ZAMINDARAN-E-JAGIR BASIN Versus SAFAR KHAN
ALI BAIG, J. ---Through the instant civil first appeal, the appellants have challenged the vires of the impugned judgment/order dated 15-9-2016 passed by the learned Civil Judge 1st Class Gilgit in Civil Miscellaneous Petition No.84/2013 fresh No.32/2015, whereby the learned trial court has dismissed the petition of the appellants filed under Order XXI, rules 100 and 101, C.P.C.
2. Necessary facts out of which the present civil first appeal arises are that the present respondents/plaintiffs Nos.1 to 11 had filed a suit for declaration with consequential relief to the effect that the present respondents Nos.1 to 11/plaintiffs are entitled to get compensation amount amounting to Rs.8,88052/53 on the basis of award No.SO-HC(13)/2920- 22/94 dated 31-1.2-1992 according to their due/ apportionate share as given in acquettance Rolls as the defendants/present respondents Nos.12 to 16 are reluctant to pay the aforesaid compensation amount to the present respondents Nos.1 to 11/plaintiffs with mala fide intention.
3. The present respondents Nos. 12 to 16 being defendants in the suit contested the suit by filing their joint written statement in the trial court, wherein they have raised certain legal objections and also repudiated the averments of plaint by asserting/pleading that the award dated 31-12-1992 passed by the then Settlement Officer/Collector Gilgit is fabricated and bogus as the then Settlement Officer namely Attiullah Khan who had passed the award has declared the same as bogus.
4. Out of the divergent pleadings of the parties the learned trial court has framed as many as 10 issues including issue of relief. After framing of issues the parties led their respective oral and documentary evidence in support of their respective claims in the learned trial court.
5. On conclusion of trial, the learned trial court vide its judgment/decree dated 27-9-2000 had decreed the suit in favour of the plaintiffs/present respondents Nos. 1 to 11. The aforementioned judgment/decree passed by the learned trial court was challenged in this court by the respondents Nos.12 to 16/defendants, through civil first appeal. This court after hearing arguments on behalf of the parties had also dismissed the civil first appeal of present respondents Nos.12 to 16/defendants vide judgment dated 21-6-2006.
7. The aforesaid judgment/decree passed by this court was also challenged in the then Hon'ble Northern Areas Court of Appeals Gilgit through C.P.L.A. No.39/2006 which was also dismissed by the then Hon'ble Northern Areas Court of Appeals vide judgment dated 23-5-2007 and decree passed in favour of the plaintiffs/respondents Nos.1 to 11 by the learned trial court had attained finality. Accordingly, the present respondents Nos.1 to 11/decree holders filed an Execution Application in the learned trial court/Executing Court for execution/ implementation of decree dated 27-9-2000 passed by the learned trial/Executing Court in favour of the plaintiffs/decree-holders.
8. During pendency of Execution Petition before the learned trial/Executing Court, the present appellants/ petitioners filed an application under Order XXI, rules 100 and 101 read with section 151, C.P.C. wherein they have averred that a piece of land which was acquired for construction of Gilgit to Gupis track-able road and award bearing No.SO H.C913)/2920-22/92 dated 31-12-1992 was passed in favour of the present respondents Nos.1 to 11/plaintiffs fall within the boundary line of the Jagir Basin as per survey carried-out by the commission in any other case dated 25-11-2008, hence the appellants/petitioners are entitled to get decretal amount of land measuring 31 kanals and 10 marlas which was acquired by the present respondents Nos.12 to 16 for construction of Track-able road from Gilgit to Gupis.
9. The present respondents Nos.1 to 11 contested the aforesaid petition of the present appellants by filing replication in the trial/Executing Court. The learned Executing Court vide the impugned judgment/order dated 15-9-2016 has dismissed the application of the present appellants filed under Order XXI, rules 100, 101 read with section 151, C.P.C., hence the civil 1st appeal.
10. The learned counsel appearing on behalf of the appellants contended that the impugned judgment/order passed by the learned Executing Court is contrary to law and facts on the record of the case; as such the impugned order passed by the learned trial/Executing Court is not maintainable and liable to be set aside. The learned counsel for the appellants further argued that the disputed land measuring 31 kanals 10 marlas which was acquired by the present respondent Nos.12 to 16 for construction of Truck-able Road from Gilgit to Gupis falls within the boundary of Jagir Basin, as per report of commission and this court has made rule of the court, the commission report on 25-11-2008, hence the appellants are entitled to get compensation amount of the aforesaid acquired land. The learned counsel for the appellants/petitioners further argued that the learned trial/Executing Court has wrongly dismissed the petition of appellants/petitioners filed under Order XXI, Rules 100, 101 and section 151, C.P.C., thus the impugned order passed by the learned trial/Executing Court is not sustainable as the learned trial/Executing Court has dismissed the aforesaid application of the appellants filed under Order XXI, rules 100, 101 and section 151, C.P.C., in a hasty manner which may be set aside. Concluding his arguments the learned counsel for the appellants argued that the learned trial/Executing Court had framed issues, but before recording of evidence of the parties, the learned trial/Executing Court has dismissed the petition of the appellants which is against the settled law and laid down procedure.
11. Conversely, the learned counsel for the respondents Nos. 1 to 11 defended the impugned order passed by the learned trial/Executing Court by contending that since decree passed by the learned trial/Executing Court has been upheld up to the Hon'ble Supreme Appellate Court and judgment/decree passed by the learned trial/Executing Court has attained finality and t appellants had filed the application under Order XXI, rules 100 and 101, C.P.C. with mala fide intention to prolong the proceedings and the learned trial/Executing Court has rightly dismissed the application filed under Order XXI, rules 100 and 101, C.P.C. by the appellants. The learned counsel for the respondents Nos.1 to 11 further argued that the then Registrar of this Court vide order sheet dated 15-4-2006, had wrongly placed the commission report on the file as part of the order dated 17-4-2003 after decision of previous revision petition, therefore, this court vide its order dated 25-11-2008 has expunged the order dated 15-4-2006 passed by the then Registrar of this Court and commission report was sent to the Deputy Commissioner Gilgit for his record, as such the learned trial court has rightly dismissed the application of the present appellants which may be maintained in the interest of justice.
12. We have heard the learned counsel for the parties and perused the record with their able assistance.
13. First of all for ease and convenience we would like to re-produce the provisions of Order XXI, rules 100 and 101, C.P.C. as under:-
100. Dispossession by decree-holder or purchaser:---(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession.
(2) The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.
101. Bona fide claimant to be restored to possession:---Where the court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property.
14. Bare reading of the aforesaid provisions of law it reveals that both the aforesaid rules apply only to case of dispossession of decree-holder or purchaser. In the instant case neither the disputed land measuring 31 kanalas and 10 marlas was in the possession of appellants nor they have been dispossessed from the disputed land which was acquired for construction of the Gilgit to Gupis Ghizer Truck-able Road, hence the petition of the appellants filed under Order XXI, rules 100 and 101, C.P.C. was prima facie not maintainable. In this connection reference can be made to the reported judgment of Lahore High Court 1979 CLC 446. The present respondents Nos.1 to 11/plaintiffs had filed a suit for declaration and recovery of compensation amount against the present respondents Nos.12 to 16 in the learned trial/Executing Court, which was contested by the present respondents Nos.12 to 16 and ultimately, the respondents Nos.1 to 11/plaintiffs have won the case up to the Hon'ble Supreme Appellate Court Gilgit-Baltistan. The suit was filed by the plaintiffs/respondents Nos.1 to 11 in the trial court in the year 1993 and the plaintiffs/present respondents Nos.1 to 11 had won their case from trial court to the Hon'ble apex Court. The appellants have filed the application under Order XXI, rules 100 and 101, C.P.C. in the Executing Court on 12-8-2015 after lapse of period of more than 22 years of the institution of suit by the plaintiffs. The present appellants/petitioners have kept mum for last 22 years and have filed the aforesaid application when the respondents/plaintiffs filed execution petition in the Executing Court, hence mala fide on the part of appellants cannot be ruled out.
15. Moreover, the appellants had filed the aforesaid petition in the learned trial/Executing Court mainly on the ground that demarcation of the disputed land was carried out by a commission consisting of revenue officers in the light of order of this court and report of commission was made a rule of court by this court.
16. From perusal of record it appears that the Registrar of this court vide order sheet dated 15-4-2006 had wrongly placed the commission report on file of one another previous revision petitions as part of order dated 17-4-2003 after decision of the revision petition, therefore, this court vide order dated 25-11-2008 has already expunged the aforesaid order passed by the learned Registrar of this court, hence, the aforesaid order of the Registrar of this court is no more in field.
17. For the above stated detailed reasons, we are of the view that the learned trial/Executing Court has not committed any material irregularity or illegality while passing the impugned order under appeal warranting interference by this court as the learned counsel for the appellants has not been able to point out any illegality or material irregularity in the impugned order passed by the learned trial/Executing Court. Consequently, the instant civil 1st appeal having no force stands dismissed and impugned order passed by the learned trial/Executing Court stands maintained. Record and proceedings of the learned trial/Executing Court along with certified true copy of this judgment be remitted back to the learned trial/Executing Court forthwith. File.
ZC/2-GB Appeal dismissed.