Muqadar Khan Vs Ayub Khan and others

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t' I

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

C.R No. 4l-Pt201s

Muosdat Khan and 0l oth

Present: WS Fazal Haq Kohdamani and Muhammad Atlas Khan, Advocates for petitioners along with Iqbal son of petitioner No.2 (nephew otpetitioner No.I).

Muhammad Ismail Khalil, Advocalefor respondents along with respondent No.l in person,

Date of hearing: 01.08.2024

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.- This civil revision filed under section 115 of CPC (1908) calls in question the judgment/order and decree of the learned Additional District Judge-IX, Peshawar dated 2O.L2.2O2L4 whereby appeal of the petitioners against the judgment and decree of the learned Civil Judge-XIII, Peshawar dated L6.lL.2OL2, accepting the application of plaintiffs (respondents No. 1 to 3) and converting the preliminary decree into linal decree, was dismissed.

2.Aziz Khan, predecessor-in-interest of respondent No.1 to 3, Iiled suit No. 4621 I on 19.1O.2OO1 seeking recovery of possession through partition in respect of 2l-Marla property out of 42-Marla in the constructed Hujra situated at Kandi Musa Khel, Sufaid N Dheri, District Peshawar, on the strength of deed No.8 registered in his favor on 29.01.1913. The suit was resisted by present petitioners (defendants No.2 & 3) along with defendant No.l Noor Muhammad on different legal and factual objections. They also sought dismissal of the suit because of decisions in suit No. 542/I decided on 18.01 .L9L7 and suit No. 37 18 decided on 04.08.1913. The remaining defendants, as they were, also contested the suit through their separate written Tajamul/CS* (s.Bl Hon'ble Mr. Justice Muhammad Naeem Anwar

statements. The learned triar court framed 15 issues from divergent pleadings of the parties who recorded their evidence in support of their respective contentions. considering the evidence, preliminary d.ecree was passed. by learned civil Judge-vll, peshawar on l9.tr.2oo2 in favour of respondents No.l to 3/plaintiffs (hereinafter called decree-holders). The validity of the preliminary decree was not challenged by any of the defendants, including the present petitioners. An application was moved by the decree-holders on 18.OZ.2OOS for conversion of the preliminary decree into final decree. After issuance of process in the application, the rearned trial court appointed a local commission to proceed to the spot and submit his report after conducting the proceedings, which was submitted accordingly. The report was objected to by the decree-holders and the present petitioners. In view of the objections of the parties regarding the report to the Local Commission, Malik Iftikhar Advocate, the local commission, was examined as CW-2 on 14.O5.2O1O. He was cross- examined by present petitioners (defendants No. 2 & 3), however, the decree-holders opted not to cross examine him despite the opportunity given to them. The learned executing Court, after hearing the parties, turned down the objections on L6.LL.2OI.2, confirmed the report of local commission and preliminary decree was converted into final decree. The order was assailed by the present petitioners; however, their appeal was dismissed by learned Additional District Judge-IX, Peshawar on 2O.12.2OL4. Being aggrieved, the petitioners assailed the orders and decree of both the learned Courts below \ through instant petition wherein pre-admission notice was issued to respondents on 13.02.2015 and the proceedings before tJ:e learned executing Court were suspended.

Taiamul/CS* (s.B! Hon'ble Mr. Justlce Muhammad Naeem Anwar

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3.Learned counsel for the petitioners contend.ed that the report of the local commission and the impugned orders have been questioned by the petitioners on two grounds that (i) the of local d which be d and (ii) The property which was measured bv the local the the decreed property.

4.Learned counsel representing the decree- holders supported the impugned judgments/orders and in addition, he contended that since the preliminary decree was not challenged by the present petitioners, therefore, they cannot question the fate of the preliminary decree granted in favour of the decree- holders.

5.Arguments heard, and record perused.

6.Insofar as the discretion of the disputed property is concerned, suffice it io say that the plaintiffs/ decree holders have glven the description of property in the plaint with specific reference to the boundaries of the house reads as:

J r f I ,cJhri rLI o rrs rJ5.r il , f clr ^Lr -. .rrL] Jr f t rJ.{3 ^rrt!,;Lrli r,'c er ^rat e r.iltJl rp rb OLelll ,Jf rJl OUr Ci.Ii +jLf ifrr+ oUrrr J+ rJ+J. J, fiJ. JJi,+ ld ^il,J AilS .,.+ SitJ ,err 0tSr ,Jtri +il+ S .cLi r.L.F aSf cSf.l dj..r a+S +S'lf J ,-r..ti qrj[| .tJ,ei Jii Fl"b J d!..ri dJi^ ! +fu &-A J. ^rtJ

The aforesaid description of the decreed house could be questioned at the time of pending adjudication of the suit, though they have taken certain preliminary objection about maintainability of the suit, but it was decided that the predecessor in interest of the plaintiff was the owner of decreed property to the extent of his \ shares. The petitioners could not prove their respective contentions as such preliminary decree was granted on 19.11.2OO2. Admittedly, the judgement & decree of the Taiamul/C5* (s.Bl Hon'ble Mr. Justice Muhammad Naeem Anwar

learned trial court has not been assailed by the petitioner thus, those findings regarding the entitlement of decree holder in the decreed property have become final. It is well settled law that the judgement & order of the court if not assailed attains lina1ity. This view is fortified from the dicta laid down by the apex court in the case of "Muzaffar Khan as. sanchr Khan and, anotherD (2oo7 scMR 181). Reliance may also be placed on the case law as reported in case of "Ghulam Rasool throrgh L,R" ond other" V". Muhom^od Hu""oln ond other{ (pW nn SC nq. Wunamnaa estarn ana Z others a. Soed ilIuhammad, Azeem Shah 1L996 SCMR 18621 and, Kanwal No;ln o, ?ateh Khan lpLD LggB SC S3l, Gul Rehman Khan as, Shlrlan Khoju-', l2OO4 SCMR 5921. Khurshld Soao and. Chemlcal Industrles (Prtt) Ltd Vs, ?ed,ero;ttfion of Paktstan (PLD 2O2O SC 64U.

Z. Moreover, the matters relate to the entitlement of the decree holders through preliminary decree could not be questioned at the time of final decree. It is an admitted fact that preliminary decree granted in favor of the decree-holders by the learned trial Court on 19.11 .2OO2 has not be challenged by the present petitioners. the petitioners are precluded from questioning the validity & correctness of linal decree because they have not assailed those findings at the time of preliminary decree in view of the provision of section 97 of the Code (1908), which reads as under:

97.lllhere any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from dtsputlng lts correctness ln any appeal whtch may be preferred from the final decree.

The basic object and philosophy of Section 97 C.P.C. is that when a preliminary decree is passed but N no appeal is preferred, the correctness, validity and legality thereof cannot be questioned through appeal when the preliminary decree is converted into final Taiamul/CS* (s.B) Hon'ble Mr. Justlce Muhammad Naeem Anwar

v decree. Failure on the part of a party to challenge the preliminary decree within the period of limitation provided under the law precludes the party from challenging the same in appeal against the linal decree. Reliance may be placed on *Ifiessrs. conlorce Llmlted. Vs. Messrs Raftque Industrles Ltd,. and othersp lpLD 1989 S.C 1361. it was held that "section 97 of CpC debars q partA from questioning the correctness of preliminary decree in an appeal preferred from finat decree. Therefore, if a partg fails to challenge preliminary decree within the prescribed period of timitation, the partA would be precluded from challenging tlle same in an appeal against ftnal decred. The Privy council in Ahmed Musalt Salefi as, Hashlm Ebrahlm Salefi (AIR :lgt5 OC 116) has held that failure to appeal against preliminary decree would operate as a bar to raise any objection to it in an appeal filed against final decree. It is also an admitted fact that the petitioners were not only party, but they have contested the suit but once the decree (preliminary) was passed they have not challenged it.

g. lastly, the objection that the property which was inspected at the spot by the learned Local Commission is not the disputed one, this objection is mainly based on the suggestion which was put to the local commission during his cross-examination by the learned counsel for petitioners, to which he replied that: -r i rl c9.$r tlrr$r c t -- , A , J -r ri-c. orr lr.irrS , J[ c r JtS -r ]lir ^1 rlr+il* og r.5.lr

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. ,-,+ f,,ll3 -r.fr Ci ! r r -u ^il9.$.

Not only the local commission has denied the suggestion of the petitioners, but the petitioners are estopped from questioning the decreed property at the spot. During the pendency of the suit patwari halqa proceeded to the spot, prepared the sketch of the Hujra and placed it on the record and this was placed on record by the petitioners during cross examining Aziz Khan (plaintiff).

Tajamul/CS* (s.Bl Hon'ble Mr. Justice Muhammad Naeem Anwar

Relevant portion of the cross examination is reproduced v as under:

JTJ E

^l!r .,+ t# dL Petitioner No.2 entered the witness box as Dw-l and deposed in his cross examination that:

., l+3 !S Jl_F Jy f I Jrj!diJ.rS,pr. &-rl. ud.^.-J& rl*t+ c,lr l&S ^r or.

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He in his cross examination admitted that: .-l r.lcr A.il anf a*fesrir.rl+il+ cJ+s,* {r,j ,Jt{+js OiJf : Of. _s ++ In view of the statement of Dw-l, cross examination of RM, neither the petitioners could question the boundaries of the decreed property, nor the location of the property could be disputed. Moreover, the objection that Ahmadzia was not the party to the suit is also or no help to the petitioners because the decree horder now his legal heirs were held entitled for 7-Marlas property and the local commission has opined that the property is partitionable, he also devised the mode of partition to the extent of shares of the decree holder with a sketch prepared at the spot.

9.Another ridiculous objection of the petitioners was that the report was objected to by the plaintiff (decree holder) and in that scenario it could neither be confirmed nor relied upon. Filing of objection and cross- examining local commission are two different things. No doubt that the decree holder filed objections to the report. However, when the local commission appeared as CW, he was cross examined by the petitioners whereas, the decree holder opted not to cross examine despite opportunity given. The decree holder could not be forced to cross examine the local commission. A party may submit the objection, but he may or may not cross examine the local commission. Non-cross examining the local commission would not render the report nullity in \ the eye of law nor would lessen the significance of the report. No doubt the right of cross-examination is an Tajamul/CS* (s.Bl Hon'ble Mr. Justice Muhammad Naeem Anwar

v integral part of the principles of natural justice but when the opportunity to cross examination was afforded and the party did not cross examine the witness the legal requirement of the rule of evidence complied with and the statement of such witness sharl be deemed to be permissible under the law.

70.T[rrning to the objection of the petitioners that they had not been served for their participation in the proceedings of the local commission at the spot. It is in Para No.2 of the report of local commission Ex. CW-z/L it was reported that on 24o November 2OOT the local commission had directed the parties for their presence on the spot but since they were not present at tJle spot on the mentioned date, therefore, the proceedings were postponed for 25e November 2OO7 (Sunday). It would be appropriate to have a look on the TORs which are reproduced as under:

il lfhether suit property ls partltlonable or not, lf not what is the reason? If yes, what will be the mode of partitlon?

iil If the sult property is not partitlonable, then what wlll be the market value of the suit property?

iiil Statement of the parties.

ivl Slte plan.

The term of reference at Serial No. (iil was subject to the conclusion drawn by the local commission at the spot about direction at Serial No. (il. The local commission proceeded to the spot, he measured the property, prepared. the sketch without scale and determined the shares of the parties considering the decree granted in favor of the decree-holders i.e., lls,a share out of 2l-Marla. These were the findings of the learned trial Court and were mentioned in the decree sheet drawn by the Court of first instance. 2l-Marla property was found in possession of Zafar Khan (petitioner No.2) and one Ahmad Zia from who was present at the spot at the time of proceedings conducted by local commission. Both i.e., Zafar Khan and Ahmad Zia were in possession of Taiamul/CS* (s.81 Hon'ble Mr. Justice Muhammad Naeem Anwar

lLYz Marla each and it has been observed by the local commission that the property was partitionable. He prepared the sketch and devised the mode for partition by 3% Marla from the property which was found in possession of petitioner/defendant zafar Khan and s% Marla from the property which was found in possession of Ahmad zia whose statement was also recorded. It is pertinent to mention that till now neither Ahmad zia ever appeared before the executing Court, nor he has questioned the validity of the report of local commission nor the final decree before any forum. Though the local commission was asked about the presence of petitioner No.2 about whom the local commission replied that he was absconder in a criminal case however, neither any question about petitioner No.1 was put to local commission nor any suggestion was brought on record. The proceedings conducted at the spot, if seen in juxtaposition with the sketch and the findings of the local commission, would repeal the contention of the present petitioners. During hearing of the instant petition, one Iqbal son of Zafar Khan (petitioner No.2) was before the Court who stated that the objectors/petitioners are not in possession of the property at the spot and likewise, it is reflected from the report of local commission and findings of the Court in the order thereon that the constructed property at the spot was in delipidated condition and this fact was also endorsed by Iqbal son of petitioner No.2 namely Zatar Khan. It is high time to observe that the decree was granted in the year 2OO2, but the decree- holders have been still seeking and waiting for the fruits of the decree for the last 22 years. Such a conduct of the party on hand creating hinderances for the decree holder to keep themselves away from the decree holder for satisfaction of their inner conscious and such practice is \ resulting in backlog of the cases. It is alarming that preliminary decree was passed in 2022 which \Mas Taiamul/C5* (s.Bl Hon'ble Mr, Justice Muhammad Naeem Anwar

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v converted into final decree in 2oL4 but still the d.ecree holders could not get the actual possession of the decreed property which has been delayed for baseless and unwarranted objections of the petitioners. All the objections taken by the petitioners are frivolous and vexatious which requires to be dealt with in consonance with the procedural law as held by the supreme court in the case of Jaaed, Hameed, and others os. Aman tlllah and. others (2024 SCMR 891, Goaernment of Khuber Pakhtunkhuta through secretnnt. Drementant and, secondary Dducatlon DqoartmenL peshanoar and others as Amlad ur Ro,hmon and others (2o24 sc*rR 424t. Khalld Pentalz as, Samlna and. others (2024 SCIWR 142J. and, Akber-Ud-Dln as. Ileadmaster Goaernment Hlgh School Reshun and, others (2023 SCMR 7t33t.

77.In light of the above discussion, there is no substance in the instant petition which is hereby dismissed with cost of Rs.IOO.OOO/- (one hundred thousand) recoverable from the present petitioners by the decree-holders before the learned executing Court. Announced Dt:01.08.2024

d*,

Taiamul/C5+ (s.B) Hon'ble Mr. Justice Muhammad Naeem Anwar