Israr Ahmad Vs Razia Begum etc.

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P No.5511-P of 2026.

Israr Ahmad Vs. Razia Begum etc.

Date of hearing 22.09.2026.

Mr. Ghulam Muhammad Saleh, Advocate, for the petitioner. Mr. Muhammad Shahryar Iqbal Khattak, Advocate, for the respondents.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - The judgment & order dated 01.04.2026, passed by the learned Additional District Judge-V, Nowshera, has been assailed by the petitioners through the instant civil revision petition. Through the impugned judgment, the civil revision petition filed by respondent No.1 was allowed, and the order dated 21.12.2024, passed by the learned executing Court/Civil Judge-VI, Nowshera, whereby her objections to the report of the local commission had been dismissed, was set aside. Consequently, the learned revisional Court directed the executing Court to appoint a local commission for fresh demarcation of the disputed property and, upon receipt of the report, to proceed with the execution of the decree passed in Civil Suit No.237/1 of 2018 on 21.01.2021, in accordance with law. The controversy, therefore, concerns the legality of the direction for fresh demarcation during execution proceedings, particularly in view of the settled principle that an executing Court cannot travel beyond or go behind the decree sought to be executed.

2.The chequered history of the litigation, necessary for the proper appreciation of the controversy, is that respondent No.1, Razia Begum, instituted Civil Suit No.337/1 of 2018 on 14.06.2018, seeking a decree for declaration to the effect that she

was the owner of land measuring 04 Kanals and 10 Marla, forming part of Khasra No.2005, out of the total area of 24 Kanals and 09 Marla situated in the revenue estate of Azakhel Payan, Tehsil and District Nowshera. She asserted that the denial of her rights by the defendants, including the present petitioners, was unlawful, unjustified, and contrary to the facts. She also sought a decree of permanent injunction to restrain the defendants from interfering with her proprietary and possessory rights, alienating the disputed property, or raising construction thereon. The claim of respondent No.1 was founded upon Mutation No.4622 dated 02.05.2021, through which she asserted her ownership in Khasra No.2005. According to her, the present petitioners had no right or concern with the said Khasra number, as their ownership pertained to Khasra No.2012. She further alleged that her son, Muhammad Arif, had approached the Dispute Resolution Council (DRC), Tehsil Pabbi, against petitioner No.1, whereupon the matter was decided in her favour. She maintained that the defendants had unlawfully occupied her property, damaged her standing maize crop, and encroached upon the land owned and possessed by her. The suit was contested by the present petitioners through written statements containing various factual and legal objections. Significantly, in paragraph No.3 of their factual objections, they asserted that they were not even in possession of their own land comprised in Khasra No.2012. During the pendency of the suit, Noor Ul Amin Khattak, Advocate, was appointed as a local commission to ascertain whether the defendants had encroached upon Khasra No.2005 and to demarcate the disputed Khasra numbers, namely, Khasra Nos.2005 and 2012, in the presence of the revenue authorities and with reference to the relevant revenue record and Massavi.

Upon visiting the spot, the local commission reported that Khasra Nos.2005 and 2012 were not adjacent to each other and

that another Khasra No.2013, intervened between them, with a distance of approximately 35 Karam (in length) separating the two disputed Khasra numbers. The report further disclosed that construction existed in Khasra Nos.2005 and 2012, whereas a substantial portion of Khasra No.2013 was under cultivation. The local commission also observed that the petitioners had placed construction material in Khasra No.2013 and that an area approximately 35 to 36 feet in width, adjoining Khasra No.2005, was in their possession. However, the report did not conclusively determine the precise extent and location of the alleged encroachment through a complete and reliable measurement of the disputed land. Upon conclusion of the trial, the learned Civil Judge-II, Nowshera, through judgment and decree dated 21.01.2021, decreed the suit only to the extent of permanent injunction, restraining the present petitioners from raising construction in Khasra No.2005. The remaining reliefs sought by respondent No.1, including the declaratory relief, were not granted. The judgment and decree were maintained by the learned appellate Court vide judgment dated 22.02.2022, and the civil revision petition filed against the appellate judgment was dismissed by this Court on 14.04.2022. The decree, therefore, attained finality. Subsequently, the present petitioners, being the judgment-debtors under the decree, themselves initiated execution proceedings. During those proceedings, and pursuant to the directions issued by the learned Additional District Judge- V, Nowshera, on 29.11.2023, the executing Court, vide order dated 25.07.2024, directed Noor Ul Amin Khattak, Advocate, the previously appointed local commission, to visit the spot, identify the limits and boundaries of Khasra No.2005, and place appropriate boundary marks to facilitate the identification of the property covered by the decree. The local commission accordingly visited the spot and submitted its report. Respondent No.1, however, filed objections thereto, which were dismissed by

the learned executing Court through order dated 21.12.2024. While dealing with the execution proceedings, the executing Court directed the petitioners not to interfere with Khasra No.2005. Aggrieved thereby, respondent No.1 approached the learned revisional Court, which allowed her civil revision petition through the impugned judgment dated 01.04.2026 and directed fresh demarcation of the disputed property. Hence, the instant petition.

3.Mr. Ghulam Muhammad Faleh, Advocate, learned counsel for the petitioners, contended that the impugned direction for appointment of a fresh local commission is contrary to the settled principles governing the jurisdiction of an executing Court. Placing reliance upon the judgments reported as 2022 CLC 1719, 2009 SCMR 594, and 2026 SCMR 638, he argued that an executing Court cannot go beyond or behind the decree, particularly when the judgment and decree sought to be executed have attained finality. According to him, the appointment of another local commission would amount to reopening the controversy already adjudicated and would impermissibly alter the scope and effect of the decree. He further maintained that any clarification concerning the boundaries of Khasra No.2005 could be obtained from the local commission that had previously visited the spot and submitted its report. Mr. Sana Ullah, special attorney for the petitioners, supplemented these arguments by asserting that the local commission had already identified and marked the boundaries of Khasra No.2005 during the execution proceedings and that, on the following day, the petitioners had erected permanent boundary marks at the place identified by the commission.

Conversely, Mr. Mohammad Shahryar Iqbal Khattak, Advocate, learned counsel for respondent No.1, contended that although a decree for permanent injunction had been passed, the precise

boundaries and location of the disputed property remained unresolved. He maintained that the construction being raised by the petitioners fell within Khasra No.2005 and, therefore, violated the express terms of the decree. According to him, the learned revisional Court rightly directed fresh demarcation to ascertain the actual location of the disputed construction and to ensure proper implementation of the decree.

4.Arguments heard and record perused.

5.The principal question requiring determination is whether the direction issued by the learned revisional Court for fresh demarcation of the disputed property transgresses the jurisdictional limits of an executing Court or constitutes a lawful and necessary step towards the proper execution of the decree. Resolution of this question requires a distinction between impermissibly going behind or enlarging a decree, on the one hand, and ascertaining the identity, location, and boundaries of the property to which the decree relates, on the other.

6.There can be no cavil with the proposition that an executing Court cannot travel beyond the decree, reopen the merits of the original proceedings, or grant relief that was neither claimed nor awarded by the adjudicating Court. The execution proceedings cannot be converted into a fresh trial of the original suit, nor can the rights and liabilities of the parties, as finally determined by the decree, be altered under the guise of its execution. Equally, however, the executing Court is under an obligation to give effect to the decree in accordance with its terms and is not precluded from undertaking such lawful measures as may be necessary to ascertain the property to which the decree applies, particularly where its precise location or boundaries remain uncertain. In the instant case, the suit instituted by respondent No.1 culminated in a decree of permanent injunction restraining the petitioners from raising construction in

Khasra No.2005. No declaration of ownership was granted in her favour, nor was a decree for possession passed against the petitioners. These limitations are material and must be respected throughout the execution proceedings. The decree cannot be construed as conferring upon respondent No.1 any relief beyond the injunction expressly granted by the Court. Nevertheless, the absence of a declaratory decree or a decree for possession does not, by itself, dispense with the necessity of identifying the land to which the injunction relates, particularly where the parties dispute whether the construction in question falls within the specified Khasra number. A perusal of the record reveals that the controversy concerning the precise location and boundaries of Khasra No.2005 was not conclusively resolved during the original proceedings. Indeed, the report of the local commission appointed during the pendency of the suit disclosed that Khasra Nos.2005 and 2012 were not contiguous, as Khasra No.2013 intervened between them. The report also referred to construction in the disputed area and the possession of a strip of land adjoining Khasra No.2005 by the petitioners. However, the precise location and extent of the alleged encroachment were not established through a comprehensive demarcation of the entire disputed area.

7.More importantly, notwithstanding the observations contained in the commission's report, the trial Court did not grant a decree for possession or adjudicate upon the precise extent of any encroachment by the petitioners. The decree was confined to restraining them from raising construction in Khasra No.2005. Thus, while the injunction has attained finality, the question whether the construction raised by the petitioners falls within Khasra No.2005 or within the intervening Khasra No.2013, or any part of Khasra No.2012, cannot be treated as having been conclusively determined merely because the decree has become final. The distinction is fundamental. The finality of

the decree forecloses a fresh adjudication of the reliefs already determined, but it does not dispense with the identification of the property necessary for its lawful implementation. An executing Court cannot enlarge the injunction to cover land outside Khasra No.2005; conversely, it cannot effectively enforce the injunction without ascertaining whether the construction complained of lies within the land protected by the decree. The contention of learned counsel for the petitioners that the appointment of a fresh local commission would amount to going behind the decree, therefore, cannot be accepted as an absolute proposition. The legality of such an appointment depends upon its purpose and scope. If the commission were appointed to reconsider the question of ownership, reopen the merits of the original suit, determine rights not adjudicated by the trial Court, or enlarge the relief granted under the decree, such an exercise would undoubtedly exceed the permissible limits of execution jurisdiction. However, where the commission is appointed solely to identify the boundaries of Khasra No.2005, ascertain the location of the disputed construction with reference to the relevant revenue record, and assist the executing Court in determining whether the conduct complained of falls within the prohibition imposed by the decree, the exercise is directed towards implementation rather than alteration of the decree.

8.The circumstances surrounding the execution proceedings further support the direction issued by the learned revisional Court. It is an admitted position that the petitioners themselves initiated the execution proceedings, notwithstanding the fact that they were judgment-debtors under the decree. When confronted with this aspect, learned counsel for the petitioners explained that the purpose of filing the execution application was to obtain clarification concerning the location of the construction raised by the petitioners, so that the decree- holder might not subsequently claim the disputed construction

or the land beneath it under the cover of the decree. This explanation, considered in conjunction with the rival claims of the parties, demonstrates that the precise location of the construction in relation to the relevant Khasra numbers remains a matter of practical significance requiring objective determination. It is also apparent from the record that, during the execution proceedings, the local commission again visited the spot pursuant to the order dated 25.07.2024. Nevertheless, the controversy concerning the boundaries of the disputed Khasra number was not brought to a satisfactory conclusion. The record does not establish that Khasra No.2005 was comprehensively measured and demarcated on all sides, with its boundaries correlated to the relevant revenue record and the adjoining Khasra numbers. In the absence of such an exercise, the mere identification of certain points or the placement of boundary marks at the spot cannot, by itself, conclusively establish whether the construction complained of falls within the land covered by the injunction. The assertion of the petitioners' special attorney that permanent boundaries were erected after the local commission had visited the spot does not resolve this difficulty. The erection of boundary marks by a party, even if undertaken in the presence of or following the identification made by a local commission, cannot substitute for a complete and objectively verifiable demarcation where the accuracy and location of those boundaries are themselves disputed. The purpose of demarcation is not merely to place physical markers at the spot; it is to identify the limits of the relevant land through a process capable of verification against the revenue record and of addressing the competing claims of the parties. The objection raised by respondent No.1 to the report of the local commission, coupled with the petitioners' own assertion concerning the placement of permanent boundaries, demonstrates that the earlier exercise did not bring the dispute to a conclusive end. The

parties continue to dispute the location of the construction in relation to Khasra No.2005 and the intervening Khasra No.2013. Unless the entire relevant area is properly measured and the boundaries are determined with reference to the Massavi, field book, and other relevant revenue record, where available, the controversy cannot be resolved merely on the basis of competing assertions or the placement of boundary marks by the parties. In these circumstances, the appointment of a local commission for fresh demarcation is neither inherently inconsistent with the decree nor beyond the scope of the executing Court's jurisdiction. Rather, it constitutes a procedural measure intended to furnish the executing Court with the objective material necessary to determine whether the decree is being violated. The exercise would also protect the petitioners against any attempt to extend the injunction to land not covered by the decree, while enabling respondent No.1 to seek its enforcement if the construction is found to fall within Khasra No.2005. Proper demarcation, therefore, serves the interests of both parties and advances the ends of justice.

9.In addition, it must, however, be made clear that the local commission's mandate shall remain confined to demarcation and identification of the property. The commission shall not determine title, adjudicate upon possession, pronounce upon any alleged encroachment as an independent substantive claim, or recommend any relief beyond the scope of the decree. Its report shall be prepared on the basis of the relevant revenue record and a proper measurement of the disputed Khasra number, including its boundaries vis-à-vis the adjoining and intervening Khasra numbers. The parties shall be afforded an opportunity to participate in the demarcation proceedings and to point out the relevant revenue particulars. Upon receipt of the report, the executing Court shall consider any objections raised by the parties, evaluate the report in accordance with law, and

determine whether the construction in question falls within the area protected by the decree. Any such determination shall remain strictly within the terms of the decree and shall not result in the grant of any relief that was declined or not awarded in the original suit.

10.For the foregoing reasons, this Court finds that the learned revisional Court has not enlarged, varied, or reopened the decree; rather, it has directed a fresh demarcation to ascertain the precise boundaries and location of the property to which the decree relates. Such a direction, in the peculiar circumstances of the case, is necessary for the effective and lawful execution of the decree and cannot be characterized as an exercise beyond the jurisdiction of the executing Court. The case law relied upon by learned counsel for the petitioners, laying down the principle that an executing Court cannot go behind or beyond the decree, do not advance their case, as the impugned direction does not authorize any reconsideration of the adjudicated rights of the parties. The said principle remains fully applicable, but it does not prohibit the ascertainment of the identity and boundaries of the property necessary to implement the decree. No illegality, material irregularity, or jurisdictional defect has, therefore, been demonstrated in the impugned judgment warranting interference by this Court in its revisional jurisdiction. Consequently, the instant civil revision petition, being devoid of merit, is dismissed. The learned executing Court shall proceed with the demarcation and execution proceedings in the manner indicated above and bring the matter to its logical conclusion, expeditiously and in accordance with law. There shall be no order as to costs. Announced.

22.09.2026. J UD G E

Abdul Wahid, JSS (SB) Hon’ble Mr. Justice Muhammad Naeem Anwar.