Abdul Qayum Khattak Vs Abu-ul-Hassan & others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

C.R No.204-P/2022.

Abdul Qayum Khattak Vs. Abu-ul-Hassan & others.

Date of hearing 24.12.2025.

Mr. Muhammad Amin Khattak Lachi, Advocate, for the petitioner. Mr. Fida Gul, Advocate, for the respondents.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J:-Mst. Mst. Bilqees Begum (respondent No.3) along with others instituted Civil Suit No.84/1 of 2010 seeking declaration to the effect that they were owners of land comprised in Khasra No.1721, measuring 231 Kanal 09 Marla, and that the defendants had no right, title or interest therein. The suit was contested and dismissed by the learned trial court vide judgment dated 30.07.2013. On appeal, however, the learned appellate court allowed the appeal and decreed the suit on 15.04.2016.Pursuant thereto, the decree- holders initiated execution proceedings for recovery of possession of the decreed property. During execution, the Court Bailiff submitted a report stating that possession had been delivered. The judgment-debtor filed applications seeking stay of proceedings and rejection of the Bailiff’s report. The executing court directed the Patwari and Girdawar to visit the spot and submit a report regarding delivery of possession of Khasra No.1721. Upon receipt of the said report, the execution petition was consigned to record as fully satisfied on 16.03.2017.The present petitioner, who admittedly was not a party to the suit, filed an appeal, which was allowed by the learned appellate court vide order dated 26.02.2020, remanding the matter to the executing court with direction to decide the petitioner’s applications in accordance with law. After remand, the petitioner contended that the Bailiff had failed to demarcate the boundaries and that, under the guise of execution, possession of land comprised in Khasra Nos.1730/1, 1730 and 1702, owned by the petitioner, had been illegally delivered to the decree-holders instead of Khasra No.1721.The executing court dismissed the application vide

order dated 07.04.2021, holding that the petitioner was neither a party to the suit nor the judgment-debtor and that he should approach the appropriate forum for demarcation. The petitioner’s appeal was also dismissed by the learned Additional District Judge-I, Kohat vide order dated 21.10.2021, hence, the present petition.

2.Arguments heard and record perused.

3.POINT FOR DETERMINATION. The core question requiring determination is whether a person, who was not a party to the suit, but alleges dispossession of his property during execution of a decree, is entitled to seek redress before the executing court; and if so, what is the lawful mechanism and remedy available for adjudication of such grievance?

It is undisputed that the petitioner was neither a party to Civil Suit No.84/1 of 2010 nor a judgment-debtor therein. His grievance, however, is that during execution of the decree relating to Khasra No.1721, possession of his land comprised in Khasra Nos.1730/1, 1730 and 1702 was unlawfully delivered to the decree-holders. The legal framework governing such disputes is comprehensively provided under Order XXI Rules 99 to 103 of the Code of Civil Procedure, 1908, which constitute a complete code for adjudication of resistance or dispossession during execution. The provisions of order XXI rule 97 to 101 are mandatory in nature and that the executing court cannot summarily dispose of such objections without conducting a proper inquiry because of the bar of fresh suit. In accordance with rule 99 of Order XXI where a person other than the judgment-debtor alleges dispossession during execution, the executing court is duty-bound to conduct a full inquiry under Order XXI Rules 99 to 101, C.P.C., and decide the matter conclusively. An executing court is competent to adjudicate questions of title, possession and interest raised by a third party under Order XXI Rule 101, and such determination bars a separate suit. Rule 101 expressly mandates that all questions relating to right, title or interest in, or possession of immovable property arising between the parties shall be determined by the executing court itself, while Rule 103 places an explicit bar on the institution of a separate suit. This statutory scheme leaves no discretion with the executing court to relegate the aggrieved person to another forum. The object of Rules 99 to 103 is to avoid multiplicity of litigation and ensure

that disputes arising during execution are finally settled by the executing court itself.

4.FAILURE TO CONDUCT PROPER INQUIRY. In the present case, the petitioner specifically alleged dispossession from Khasra Nos.1730/1, 1730 and 1702. Such an allegation could not have been dismissed without determining whether these Khasra numbers are contiguous to Khasra No.1721 and whether the boundaries were correctly identified at the time of execution. The settled law is that delivery of possession without proper demarcation is legally unsustainable, particularly where boundaries of adjoining Khasra numbers are alleged to have been amalgamated. In disputes involving adjacent Khasra numbers, demarcation in accordance with the revenue record is indispensable for just adjudication. Determination of such controversy necessarily requires examination of the Massive or Latha ( )مساوی يا لهٹاand demarcation under Section 117 of the Land Revenue Act, 1967, or in accordance with Had Shikni Rules.

5.EFFECT OF REMAND ORDER. Notably, in the first round of litigation, the learned appellate court had already directed the executing court to decide the petitioner’s applications in accordance with law. Despite this, the executing court failed to appoint a Local Commissioner or undertake a factual inquiry, thereby frustrating the very purpose of remand. There is no cavil with proposition that failure to comply with the mandate of a remand order constitutes jurisdictional error and vitiates subsequent proceedings. During arguments, learned counsel for both sides fairly conceded that the controversy could only be resolved through appointment of a Local Commissioner for on-spot demarcation.

6.CONCLUSION. In view of the foregoing discussion, the impugned orders dated 07.04.2021 and 21.10.2021 suffers from material illegality, misapplication of law, and failure to exercise jurisdiction vested under Order XXI Rules 99 to 103, C.P.C. The same are, therefore, not sustainable. Accordingly, the petition is allowed, the impugned orders are set aside, and the matter is remanded to the learned executing court with the following directions:

i. The executing court shall appoint a Civil Practitioner as Local Commissioner.

ii. The Local Commissioner shall visit the spot, demarcate the boundaries of Khasra No.1721, and determine whether

possession was delivered strictly from the decreed Khasra number or from any adjacent Khasra number, if so, to what extent.

iii. The fee of the Local Commissioner shall be borne by the petitioner.

iv. Upon receipt of the report, the executing court shall decide the petitioner’s applications strictly in accordance with law, either by dismissing them or by ordering restoration of possession, if warranted.

Parties shall appear before Senior Civil Judge (Judicial) on 17.01.2026.There shall be no order as to costs. Announced.

J UD G E

Haider Shah, SSS (SB) Hon’ble Mr. Justice Muhammad Naeem Anwar.