Samiullah & others VS Mistri Umara khan

I

J,

K

'lulanunt Sfuet

PESHAWAR HIGH COURT, MINGORA BENCH (DAR-UL-QAZA),

SWAT.

JUDICIAL DEPARTMENT

C.R.No.24l-M12016.

JUDQMENZ

Date of hearing... I 9/02/20 I 8.

Petitioners (Saniullah & others) By Qazi Midrarullah, Advocate Respondent (Mistri Umara Khan) By Mr.Adil Khan Tahirkheli, Advocate.

MTJIIAMMAD IR MAHX'OOZ J:- Through

this single judgment, I shall also dispose of C.R.No.258-lr,f/2016 titled Misri Umara Khan Vs.

Samiullah and others, as both the petitions are the offshoot of one and the same orders.

2.According to the facts as mentioned in the instant petition a suit was filed by respondent on 20.12.1981 with the list of properties annexed as Annexure 'A' was decreed by the leamed trial court on 08.01.1987 and the appeal was also dismissed by learned appellate court which were assailed in civil revision before this court bearing C.R.No.353 of 1987 nq which was partially allowed on 16.02.1994, the concurrent judgments and decrees were set aside and the suit was decreed relying on a deed No.56 dated 04.06.1935 while claim of petitioners about Shamilat

land was dismissed. This order was challenged in civil appeal No.796 of 1994 but the same was dismissed on 05.05.1999 by august Supreme Court of Pakistan.

Defendanr in the said case are not party to the present revision petition as execution petition has been finally satisfied and consigned.

3.Hazrat Umar and L.Rs of Gul Ahmad had also filed a suit in the year 1980 bearing No.2l5ll instituted against present respondent which was adjourned sine die. The properties in dispute were lands known as Mulai, Zargt, Roshangor, Shma and Gadacot. The decree in suit ofrespondent was put to execution, marked as Ex.O.W.l/9 which was finally satisfied on 02.04.2001. On 10.122004

respondenUdecree-holders filed another execution petition regarding property wittrin the boundaries, towards North public path/Noor Muhammad to the South public path, to the West main road alongwith shops and to the East Mohallatr Vatakay alleging to be the part of execution petition No.23l10 but ,%_ possession not delivered and relying on the above mentioned judgments as mentioned h para 5 of the execution petition. In para 6 of the execution petition, it is mentioned that 12 paisa daftar which is the

remaining part of Shamilat land has been decreed in his favour. Petitioners submitted reply to the execution petition and on 29.11.2005 this execution petition was dismissed by leamed executing court.

This order was challenged in appeal No.202/2013 which was also dismissed on 20.05-2006. In C.R.No.6l8 of 2006 dated 02.12.2008 both the orders were set aside and the case was remanded back to the leamed trial court for fresh decision on the objection petition of the present petitioners. In CP No.32-P of 2009 vide order dated 25.05.2011 August Supreme Court of Pakistan, maintained the remand order and hence the objection of the petitioners was put to trial and the parties produced their respective pro and contra evidence.

4.On 04.05.2012, the objection petition was allowed and the execution petition was dismissed by Ieamed executing court' This order was again challenged in appeal and after detailed discussion on merits of the case it was allowed on 29.01'2013 but with the direction that leamed trial court should appoint a local commission to inspect the spot in presence of both the parties in the light of documents dated 04.06.1935, 10.06.1945, 18.04'1956,

20.02.1957 and 25.11.1961. On 06.05.2014 this court in C.R.No.l 13 of 2013 dismissed revision petition of present petitioner and upheld the last two orders.

5.Thereafter local commission was appointed as per order dated 09.06.2014 who submitted his report on 21.10.2014 before the leamed executing court.

The local commissioner recommended that due to constructions existing on the spot the decree-holder may seek remedy in Khasra No.868 against all the Dawtaryan/original owners after ascertaining their documentary evidence, he has prepared site plan and recorded statements of the parties on the spot. On objections of the decree-holder, his statement was recorded as C.W.l, On 27.03.2015 the objection petition was accepted and the execution petition was dismissed by leamed executing court. This order was assailed in appeal No.8/14 of 2015, which was partially allowed on 22.06.2016 to the extent of property mentioned in sale deed No.596 dated 18.04.1956 and the case was remanded back to the /4 Iearned executing court for further proceedings in the execution petition in accordance with law. Hence, the instant two revision petitions' Details of cases are provided below:-

v

Court Order Date Fild By S.No Crie Nrturc

I Civil suit Civil Judgc Dismised 8.1.19E7 Mistri Umara Khan ,, 23.6.t987 R€spondent Appeal ADJ Dismiss€d

C.R.No.353/ PaItia.lly Missi 3 P.H.C t6.2.tw Umara Khan 1987 allowed Supreme Hazrat Umar 4 CP No.796 Dismissed 5.5.1999 Cout 5 Civil Suit Civil Judge Adjoumed Hs2rat Umar Sinc die.

Execution Civit Iudge Satisfied 2.4.200t Mistri 6 petition Umara Khan Execution Civil Judge Dismiss€d 29.|.2M Mistri 7 pctition Umara Khan t Appeal ADJ Dismissrd 20.5.2006 Mistri Umara Khan

9 c.R.61t2005 P.H.C. Rrmandcd/ a 12.2M8 MisEi ac{tptcd Umara Khan s.c. Dismissed 25.5.20fi Mistri l0 C.P.No.312009 Umara Khan

Objection Civil Judge Allowed. 4.5.2012 Samiullah lt Petition etc.

l2 Appeal ADJ Allowed 29.1.2011 Mistsi Umara Khan P.H.C. Dismissed 6.5.2013 Samiullah l3 c.R.l 13 of 2013 etc.

Obj€ction Civil Judgc Allowcd. 27 .3.2015 Samiullah l4 Petition etc.

A.D.J, PsrtiaUy 26.6.2016 Mistd l5 Appeal allowed Umara Khan

I have heard arguments of leamed counsel for the parties and Perused the record.

6.Leamed counsel for the Petitioners submitted that the execution petition has been filed for certain property which was not even part of the disputed property in the suit of respondent filed in the year /34 1981 and referred to Annexure 'A' which is list of the disputed proPerties and submitted that learned executing court has gone beyond the decree while proceeding with the execution petition of the

respondent. He placed reliance ort 1994 SCMR 2213, 2006 CLC 1555, PIJ 2009 Quetta 31,2010 SCMR 1417,2010 SCMR 1443 and 2012 YLR 398.

7.On the other hand, leamed counsel for the respondent in this civil revision as well as in the connected civil revision relied on earlier judgments and decrees and held that they are entitled to possession of the property mentioned within the boundaries in the heading ofthe execution petition.

8.The controversy between the parties has been set at rest by August Supreme Court of Pakistan in Civil Appeal No.796 of 1994 decided on 05.05.1999 when the appeal of Hazrat Umar and others was dismissed and the partial decree passed by this court in C.R.No.353 of 1987 dated 16.02.1994 was upheld.

This court had granted decree to respondent regarding the property detailed and specified in deed No.56 dated 04.06.1935 but their claim regarding Shamilat land had been dismissed. The detail ofsuit property is leL mentioned in Annexure 'A' which is annexed with plaint frled by respondent. During hearing of this civil revision, leamed counsel for the respondent referred to only one property in the said list to be the same as mentioned in the heading of execution petition but

allegedthat the present boundaries due to passage of time have changed so, therefore, the boundaries of Annexure 'A' are not the same as that mentioned in the heading of the execution petition. Perusal of the evidence recorded in court in the objection petition reveals that in addition to deed dated 04.06'1935 certain other deeds dated 18.04'1956,20.02.1957 and 25.11.1961 Ex.O.W.l/10 to EX.O.W.l/12 have also been relied upon. The property mentioned in these deeds may or may not be part of the suit Property which could not be allowed to be considered to be the same property, as mentioned in the original plaint of 1980-1981 as the onus of proof that the properly mentioned in the execution petition is the same as decreed lies on respondenUdecree-holder. By no stretch of imagination and on simple verbal statements of R.W.l and RW.2 while defending the objection petition could not be considered that the ProPerty mentioned in the execution petition is the decreed property. It just amounts to lay hands on a property rrr- and then leaving the other party to release himself from the clurches ofallegations and contentions.

g. Respondent/decree-holder was legally bound to prove according to ground realities that the suit

property mentioned in the execution petition was actually decreed in his favour. It was due to this reason that the local commission had also suggested that the respondent/decree-holder may seek execution of his decree in some other property comprising khasra No.863. grrggestion of the local commission appears to be beyond his authority or directions given by the court as he had no jurisdiction to exceed the same and during his cross-examination, respondent/decree-holder was legally bound to prove that the other khasra No.868 includes his decreed properfy

10.Leamed counsel for the respondent drew attention to judgment of August Supreme Court of Pakistan passed in Civil Appeal No.2l48 of 2006 decided on 11.05.2015. This appeal was filed by one Abdul Wahid against the present respondent and others and submitted that the suit property was held to be the property as part of the deed No.56 dated 04.06.1935 which was later on sold by one Gul /!/- Ahmad (Mochi etc). Para 9 of the said judgment is reproduced below:-

"Similarly, it was held that Mistri Umara Khan etc. hos got share to the ertent of 12 paisas in the Dafiar prupeq including the

house in dispute now in possession of the plaintiffs etc. and the revenue record was liable to be conecled because for lhe Jirst time the land settlement wss canied out in the Disttict of Swat in the year l9E5-86 and pruper khasra numbers have been allotted ,o both the properties'.

The observations made in the above paragraph in comparison with para 2 of the execution petition are in consonance with each other but the respondent/decree-holder during the evidence recorded in the objection petition has failed to prove the suit property to be part of the said decree as the local commission has also suggested so.

ll. This court in C.R.No.353 of 1987 had held as under:-

"Resultantly, I have corne lo the unescapable conclusion that no prcsurnption of correctness or ttrdh con be attached lo a documenl which is not produced in original d any stage and the one produced does not disclose thul the share in Shamilat was also fiansfened by lhe vendot".

While dismissing the appeal of present respondent/decree-holder, Hon'ble Supreme Court of Pakistan in civil appeal No.796 of 1994 held as under:-

oHowever, we ate nol impressed by the said conlention because the qaestion would depend /-e/- upon the circumstances of each case. In lhe present case' as has already been obsemed by the learned Judge in chambets, there appeats lo be nothing in the insttument in question to suggesl thol shamitul were ako inlended to be transfened

l0

to lhe appellanls alongwith the olher propeily by lheir fother, Gul Ahmad Consequently, in our opinion, the view taken by the learned Judge in chambers appears to be coreclu.

This is the beall and the endall ofthe judgrnent and decree that could be executed by a decree-holder and no more and no less so if executing court goes beyond the decree passed, it exceeds its jurisdiction and the same can be declared as null and void on the premise of abuse of process of law. Keeping in view the evidence recorded by the objectors, the evidence recorded by the decree-holder alongwith the report of local commission, it can be safely held that the objection petition has got force to be accepted and the impugned order dated 22.06.2016 passed by learned appellate court is in exercise ofjurisdiction not vested by law which has resulted in material irregularity and illegality.

Therefore, the instant revision petition is accepted and the execution petition stands dismissed with no order as to costs.

.?,uL- Anno ced. JADbE

DL19/02/201E.

IION'BLE MRJUSTICE MI'IIAMMAD NASIR MAHtr'OOZ.

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