SITARA KHAN Versus Syed ZAHIR SHAH
QALANDAR ALI KHAN, J.--- Sitara Khan and 3 others, petitioners, have, through the instant Revision Petition, assailed the order dated 8.12.2014 of the learned Additional District Judge-IV, Swabi/Appellate Court, whereby, appeal of the petitioners against the order dated 15.10.2014 of the learned Civil Judge-IV, Swabi/Executing Court was dismissed in limine with compensatory cost of Rs.5000/- on account of "using delaying tactics on their part and lingering on the execution proceedings unnecessarily and in their vested interest". Earlier, the learned Civil Judge-IV, Swabi/Executing Court had dismissed objection petition of the petitioners vide his order dated 15.10.2014 on the ground that "the instant objection petition is filed just to linger on the execution proceedings." In other words, both the learned Executing Court as well as Appellate Court arrived at a unanimous conclusion that the Objection Petition was aimed at further delaying the execution proceedings with mala fide intentions.
2. In their Objection Petition, petitioners had raised objection to the issuance of "Warrant Dakhal" vide order sheet dated 6.9.2013 in favour of the Decree Holders in respect of on the property/land of the Petitioners/Objectors measuring 9 Marlas. The stance of the Petitioners/Objectors was that they had purchased land measuring 15 Marlas, including 9 Marlas in question, through unregistered deed in the year 1979, whereupon was constructed by them, and that mutation No.101 was also registered and attested in respect of the same property/land on 26.6.2013. Therefore, their rights were protected under various verdicts of the Courts as well as Executing Court which had issued "Warrant Dakhal" with regard to the vacant land. The petitioners also impugned execution of the preliminary decree in the absence of final decree in the case.
3. During the course of arguments, the learned counsel for the petitioners also stressed that in the absence of final decree, preliminary decree was not executable, particularly, against them, as they had become owner in possession of 15 Marlas under sale transaction with the co-owner namely Mst. Bibi Reban in the year 1979, and that they had constructed the over a part of the said property/land, measuring 9 Marlas.
4. There are no two opinions that unregistered sale deed, requiring compulsory registration, does not create title in favour of the purchaser. In this case, the said mutation in respect of the property/land measuring 15 marlas was, admittedly, attested on 24.6.2013, thus, defying the assertion of the petitioners that they had purchased the property/land in question long before in the year 1979 and had also raised construction on a part thereof i.e. 9 marlas, regarding which, according to the petitioners, no "Warrant Dakhal" could be issued on the basis of a preliminary decree in favour of Decree Holders, initially on 17.12.1977, and after remand on 17.11.1989.
5. It will be relevant to point out that both the Executing and Appellate Courts concurrently held Objection Petition of petitioners not tenable in law, on the grounds that a mutation attested in the year 2013 could not nullify the effect of a decree long before in the year 1977 or latest in the year 1989; which, undoubtedly, had attained finality. The Courts also referred to the dismissal of earlier Objection Petition filed on the same ground of purchase of a part of the property/land in question, by the Executing Court, Appellate Court and, above all, by this Court vide judgment/order dated 2.5.2011. No doubt, while disposing of the Revision Petition, this Court had observed in the judgment/order dated 2.5.2011 that "The Executing Court shall look into the matter and if certain persons alleged to have become owners through purchase from lawful owners to the extent of their shares in the joint property, the decree shall not be executed against their property"; but at the same time there can be no doubt about this fact that the aforesaid observations of this Court related to the persons who had already become owners in the property/land before the judgment/order dated 2.5.2011; whereas the sale mutation in favour of petitioners by a co-owner namely Mst. Bibi Reban as attested after more than two years of the said judgment/order, on 24.6.2013.
6. Besides, the learned Executing Court as well as the Appellate Court observed that Khasra No. wherefrom the petitioners allegedly purchased the property/land measuring 15 marlas has not been mentioned in the sale mutation dated 24.6.2013, whereas, on the other hand, the decree in favour of the Decree Holders was executed in respect of 6 kanals and 2 marlas out of total of 6 kanals and 11 marlas, except the remaining 9 marlas where-on construction was found by the bailiff who was, therefore, accordingly, directed by the Executing Court to determine the cost of construction as per market value while the Decree Holder was directed to make payment of the cost of construction on the spot to the house holders whereafter the property in question was to be handed over to the Decree Holder. Needless to say that nothing is discernable from the record that a warrant for demolition of construction was issued, as alleged by the petitioners in their instant Revision Petition.
7. The learned counsel for the petitioners vehemently argued for appointment of a commission to separate shares of the Decree Holders in the shape of a final decree and that the decree had also become not executable being time barred as the decree was passed in the year 1997. To say the least, it is very late in the day to raise such like objection when the decree has already been executed to greater extent i.e. in respect of 6 kanal and 2 marlas, leaving only 9 marlas in respect of which the decree is yet to be executed, together with the fact that the remaining property/land has been identified and steps have already been taken to safeguard the interest of the person(s) who has/have raised construction even afterwards, during pendency of the execution proceedings.
8. In view of the above, nothing could be found in the concurrent findings of the two Courts below to warrant interference by this Court in revisional jurisdiction. Consequently, the Revision Petition is dismissed in limine.
MM/157/P Revision dismissed.