Qaisar Khan & others Vs Hamshaid & others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P No.6141-P/2025.

Qaiser Khan & others Vs. Hamshaid & others.

Date of hearing 06.02.2026.

Mr. Abdul Sattar Khan, Advocate, for the petitioners. Nemo for the respondents (being in motion).

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - Judgement/order of learned Additional District Judge-X, Mardan dated 20.06.2025 has been questioned by the petitioners through which, their revision petition against the order of learned Civil Judge-I, Mardan dated 03.03.2025 rejecting the objections in execution petition of decree in Suit No.36/1, were dismissed.

2.Requisite facts for determination of the issue pertaining to objections submitted by the petitioners in execution are that Muhammad Zaman his brother and sister, the legal heirs of Muarifat Shah had filed a Suit No. 35/1-B on 23.01.1974 against Hazrat Jamal, Bakht Jamal sons of Mishaal for recovery of possession of property bearing Khasra Nos. 2446 and 2449 of the revenue estate of Mechi Tehsil and District Mardan on the ground that defendants were their tenants for payment of 1/4th share of produce but had refused from their obligation of the payment of produce for the last 9/10 years and when a suit was filed for their ejectment before competent forum, they have questioned their title. Consequently, their Suit No. 47/1 was dismissed on 18.12.1973 from the court of Collector/Afsar-e- Mall and since they are the owners of the property with which, defendants have got no concern; thus, their possession is unjustified and since rest of the co-sharers have not denied their rights, as such, they were not necessary party. Defendants of the suit appeared and on 14.03.1974, a compromise was submitted before the court to the effect that defendants are the owners of the property with which, they had got no concern and that their suit may be dismissed. Statement

of Hazrat Jamal, Bakht Jamal (defendants) and Muhammad Zaman, Faqir Zaman alongwith the counsel for the plaintiffs was recorded and learned Senior Civil Judge, Mardan on 14.03.1974 dismissed the suit. On 17.03.1985, an application under Section 12(2) CPC was filed, questioning the judgement and decree in Suit No. 35/1-B on the ground that the defendants of Suit No. 35/1-B were their tenants but had got recorded themselves as ()بلا لگان بوجہ قبضہ, which is inconsistent to their status, their claim was unjustified because they were nothing more than tenant at will for which, the suit was filed against them and during pending adjudication of their suit bearing No. 227/1, they had got the information of the decree in Suit No. 35/1-B; hence, the application under Section 12(2) CPC.

3.The application was allowed on 29.07.1990 by Senior Civil Judge, Mardan. Plaintiffs of Suit No. 35/1-B were directed to submit the amended plaint by arraying the applicants (Karim Khan & others) as party under Order I Rule 18 of the Code of Civil Procedure, 1908, which order was challenged through Civil Appeal No.49/14 of 1990 by the defendants of Suit No. 35/1-B, however, their appeal was dismissed by District Judge, Mardan on 02.01.1991. Civil Revision No.80/1991 was filed before this Court, which too was dismissed in limine on 02.11.1991. The applicants of application under Section 12(2) CPC whose application was allowed and plaintiffs of Suit No. 35/1-B were directed to file amended plaint, had submitted amended plaint being representative of the owners of Kandi Boki of the revenue estate of Mechi against defendants of Suit No. 35/1-B. This Suit was resisted by the defendants, and on 21.07.1993, it was decreed for recovery of possession against defendants. Being aggrieved, they preferred an Appeal No.89/13 of 1993, which succeeded and the matter was remanded to the trial court vide judgement dated 19.03.1994. After remand, the learned Civil Judge vide judgement and decree dated 26.09.2001 decreed the suit as prayed for, which order was challenged through Civil Appeal No. 23/13 of 2001 and was dismissed on 25.10.2003. Civil Revision No. 07/2004 was filed before this Court, which was allowed on 21.04.2006, judgement of the learned District Judge was set aside and case was remanded to the District Judge for decision a fresh in

accordance with law. Learned Additional District Judge-IV, Mardan after remand dismissed the appeal on 03.02.2009, which order was challenged by the defendants before this Court through Civil Revision No. 376-P/2009 and on 22.04.2019, Revision Petition was partially allowed on the following term: - “Therefore, keeping in view the afore- stated reasons this Civil Revision Petition is partially accepted to the extent that decree of ownership is granted in favour of petitioners in regard to share of original plaintiffs of Suit No.35/1-B namely Sherin Zaman, Laiq Zaman, Dil Zaman, Shafiq Zaman sons of Mohammed Zaman, Anwar Zaman son of Faqir Zaman, if they were found co-sharers in the suit property.”

4.The execution petition was pending adjudication before Executing Court and the decree holders were seeking recovery of possession of property bearing Khasra Nos. 2646 and 2649 wherein, the petitioners filed their objection petition on the ground that they are cultivating the property and are in possession as Ghair Dakhil kar ( )غير داخلکارbut were not arrayed in the suit by the decree holders/plaintiffs and that Civil Court had got no jurisdiction, as such, the decree was result of concealment of fact and collusion inter-se between plaintiffs and defendants, which application was resisted by the decree holders. The present controversy emanates from inception of the objection petition in execution of the decree in Suit No. 79/1 of 1989, which was later on numbered as 36/1. The application was dismissed by the learned Executing Court on 14.10.2021 against which, the appeal was allowed by Additional District Judge-IV, Mardan and the matter was remanded to the Executing Court vide judgement dated 14.02.2022 for consideration of the status of the objectors/petitioners in terms of Order XXI Rule 35 of the Code of Civil Procedure, 1908 where the evidence was recorded and thereafter the learned Civil Judge on 03.03.2025 dismissed the objections against which, Civil Revision was filed, which too was dismissed vide judgement dated 20.06.2025 by Additional District Judge-X, Mardan; hence, the instant petition.

5.Mr. Abdul Sattar Khan, Advocate, learned counsel for the petitioners contended that the case of the applicants falls under the

ambit of Order XXI Rule 35(2) of the Code of Civil Procedure, 1908 as the petitioners were the tenants in the property but the courts below have erred in dismissing their objection petition. He vociferated that the disputed property is Shamilat but neither they nor their landlord were arrayed as a party in the initial suit, and since they were entitled to protect their physical possession through objections and lastly, though the decree could be executed but through transfer of symbolic possession.

6.Arguments heard, record perused.

7.Before addressing the submission of the learned counsel for the petitioners, it would be apt to dilate upon the grounds on which, the objections were submitted in execution of a decree on the strength of which, transfer of physical possession was resisted. Four grounds were taken by the applicants/petitioners in their objections i.e. i) they are Ghair Dakhilkaran/tenants at will and are in possession of the property but were not arrayed as a party in the suit; ii) Civil Court had got no jurisdiction to grant a decree; iii) facts were concealed and decree was the result of misrepresentation of fact; and iv) there was a collusion between the parties, as such, the decree is inoperative against their rights. The grounds taken in the objections available at page No.108 reflects the grievance of the petitioners and apparently discloses as if it was an application under Section 12(2) CPC because the validity, correctness and legality of an order, judgement and decree could only be questioned on the ground of fraud, misrepresentation of fact and want of jurisdiction, all these grounds were taken in the application/objections submitted in execution by the petitioners. The objections were never filed to resist the transfer of actual possession.

8.The first limb of argument advanced by learned counsel for the petitioners is that, upon acceptance of the initial application under Section 12(2) CPC, the plaintiffs were obliged to institute proceedings afresh by arraying the successful applicants as parties; instead, the applicants themselves instituted an amended plaint titled “Hamshaid & others v. Muhammad Jamal.” This objection, however, is not res integra. The very issue was examined by this Court in C.R. No. 07/2004, wherein it was categorically held that

non-submission of an amended plaint by the original plaintiffs was inconsequential once a fresh suit had been instituted against the then defendants. The procedural irregularity, if any, did not vitiate the proceedings, particularly when substantive adjudication had taken place in accordance with law. The second contention of learned counsel is that the petitioners, being tenants at will and allegedly in possession of the suit property, are entitled to the protection envisaged under Order XXI Rule 35(2) CPC, and therefore cannot be physically dispossessed in execution. In support thereof, evidence was led before the Executing Court. Exhibit PW-2/6, an extract from the Jamabandi, reflects the names of Khushal and Dost Muhammad, sons of Painda Khan, as Ghair Dakhilkar in the column of cultivation pertaining to Khasra Nos. 2446 and 2449. It is asserted that Khushal was the predecessor-in-interest of the petitioners, and reliance is also placed upon an entry in the column of lagan in the periodical record (“bila lagan batasawar malikiyat”), exhibited as PW-2/10. A pedigree table was further produced to demonstrate lineage from Painda Khan through Khushal to Aimal Khan, and ultimately to the present petitioners. However, a critical scrutiny of the record reveals that these entries, at best, establish a claim of possession in the revenue record; they do not, ipso facto, prove a lawful tenancy or a subsisting jural relationship with the true owner. The expression Ghair dakhil kar in the column of cultivation is merely indicative of possession and does not confer proprietary or legally protected tenancy rights, particularly in the absence of proof of induction by the owner or recognition of tenancy by payment of rent or acknowledgment of title. Similarly, an entry in the lagan column, without corroborative evidence of a contractual or statutory tenancy, cannot elevate possession to the status of a legally enforceable right.

9.It is trite law that Order XXI Rule 35(2) CPC applies where a decree for joint possession of immovable property is to be executed, and in such circumstances execution is effected symbolically, by affixing a copy of the warrant at a conspicuous place and proclaiming the substance of the decree through customary mode. The provision presupposes the existence of a legally cognizable joint possession. It does not extend protection to persons

whose possession is neither joint with nor derivative from a recognized title holder, nor to those unable to establish an independent right in the property. Therefore, unless the petitioners demonstrate that their possession is legally referable either to a co- ownership arrangement or to a valid tenancy recognized by the decree-holder or judgment-debtor, mere reliance on revenue entries and genealogical assertions would not suffice to bring their case within the protective ambit of Order XXI Rule 35(2) CPC.

10.In so far as the first objection raised by the learned counsel for the petitioners that after acceptance of initial application filed under Section 12(2) CPC, the plaintiffs did not file the suit by arraying the applicants as party rather the applicants whose application was allowed, have approached to the court by filing an amended plaint titled “Hamshaid & others Vs. Muhammad Jamal” which objection was considered by this Court in C.R No.07/2004 when it was contended before this Court that the failure of the plaintiffs in submitting the amended plaint is of no consequence when the fresh suit was filed against the then defendants. Second contention of the learned counsel for the petitioners is that since the petitioners/applicants are in possession being tenant at will, as such, their relief is covered under Order XXI Rule 35(2) CPC. In the objections of the petitioners, evidence was recorded. Ex.PW-2/6 is an extract from the Jamabandi reflecting Khushal, Dost Muhammad sons of Painda Khan as Ghair Dakhil kar in column of cultivation of property bearing Khasra Nos. 2446 and 2449. It is the contention of the petitioners that Khushal was their predecessor in interest and that there is an entry in the column of lagan of periodical record ()بلا لگان بتصورملکيت, which was placed on file as Ex. PW-2/10. They also contended that Aimal Khan was their predecessor, who was the son of Khushal and Khushal was the son of Painda Khan. This pedigree table was also placed on file during evidence and was annexed with the instant petition at page No.161. Undisputedly, the actual possession of the joint property is subject to the provision of Order XXI Rule 35(2) CPC according to which a decree for joint possession of immovable property, such shall be executed by affixing a copy of the warrant in some conspicuous place on the property and

proclaiming the beat of drum, or other customary mode, at some convenient place, the substance of the decree, and the compliance of delivery of possession shall be in the form of symbolic possession.

11.Although the primary object of Order XXI Rule 35 CPC is to regulate delivery of possession in execution of a decree for immovable property, including cases of joint possession—its protective sweep, in a limited sense, may extend to a tenant in occupation. However, such extension is neither absolute nor independent; it is strictly derivative and circumscribed by the title and interest of the landlord under whom the tenant claims. A tenant’s right to retain possession is not autonomous but flows from, and remains subservient to, the subsisting title of the landlord. A tenant, acting independently and without reference to the landlord’s title, cannot invoke Order XXI Rules 97 or 98 CPC to resist execution of a decree for possession, nor can he seek shelter under sub-rule (2) of Rule 35. The statutory protection against actual dispossession of a tenant is specifically contemplated under Order XXI Rule 36 CPC, which provides that where a decree directs delivery of immovable property in the lawful occupation of a tenant or other person not bound by the decree to vacate, delivery shall be effected symbolically, by affixing a copy of the warrant at a conspicuous place on the property and proclaiming the substance of the decree through customary modes. Even this protection, however, remains conditional upon the tenant’s lawful and permissive possession traceable to the landlord’s title. In Ratan Lal Jain v. Uma Shankar Vyas (AIR 2000 SC 804), the august Supreme Court of India held that where tenants were inducted into possession with the consent of the owners and were authorized to construct shops and induct sub- tenants within the stipulated lease period, the sub-tenants’ possession was derivative of and traceable to the landlord’s consent. Consequently, such occupants, not being persons bound by the decree, were entitled only to symbolic dispossession in execution.

12.The ratio decidendi of the said judgment reinforces the principle that the benefit of Rule 36 is available solely to a tenant whose possession is lawful and referable to the landlord’s subsisting title. Where an alleged tenant seeks to protect possession devoid of

any juridical nexus with the landlord, or in derogation of the landlord’s title, no protection can be extended under Rule 36 CPC. In the instant matter, the petitioner’s case does not fall within the ambit of Order XXI Rule 35(2) CPC, nor does it attract the protection envisaged under Rule 36 CPC, as the claimed possession lacks the requisite legal foundation traceable to the landlord’s title.

13.Be that as it may, the revenue record reflects Khushal as a tenant under one Muhammad Zaman. The latter had earlier instituted a suit against Hazrat Jamal and Bakht Jamal, sons of Mashal Khan, who, along with Khushal and Dost Muhammad son of Painda Khan, were recorded in possession as Ghair dakhil kar. The grievance of Muhammad Zaman in that suit was that his tenants had defaulted in payment of rent and had further repudiated his title as owner. Although the matter was ostensibly resolved through a compromise decree, the same was subsequently set aside upon acceptance of an application under Section 12(2) CPC, thereby rendering the compromise ineffective in law. Significantly, the present petitioners have neither disclosed nor established any definitive jural relationship of landlord and tenant. At no stage in their objections, filed ostensibly to resist execution, did they identify any person as their landlord, nor did they unequivocally assert derivative possession under a legally cognizable tenancy. Rather, their objections were framed in the nature of an application under Section 12(2) CPC, yet they consciously refrained from pursuing that remedy in its true legal character.

14.It is settled law that an entry in the column of cultivation in the revenue record, showing a person as Ghair dakhil kar, is at best indicative of possession and does not, by itself, confer or establish a lawful tenancy or juridical entitlement to retain possession against the true owner. Such an entry cannot supplant proof of a valid and subsisting tenancy, particularly where the alleged occupant fails to demonstrate the source and legality of his possession. The decree for possession was passed against the recorded defendants, who neither effectively resisted the claim nor challenged the decree in accordance with law. The petitioners, who were not parties to the suit and whose possession has not been shown to be independent or legally

protected, cannot now be permitted to assail the decree collaterally. The circumstances, coupled with the shifting and inconsistent stance adopted by the petitioners in their objections, lend credence to the inference that they are acting in concert with the judgment-debtors of Suit No. 36/1 in an attempt to frustrate execution. In the absence of a demonstrated legal nexus, independent title, or lawful derivative possession, the petitioners lack locus standi to question the decree or to resist delivery of possession on vague allegations of collusion or misrepresentation inter se the original parties, particularly when their own pleadings betray inconsistency and absence of a coherent legal foundation.

15.This petition has got no substance, which is hereby dismissed in limine.

Announced.

J UD G E

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