Muhammad Yousaf Vs Hamed Farooq Khan

IUDGEMENT SHEET

IN THE PESHAWAR HIGH COURT, BANNU BENCH

Qudicial Department)

c.R. No.2e9-Bl?021

Muhammad Yousaf Petitioner.

Versus,

1.Hamed Farooq Khan,2. Shahid Farooq Khan,3. Majid Farooq (Sons) 4. Mst. Salma Farooq,5. Mst. Amna Farooq daughters, S, Mst. Nargis famal fWidow) of Khalid Farooq Khan residents House No. 42/B Railway Road Bannu City Tehsil and District Bannu. .R,espondents.

IUDGEMENT

Date of hea,ring: 2t.ot.2pz2.

Fof pe[itioner:

Respondents: Mr Mrrhammad Sheh Nawez Khan $ikandari, Advo,cate.

MUHAMMAD I{AEEM AN,WAR. I.- This single judgment in the instant petition titled "Mttholnmad Yousqf W Haryed Faroog Khan and 05 othef$" shall also decide C.R No. t3-B/2022 titled "Hamid, Farooq Khan & 05 others Vs Muhammad Yous,qf' not because that both these petitions have been filed against the same order but an identical question of law and fact is involved.

9?., Attestation of mutation No. 301 dated 12.06.2004 has provided a cause of action to Khalid Farooq son of Muhammad Sarfaraz Khan Advocate to file a suit for recovery of possession against Yousaf Khan son of Rauf Khan (petitioner) and Niaz Dil Khan son of Afsar Ali Iftan

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as through mutation No.301 from L3 Khata numbers, the property was purchased by the vendees including Khata No. 13 Khasra Nos: 295, 835, 836, 669,2/297 and 2/838 total measuring 9}-Kanals and from this Khata an area of L$-Kanal, and L\-Marlas property was transferred in favour of vendees. After institution of the suit, defendants/vendees were summoned who appeared and resisted the suit on different legal and factual objection.

After completion of evidence the learned trial court/ Civil |udge-V, Bannu through its judgment and decree dated 23.0L.2010 dismissed the suit of pre-emptor, however, learned trial court on issue No. 10 has held that pre- emptor (Hamid Farooq) is the co-owner along with defendant No.1 (Yousaf Khan) in Khasra Nos: 295, 835, 836, 669, 2/297 and 2/838 as such pre-emptor and vendee/defendant No.l. have got equal right. The findings of the learned trial court were assailed by the pre-emptor through civil appeal No. 21,113 of 2010 which was accepted by the learned Additional District fudge, Bannu on20.09.2010 and suit of pre-emptor was decreed in toto against the vendees/defendants. Being aggrieved from the judgment and decree of the learned appellate Court filed C.R No.89-B/2010, which was partially allowed by this Court through judgment and decree dated 11.05.2017, whereby it was held that petitioners were

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shown to be co-sharer in Khasra Nos: 295, 835,836,669, 2/297 and,2/838, therefore, the property to the extent of above Khasra numbers shall be distributed/divided beBveen pre-emptor and defendant in terms of Section XX of Khyber Pakhtunkhwa Pre-emption Act,'1,987. Decree- holder has filed execution petition No.15/10 on 03.07.20L8 seeking the execution in terms of the decree in his favour. 0n 30.7.20L8 the executing court has directed the execution of the decree in consonance of 0rder XXI Rule 35 Sub Rule 2 of the Civil Procedure Code, 1908. Warrant of possession was issued and it was got a

executed as only symbolic possession was to be handed- \ over to the decree holder, 0n 3 L.L0.20L8, the execution petition was filed being satisfied and the objections of the judgment-debtor were dismissed as withdrawn. Two mutations were attested on the strength of the decree rendered through C.R No. 89-B/2010 dated LL.05.20L7 in favour of the decree-holder. It appears that prior to attestation of mutation in favour of the decree-holder he had passed away as such mutation No. 593 and 594 were attested in favour of legal heirs of decree-holder on L2.L0.2077. Petitioner namely, Muhammad Yousaf (one of the judgment-debtor) has filed suit No. 406/L on 26.70.20L7 by challenging mutation No. 395 to be result of fraud and illegal. In his suit he has arrayed Tehsildar,

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Girdawar and Patwari Halqa of the revenue estate of Mardi Khel Tehsil and District Bannu and the legal heirs of the decree-holder. The application was contested and the plaint was rejected on 07,02.20L9. The order of learned trial court was assailed through appeal but the same too was dismissed by learned Additional District |udge-V, Bannu on 02.11.20L9, thereafter, the petitioner has filed execution petition No.08/10 on 16.11.20L9 for execution of the decree passed in C.R No. 89-8/2010 by this Court on 1L,05.20L7 and application was submitted by the decree-holder for dismissal of execution petition, the application of the decree-holder was turned down and execution petition was held to be maintainable by the learned executing court/Civil fudge-lX, Bannu on 09,t0.2021. The order was assailed by the decree-holders through appeal No. 69/14 which was dismissed by the learned Additional District Judge-ll, Bannu on 07.L2.202L.

Being aggrieved from the order of learned appellate court respondents/decree-holders filed connected C.R No. 13- B/2027. Like-wise, both the orders of learned executing Court as well as of the appellate court were assailed through the instant revision petition by the petitioner on the ground that the decreed property shall be distributed between decree-holders and the judgment debtor in equal shares.

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03.Arguments heard; record perused.

w. It is indisputable that in mutation No. 301 attested on 12.06.2004 there were two vendees namely, Yousaf Khan son of Rauf Khan and Niaz Dil Khan son of Afsar Ali Khan and the property was mutated in their names through sale mutation in equal shares. It is also not in dispute that Niaz Dil Khan was not the owner in the suit property and even he was not held as co-sharer by the learned trial court whereby the suit of pre-emptor was dismissed nevertheless, the learned trial court has held to the extent of issue No.10 that "as per revenue record the plainW is co-owner iA the suit land whereas defendant No.7 iS also co-owner in suit KhaSra Nos: 295. 835,. 036. 669.

\ 2/297 and 4838, therefore. in the light of available revenUe record it appears thql plaintiff being co-owner in the suit land have superior right of prq-emption except suit Khasra Nos: 295.

835.836. 659. 2/297 and 2/838 in w.hich plaintilJ and defendant have equal righ*." Learned appellate court in its appeal No.

2l/L3 has decreed the suit in toto in favour of decree- holders on the basis of principle of a sinker by considering that defendant No.1 had joined himself with a stranger who did not possess any right in the suit property and has included the doctrine of sinker and held the pre-emptor entitled for the entire property. The judgment and decree of learned appellate court was assailed before this Court

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by the defendants/vendees through C.R No. B9-B/2070 which was partially accepted and it was held that the petitioners are the owners in Kftasro Nos: 295,835,836, 669,2/297 and 21838 only, as such to this extent it was held that both the pre-emptor and vendee shall be entitled equally in view of Section XX of the Act of LgB7,

05.In essence, the grievance of the petitioner is that when one of the vendees, i.e., Niaz Dil Khan was not the owner in the disputed property thus his shares shall also be distributed equally between the decree-holders and the petitioner, Undeniably, mutation No. 593 has got no nexus with the present dispute as to that extent the shares of the vendees were mutated in favour of the decree-holders in respect of the entire property and in that mutation Khata No. 13 was not included as such mutation No. 593 is held to have been attested in accordance with the judgment and in juxta position with principle of Section 20 of Pre-emption Act, 1987. The dispute is in respect of distribution of property through mutation No. 594 which was attested on the basis of a decree of this Court in favour of decree-holders.

Admittedly, Khata No. 13 Khasra Nos: 295, 835,836, 669, 2/297 and 2/838 was the joint ownership of pre-emptor and the petitioner wherefrom lB-Kanals and 7\'Marlas property was transferred in favour of vendees, i.e., Yousaf

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Khan and Niaz Dil Khan in equal shares. The half of 18- Kanals and t1-Marlas was 9-Kanals and 7 {z -Marlas as Niaz Dil Khan is not the owner of the property and pre- emptor has assailed the same and it was got decreed in favour of pre-emptor thus, the shares of Niaz Dil Khan shall be transferred in favour of decree-holders whereas to the extent of remaining 9-Kanals and 7 T|-Marlas both the pre-emptor and vendee were co-sharer, therefore, the share of vendee i.e.,9-Kanals and 7 Tz -Marlas shall be divided equally, which comes to 4-Kanals,73-Marlas and 8-Sarsais hence, from LB-Kanals and tS-Morlas of the disputed property to the extent of Khata No. 13 total N entitlement of the decree-holders would be L4-Kanals, ll-l4arla and 6 Yz -Sarsais. Both the parties were relying upon the principle enunciated by the apex Court in the case of "Khan Gul Khal Vs Daraz " (2010 SCMR 539), wherein it was held by the apex court:

" (i) Punjab Pre-emption Act (IX of 1991)-- ----S. 20---Equal right of pre-emption---Distribution of share---Suit was contested by one pre-emptor and two vendees and all the Courts below concurrently decided to distribute suit property between both the parties equally-- -Plea raised by vendees was that property should be distributed on prorate basis among all three persons having equal right of pre emption---Validity---Parties were entitled to share the property on the principle of per capita---Revisional judgment of High Court and judgments and decrees passed by Lower Appellate Court and Trial Court were set aside to the extent of mode, manner and measure of sharing suit property by the parties under S.20 of Punjab Pre-emption Act, l99l--- Parties were entitled to share suit property per capita;

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each would get l/3rd share---Two vendees and one pre- emptor would each be entitled to l/3rd share of the property on payment of l/3rd sale price by everyone--- Appeal was allowed. "

06.Learned counsel for petitioner while interpreting the principle enunciated by the Hon'ble Supreme Court of Pakistan submitted that when one of the vendees was stranger than his share shall also be distributed amongst the remaining parties in contest i.e., pre-emptor and the petitioner (vendee). He further submitted that total property in dispute shall be considered in respect of the entitlement of both the parties and when the total t property was 09-Kanals and L9-l4arlas it was to be divided in equal shares between the decree-holders and the vendee. Mr. Muhammad Shah Nawaz Khan Sikandari Advocate, contended that to the extent of the share of Niaz Dil Khan the petitioner/vendee has got no concern and the total shares purchased by Niaz Dil Khan shall be transferred to decree holder.

gL Equal division of property between preemptor and vendee defendant, if both the parties have equal right is dealt with section 20 of the Khyber Pakhtunkhwa Preemption Act 1987, which for convenience is reproduced as under: -

Section 20. Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right or pre-emption, the property shall be shared by them equally.

The wording of section 20 is self-explanatory so far as the controversy is concerned, nonetheless, for equal division it is sine qua non that both the preemptor and vendee fall within the same class with respect to their right of preemptionronly than the disputed property to the extent of their equal rights shall be divided between them equally. Both the vendees purchased the property in equal share through single mutation but one of the vendees i.e., Niaz Dil Khan, whose share were 9-Kanal 7 1/z Marla, was stranger so his share on the basis of decree has been transferred in favour of decree holder whereas the petitioner whose shares were also 9-Kanal 7 Tz Marla shall be divided between preemptor and the vendee/petitioner in equal share, therefore, the petitioner is entitled for 4-Kanal 13-Marla and 8-Ll3 Sarsai whereas the entitlement of the preemptors are 14-Kanal l-Marla and 6 % Sarsai. In such state of affairs mutation No. 594 dated L2/10.20L7 has rightly been attested. The claim of the petitioner for the half of the shares of Niaz Dil Khan is misconceived. The decree has properly been executed and filed after its satisfaction. The principle of division of property as enunciated in the case of Khan Gul Khan within the ambit of per capita has further been upheld by the Supreme Court in the case of "Faizullah KJlan and other Versus Hqli Abdul Hakeem Khan" (zOLl SCMR 1802).

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08.Moreover, the fresh execution petition filed by the petitioner was unwarranted, unjustified and the'order of the learned executing Court and that of learned appellate Courts are patently illegal, based upon wrong interpretation of section 20 of the Pre-emption Act,L9B7 Thus, I feel no hesitation to set at naught both the impugned orders i.e., 09.10.2027 of the learned executing Court and 07,L2,202L of the learned appellate Court. The application for execution filed by the petitioner stands dismissed. Accordingly, for the reasons discussed above both these petitions are disposed of. No order as to costs.

Announced.

21.0t.2022.

il-,

JUDGE

'lmronullah PS' (S.B) Hon'ble Mr.lustice Muhammad Noeem Anwar yq Ir

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