Azmat Khan & others Vs The Government of KP through its Secretary Revenue Civil Secretariat & others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P No.744-P/2026 Azmat Khan & others Vs. The Government of Khyber Pakhtunkhwa through its Secretary Revenue Civil Secretariat & others.

Date of hearing 04.03.2026.

Mr. Arshad Jamal Qureshi, Advocate, for the petitioners. Mr. Jawad Ali, AAG, for the respondents.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - The petitioners are aggrieved by the order passed by the Tehsildar, Dag Besud, Tehsil Pabbi, District Nowshera, whereby their application seeking incorporation of their names in the revenue record on the basis of an alleged decree passed in Civil Suit No. 481/1 dated 20.09.1987 was declined for lack of jurisdiction.

2.The facts forming the background of the instant petition are that, allegedly, Mst. Hukam Jan instituted a suit for declaration bearing No. 481/1 on 20.10.1985, seeking a declaration that she was the owner in possession of land measuring 12 Kanal 10 Marla comprised in Khasra No. 2745, as reflected in the Jamabandi for the year 1963–64, situated in the revenue estate of Dag Besud, Tehsil Nowshera. It was asserted that the defendants had no right, title or interest in the said property. Alongside the relief of declaration, a decree for perpetual injunction was also sought to restrain the defendants from alienating the property on the basis of alleged incorrect entries in the revenue record. The said suit remained pending adjudication before the learned trial court, during which the parties reportedly entered into a compromise. On the basis of the said compromise, the suit was decreed on 20.09.1987 to the extent of 03 Kanal of land, while the remaining relief claimed in the suit was declined. Subsequently, in the year 2022, the present petitioners, claiming themselves to be the legal heirs of Mst. Hukam Jan, instituted another suit bearing No. 185/1 seeking a declaration that they were owners in possession of land comprised in Khasra No. 2745 situated in the revenue estate of Dag Besud, on the strength of the aforementioned decree passed in

Civil Suit No. 481/1 dated 20.09.1987. It was further alleged that the entries in the revenue record in favour of the private defendants were illegal, contrary to the facts and liable to be rectified. The suit was contested by the defendants, and the parties were directed to lead their respective evidence. Upon completion of the evidentiary proceedings, the learned Civil Judge-VI, Nowshera, vide judgment and decree dated 24.04.2023, dismissed the suit on the ground that the petitioners had failed to prove their claim. The appeal preferred by the petitioners against the said judgment also met the same fate. Thereafter, the petitioners approached this Court by filing Civil Revision No. 248-P/2025, which was dismissed as withdrawn with the following order:

“After arguing the case at a certain length, learned counsel for the petitioner stated at the bar that he would not press the instant revision petition rather would seek its withdrawal in order to pursue his remedy before proper revenue hierarchy. The request of counsel for petitioner seems genuine. This petition is dismissed as withdrawn in order to seek his remedy before appropriate revenue hierarchy. Order accordingly.”

3.Having failed to obtain the desired relief from the civil courts, the petitioners subsequently filed an application before the Deputy Commissioner seeking attestation of a mutation in their favour on the basis of the alleged decree. The said application was declined, which has ultimately led to the filing of the present petition.

4.Arguments heard, record perused.

5.It was the case of the petitioners in Civil Suit No. 185/1 that, being the legal heirs of Mst. Hukam Jan, they were owners in possession of 03 Kanal out of property bearing Khasra No. 2745 measuring 12 Kanal 10 Marla situated in the revenue estate of Dag Besud, District Nowshera. Their claim was founded upon an alleged judgment and decree dated 20.09.1987 passed in Civil Suit No. 481/1 titled “Mst. Hukam Jan vs. Mst. Azmat Bibi” by the Court of Civil Judge, Nowshera. It was further pleaded that the entries existing in favour of the defendants in the revenue record were illegal, collusive, mala fide and without lawful authority, therefore liable to be corrected. Alongside the relief of declaration, the petitioners also sought a decree for perpetual injunction restraining the defendants from alienating the suit property. The

suit was contested by the defendants, and from the divergent pleadings of the parties, the learned trial court framed several issues, whereof issues Nos. 3 and 4 were material for the present controversy, which read as under:

“3. Whether plaintiffs are owners in Khasra No.2745 to the extent of their shari shares on the basis of judgement and decree dated 20.09.1987?

4.Whether defendants are owners in possession in Khasra No.2745 to the extent of 02-19 Marla as per revenue record?” Both the aforesaid issues were decided against the plaintiffs/petitioners and, consequently, their suit was dismissed. The appeal preferred against the said judgment also met the same fate, and although a civil revision was initially filed before this Court, the same was ultimately dismissed as withdrawn. It is pertinent to note that the very existence of the alleged decree dated 20.09.1987 was specifically disputed by the respondents. In such circumstances, the burden squarely lay upon the petitioners/plaintiffs to establish the existence and authenticity of the said decree through cogent, direct and convincing evidence. However, they failed to discharge this burden. Once the petitioners claimed to be beneficiaries of a judicial decree, it was incumbent upon them not only to prove the existence of such decree but also to demonstrate its legal enforceability. Proof of the decree was the foundational requirement before any question regarding its execution or implementation could arise. Had any decree actually been passed in favour of the petitioners or their predecessor-in- interest in the year 1987, the appropriate course available under the law was to seek its execution before the competent forum within the limitation prescribed for execution of decrees. In the above backdrop, two fundamental questions arise for determination in relation to the relief sought by the petitioners: A) Whether any decree was ever passed in favour of petitioner or their predecessor in interest? and B) Whether the execution of decree could be directed through issuance of writ?

Insofar as the first question is concerned, the petitioners failed to prove the existence of the alleged decree through any credible or

admissible evidence. This failure resulted in the dismissal of their Civil Suit No. 185/1 by the learned Civil Judge vide judgment and decree dated 24.06.2023, which was subsequently affirmed by the learned Additional District Judge, Nowshera, through judgment dated 05.12.2024. It is also significant to mention that the civil revision filed thereafter was dismissed as not pressed. Accordingly, the first question (A) is answered in the negative and against the petitioners, as the existence of any decree in their favour has not been established on record. Consequently, in the absence of proof of such decree, the question of its enforcement through writ jurisdiction or otherwise does not arise.

6.It is an admitted position that the petitioners have failed to establish the very existence of the alleged decree passed in Civil Suit No. 481/1 dated 20.09.1987, despite instituting a subsequent suit bearing No. 185/1, which too was dismissed by the learned Civil Judge on 24.06.2023. Even otherwise, assuming for the sake of argument that such a decree had been passed, the petitioners were under a legal obligation to seek its execution within the period of limitation prescribed by law. There is no cavil to the settled proposition that the first application for execution of a decree is governed by Article 181 of the Limitation Act, 1908, which prescribes a limitation period of three years. Since the alleged decree in Civil Suit No. 481/1 is stated to have been passed on 20.09.1987, the petitioners could have moved an execution application within three years from the date of the decree. In such circumstances, the question of the application of section 48 of the Code of Civil Procedure would not arise at the initial stage, as the said provision becomes relevant only with respect to subsequent applications for execution after the first execution petition has been filed within the prescribed limitation. This legal position has been authoritatively enunciated by the august Supreme Court in Mahboob Khan vs. Hassan Khan Durrani (PLD 1990 Supreme Court 778) wherein it was held that the first application for execution of a decree is governed by the residuary Article 181 of the Limitation Act, while subsequent applications may fall within the extended period contemplated under Section 48, C.P.C. The

Court further clarified that if no execution application is filed within the limitation period prescribed under Article 181, any execution application filed thereafter would be barred by time and the decree- holder cannot seek the benefit of the extended period contemplated under section 48, C.P.C. The essence of the principle laid down is that the extended limitation contemplated under section 48, C.P.C. becomes available only when the decree- holder has first invoked the execution jurisdiction within the limitation period prescribed by Article 181. If the decree-holder fails to file even the first execution application within the prescribed period, the right to execute the decree itself becomes extinguished. In the present case, the petitioners admittedly did not avail themselves of the remedy provided under the law for execution of the alleged decree, nor did they take any steps for the incorporation of their names in the revenue record on the basis of such decree. The petitioners/decree-holders, therefore, remained dormant for decades without initiating execution proceedings. Such prolonged inaction clearly renders any attempt to enforce the alleged decree hopelessly barred by limitation and legally untenable.

7.Turning to the submission of Mr. Arshad Jamal Qureshi, Advocate, learned counsel for the petitioners, it was contended that the revenue authorities were under a legal obligation to incorporate the name of the decree-holder in the revenue record and, consequently, the names of the present petitioners as his successors. In support of this contention, reliance was placed upon the principle laid down in Ali Ahmad vs. Muhammad Fazal (1972 SCMR 322), wherein it was observed that incorporation of the name of the decree-holder in the revenue record may fall within the duties of the Revenue Officer. However, the reliance placed upon the aforesaid precedent is misconceived and misplaced in the circumstances of the present case. The judgment relied upon pertains to a decree passed in a pre-emption suit, which is of a distinct and peculiar nature, fundamentally different from a decree for declaration of title. In this regard, reference may usefully be made to the judgment of the august Supreme Court in Maulvi Abdul Qayum v. Syed Ali Asghar Shah (1992 SCMR 241), wherein

the Court elaborated upon the peculiar character of a decree in a pre-emption suit. It was held that under Order XX Rule 14, C.P.C., the title to the property vests in the decree-holder upon deposit of the purchase money in Court along with the costs, if any. Consequently, once the statutory requirements of Rule 14 are fulfilled, the successful pre-emptor steps into the shoes of the vendee and becomes the owner of the property, irrespective of whether actual possession has been delivered or not. The Supreme Court further observed that a decree in a pre-emption suit operates as a decree of substitution, whereby the successful pre-emptor is substituted in place of the vendee. The nature of this right was succinctly explained in the celebrated decision of Gobind Dayal v. Inayatullah (1885) ILR 7 All 775 (FB)), wherein it was observed that the right of pre-emption is not a right of repurchase either from the vendor or the vendee, nor does it involve the creation of a new contract of sale. Rather, it is simply a right of substitution, enabling the pre-emptor to stand in the shoes of the vendee with respect to all the rights and obligations arising from the sale through which the vendee derived title. Thus, the right of pre-emption being merely a right of substitution, the successful pre-emptor acquires exactly the same title which the vendee possessed, and the decree itself results in the transfer of that title upon compliance with the statutory requirements.

8.The legal position emerging from the above discussion clearly demonstrates that a decree of substitution in a pre-emption suit and a decree for declaration of title operate in entirely different legal fields. A declaratory decree merely recognizes or affirms an existing right and ordinarily requires further proceedings for its enforcement, whereas a decree in a pre-emption suit results in substitution of the decree-holder in place of the vendee upon fulfillment of statutory conditions. Therefore, the precedent relied upon by learned counsel for the petitioners, being rendered in the context of a pre-emption decree involving the right of substitution, is clearly distinguishable and cannot be pressed into service in the present case, which relates to an alleged declaratory decree. Consequently, the argument that the revenue authorities were

under an automatic obligation to incorporate the names of the petitioners in the revenue record on the basis of such alleged decree is devoid of legal substance.

9.Moreover, the petitioners appear to be seeking, through an indirect course, the execution or implementation of an alleged decree said to have been passed in the year 1987. It is an admitted position that no execution proceedings were ever initiated by the petitioners or their predecessor-in-interest from the date of the alleged decree until the year 2026. Such prolonged inaction is not only contrary to the provisions of the Limitation Act, 1908, but also disentitles the petitioners from invoking the jurisdiction of this Court for the enforcement of a decree which they themselves failed to pursue through the legally prescribed mechanism. In effect, the present attempt amounts to seeking execution of the alleged decree through collateral or indirect proceedings, which is legally impermissible. It is a well-settled principle of law that what cannot be done directly cannot be permitted to be achieved indirectly. A party who has failed to avail the statutory remedy within the limitation period cannot circumvent the bar of limitation by resorting to alternative or indirect proceedings. In this regard, reliance may be placed on the authoritative pronouncements of the august Supreme Court in Federal Board of Revenue vs. Dewan Salman Fider Ltd. (2023 SCMR 1871) and Haji Muhammad Boota v. Member (Revenue), Board of Revenue Punjab (PLD 2003 SC 979) wherein it has been unequivocally held that where the law prescribes a specific procedure for obtaining a particular relief, the same must be pursued in the manner provided by law, and a party cannot be allowed to achieve the same result through an indirect or collateral mode which the law does not sanction. Therefore, the petitioners, having failed to institute execution proceedings within the prescribed period and having remained dormant for decades, cannot now be permitted to indirectly seek enforcement of the alleged decree through the present proceedings. Such an attempt is clearly hit by the doctrine that what is not permissible directly cannot be achieved indirectly, and is therefore legally unsustainable.

10.The instant petition being bereft of merit is hereby dismissed in limine.

Announced.

JUDGE

JUDGE

Haider Shah, SSS (DB) Hon’ble Mr. Justice Muhammad Naeem Anwar & Hon’ble Mr. Justice Wiqar Ahmad.