation of inheritance No. 345 thus had a right and interest in the property, which matter could only be determined by the Executing Court and no other Court had the jurisdiction in that behalf. Support in this regard can be drawn from the judgments reported as Fakir Abdullah and others v. Government of Sindh and others (PLD 2001 SC 131). More over,.
According to the judgments reported as Noorul Amin and another v. Muhammad Hashmi and 27 others (1992 SCM R 1744), Mst. Fehmida Begum v. Muhammad Khalid and another (1992 SCM R 1908), Sheikh Ghulam Nabi etc. v. Ejaz Ghani and others (1982 SCM R 650) Amiabai v. Lb-rahim and 4 others (PLD 1992 Ker. 270), Muhammad Zaman v. Yaseen (1986 CLC 1282) and Ainin v. Haji Abdul Sattar and 21 others (1992 CLC 956), the questions about the executability of the decree and the validity thereof, can be determined by the Executing Court not only under Order 21, Rule 103, but also under the provisions of Section 12(2), CPC. In the instant case, as the Executing Court was the same Court, which passed the decree for pre-emption in favour of the respondents Nos, 10 to 19, therefore, the objection petition of the petitioner under Order 11, Rule 97, etc., could always be considered and treated an application under Section 12(2) .CPC. Thus viewing it from any angle, the result remains the same. Therefore, in the light of above, I reject the objection of the learned counsel for the respondents that the objection application f the petitioner was not maintainable.
12. However, the learned Courts below have erroneously refused to allow the application of the petitioner to the extent of 1/4 share, presuming on the basis that Mst. Hashim Bibi, was the owner of 1/4 share under the Muslim Law, which she would inherit, when her limited ownership terminated, thus to this extent, the decree for specific performance was valid in favour of the respGndents Nos. 1 to 9. It may be stated that as the decree was not complied with by the respondents Nos. 1 to 9 as they did not deposit the amount; no sale even to the extent of 1/4 share was effected in their favour in pursuance of this decree, therefore, no valid title had passed on to the said respondents. Rather on the contrary, on the basis of the mutation No. 34 and the decree in the suit for permanent injunction filed by the.
Respondents Nos. 1 to 9, the petitioner was adjudged to be the owner of whole of the suit property.