Muhammad Rafique and two others plaintiffs-petitioners herein had instituted a suit for possession with regard to the agricultural land measuring 8-Kanals, situated in Khasra No.266-Min, Khatoni No.351/1098-1099 Mauza Lakwal. The plaintiffs "averred in their plaint that they on the basis of the judgment and decree dated 25-2-1974 in a suit for pre-emption passed in their favour were owners of the suit property. In compliance of the said pre-emption decree, the sale price was deposited in Court on 20-5-1974 and the defendant-respondent had received the sale price/pre- emption money, but as the execution petition was not filed, therefore, the defendant did not deliver the possession of the suit property to them. The plaintiffs had, therefore, prayed for a decree of possession on the basis of their title.
The suit was contested by Noor Khan defendant who denied the averments of the plaint taking the stand that the plaintiffs had not filed the execution petition of the decree for pre-emption within time, therefore, the present suit was not maintainable.
3. From the factual controversy appearing on the pleading's of the parties, the trial Court led to frame the following issues:--
(1) Whether the suit is time-barred? OPD
(2) Whether the suit is not maintainable? OPD
(3) Whether the plaintiff is the owner of the suit property as described in the headnote of the plaint and is entitled to its possession? OPP
(4) Relief.
4. After recording and appreciating the evidence of the parties, pro and contra, the trial Court vide its judgment and decree dated 27-6-1988 decreed the suit. Feeling aggrieved, the defendant- respondent herein preferred an appeal which came up for hearing before the learned Additional District Judge, Chakwal, who vide his judgment and decree dated 18-7-1995 while accepting the appeal set aside the findings of the trial Court and dismissed the suit of the petitioners.
5. Learned counsel for the petitioners contended that the plaintiffs-petitioners were entitled for the decree of possession on the basis of the decree; which was passed in the pre-emption suit, and the judgment of the Appellate Court that the suit was barred under section 47, C.P.C. Is contrary to law.
6. On the other hand, the argument of the learned counsel for the petitioners have been vehemently opposed by the learned counsel for the respondent contenting that the subsequent suit would not be maintainable as the first suit for pre-emption filed by the plaintiffs-petitioners was also a suit for possession through pre-emption. He further contended that the subsequent suit was barred by section 47, C.P.C.
7. I have heard the arguments of the learned counsel for the parties and have perused the record.
It would be appropriate to reproduce the provisions of section 47, C.P.C.:-- "S.47.---Questions to be determined the Court executing the decree.----(1) All questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) The Court, may, subject to any objection as to limitation or jurisdiction, treat a proceeding under the section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court---fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section be determined by the Court."
8. From the plain reading of the above provisions of law, it reveals that this section does not bar to avail the remedy but only regulates the Forum for the enforcement of rights so as to channelized all matters relating to the execution, discharge or satisfaction of the decree to the Executing Court The bar contained in section 47, C.P.C. Is only attracted to the cases where execution proceedings have been filed for the satisfaction of the decree and if the execution proceedings are pending then no fresh suit shall be filed and all questions would be determined by the Executing Court, wherein the party may file objections. The object of this section is to afford speedy relief to the parties in the matter out of the execution of a decree.
9. In the instant case no execution proceedings have been filed for the satisfaction of the pre- emption decree by the decree-holders and the terms of the decree had been complied with by the plaintiffs by depositing the decretal amount. The question involved in the matter is that the petitioners are the owners of the property on the basis of the decree of pre-emption. As the decree has been passed in favour of the plaintiff and any Court has not set it aside, therefore, it still holds the fields. Although the plaintiffs did not file the execution proceedings of the decree but they had become the owners of the property when the judgment and decree had been passed in their favour on 25-2-1974 and the defendant ceased to be the owner of the suit property thereafter.
10. As soon as the decree is passed in favour of the plaintiffs-petitioners, the defendant-respondent would be deemed to be an illegal occupant of the property and if the decree is implemented in the Revenue Record then the status of the defendant-respondent would be deemed to be as a tenant under the plaintiffs-petitioners. It has been observed by the superior Courts that the Revenue Officers are under legal obligations to implement the decree of pre-emption in the Revenue Record even if the period of execution had expired and the time limit would not be a bar for implementing the decree in the Revenue Record. The provisions of section 47, C.P.C. Are not attracted to the facts of the present case as the plaintiffs-petitioners did not file execution proceedings after the lapse of a period of about eleven years of passing of the decree of pre-emption. The suit for possession has been filed by the plaintiffs-- petitioners within a period of twelve years and they could not be non- suited merely because they defaulted in filing the execution petition for the satisfaction of the decree of pre-emption. The suit for possession under section 8 of the Specific Relief Act can be filed on the basis of title and the petitioners --plaintiffs have already obtained the title of the suit land.
The defendant-respondent in his written statement did not deny the decree of possession passed in favour of the plaintiffs. He also did not specifically deny the averments of the plaint. However, he took the stand that he was owner in possession of the suit property but he did not place on record any proof to establish his ownership with regard to the suit property.
11. Three legal remedies were available for the plaintiffs/decree holders i.e. (i) to file execution petition for the implementation of the decree of possession, (ii) to apply to the Revenue Officer for implementation of the decree in the Revenue Record in their favour, (i.e) to file a suit for ejectment against the defendant-respondent under the Punjab Tenancy Act, as after passing of the decree of pre-emption in favour of the plaintiffs--petitioners, the defendant-respondent either had acquired the status of an illegal occupant or as a tenant under the decree-holder and (iv) to file a suit for possession on the basis of title which he acquired through decree. In a case of Ali Ahmad and another v. Muhammad Fazal and another (PLD 1973 Lahore 207), it has been held that when a decree in a pre-emption suit is passed and payment made, it is only then that the decree becomes one in favour of the pre-emptor and he becomes vested with the property. If the pre- emptor/decree-holder did not apply for execution of the decree within a period prescribed by Article 182 of the Limitation Act, 1908, his right and title to property which he acquired by virtue of the decree for pre-emption is not extinguished. Therefore, the facts of the case Mst. Rehim Noor and others v. Wazir Muhammad and others (PLD 1955 Peshawar 56) referred to by the lower Appellate Court neither attracted to the facts of the present case nor followed by the Division Bench of this Court in Ali Ahmad's case (supra). In the instant case, the lower Appellate Court has not adverted to the above legal aspect of the case, therefore, its judgment and decree cannot be sustained in the eyes of law.
12. For the foregoing reasons, this Civil Revision is accepted and the judgment and decree dated 18-7-1995 passed by the learned Additional District Judge, Chakwal, is set aside and that of the trial Court is restored. There is no order as to costs.