ALLAH DITTA vs AHMED ALI SHAH and others

1. ' MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court has been preferred against the judgment, dated 20-7-1994 passed by a learned Judge in Chambers of Lahore High Court in exercise of the revisional jurisdiction in a matter arising out of execution proceedings.

2. ' The relevant facts leading to this appeal are that Ahmed Ali Shah, respondent No,1 herein, purchased the evacuee property measuring 2 Kanals, 5 Marlas, bearing No,1520 situated in Mohallah Paganwala, Kamalia in auction from the Settlement Department in the year 1968 and transfer deed was issued in his favour on 16-7-1969 on the basis of which mutation was attested as per the Revenue Record in February, 1974. Syed Ahmed Ali Shah respondent No,1 herein filed a suit for possession of said property in 1983 against Pehlwan respondent No,2 in the present appeal, who allegedly having occupied the suit property in the absence of respondent No,1 was holding its possession forcibly. The suit, was resisted by respondent No,2 during the proceedings, the learned trial Judge appointed a Local Commission to inspect the spot and submit the report. The Local Commission found that Pehlwan was in possession of 22 Marlas of land and an area of 23 Marlas of land was in possession of one Malik Bashir. The learned Civil Judge in the light of the report of Local Commission, decreed the suit vide judgment, dated 3-10-1991. Syed Ahmed Ali Shah then filed a petition for execution of decree and during the execution proceedings, Allah Ditta the present appellant, filed an objection petition that 22 Marlas of land in his possession was transferred to him by A.D.C. (G) vide order, dated 17-11-1986 and in pursuance of the allotment, a mutation was also entered on 28-2-1988 in his favour in the Revenue Record. The bailiff who was deputed by the Court for execution of warrant of possession submitted report that Allah Ditta objector, was in possession of 22 Marlas of land at the spot. The appellant in the light of report of bailiff moved an application to the Collector for review of the mutation, dated 21-2-1974 attested in favour of Syed Ahmed Ali Shah taking the plea that the land transferred to him was different to that of the land purchased by Syed Ahmed Ali Shah in auction. The Collector in view of the report submitted by the subordinate Revenue Officials, accorded permission for review of the mutation in question. However, the executing Court dismissed the objection petition of Allah Ditta appellant vide order, dated 3-10-1991 and further appeal preferred by him was also dismissed by the learned Additional District Judge vide judgment, dated 15-11-1992. The appellant then invoked the revisional jurisdiction of the High Court through a petition under section 115, C.P.C. Which also failed and was dismissed by the learned Judge in Chambers of Lahore High Court vide impugned judgment.

3. ' Leave was granted in the present appeal vide order, dated 31-1-1996 which is read as under:-- "In support of this, petition it is inter alia contended that respondent No,1 had nothing to do with the property under his occupation and that no serious effort had been made to locate the plot purchased by respondent No,1 from the Settlement Authorities. It is also pointed out that according to the record maintained by the Municipal Committee, Kamalia, for the year 1945-46, Plot No,1520 was not even evacuee property as it belonged to one Pir Bakhsh son of Farid, Kharal. As such it did not form part of the compensation pool and could not be transferred to respondent No,1.

4. ' The contentions raised in support of this petition need examination. Leave to appeal is granted."

5. ' Learned counsel for the appellant has contended that the appellant was transferred evacuee land measuring 1 Kanal, 2 Marlas, in Square No,141, Killa No,2/1 situated in Kamalia vide order, dated 19-10-1987 which was in possession of one Bashir Ahmed son of Umer Din and that it was not forming part of property bearing Plot No,1520 transferred to Ahmed Ali Shah. Learned counsel contended that as per record of Settlement Departmeht, Plot No,1520 allotted to respondent No, was different to that of land of Khasra No,141/2/1 transferred to Allah Ditta and these two properties being of independent entity have no nexus to each other and the Executing Court as well as the Appellat Court and also the High Court without attending to this important question dismissed the objection petition of the appellant. Learned counsel representing the respondents on the other hand, contended that statements of the parties were recorded by the Local Commission and it was stated by the appellant in his statement that he was given rights of ownership and possession by Malik Bashir in presence of A.D.C. (0) and that he had not forcibly taken the possession of the land and that he admitted that house was constructed thereon by Ahmed All Shah respondent. It was argued by the learned counsel that Allah Ditta was not in possession of land before the alleged allotment rather he obtained the possession of the property from Malik Bashir and thus would have no right to resist the execution of the decree and retain possession of the property on the ground that he was in possession in his own independent right.

6. ' We have heard the learned counsel for the parties at length and having perused the record with their assistance find that three Courts have concurrently rejected the claim of appellant of being in possession of the suit property in his own independent right Syed Ahmed Ali Shah respondent admittedly purchased land from the Settlement Department in 1968 in auction and transfer deed was issued in his name in 1969 and nothing was brought on record to show that the land in possession of appellant was allotted to him in 1987 and that it was a different portion of land. The perusal of record would show that the property subject-matter of dispute was not available for transfer after 1968 and thus the very foundation of the claim of the appellant would fall to ground.

7. In any case, the question whether the property transferred to the appellant was different to that of the property in possession of Syed Ahmed Ali Shah or not has been extensively dealt with by the three Courts and verdict was given in favour of Syed Ahmed Ali Shah, therefore, it is not possible for this Court to reopen this factual controversy through appraisal of evidence and upset the concurrent findings of facts given by three Courts and moreso we having perused the record find that said finding was not suffering from any legal or factual infirmity. The learned counsel for the appellant when was confronted that why the appellant preferred to file objection petition instead of availing the proper remedies available to him under the law for the relief being sought in the objection petition, he submitted that appellant was not impleaded as a party in the suit filed by Syed Ahmed Ali Shah and he only came to know about the decree obtained by said Syed Ahmed Ali Shah in respect of the property in his possession during the execution proceedings, therefore, he filed objection petition to resist the execution against his property. We are afraid the appellant on coming to know about the decree in addition to the filing of objection petition could also avail the appropriate remedy of moving the trial Court for setting aside the decree which was passed without impleading him as party and could also avail the remedy of appeal against the judgment and decree passed in the suit and yet he had another option of filing an application under section 12(2), C.P.C. If the decree was found to have been obtained through misrepresentation. This is an established rule that Executing Court cannot extend its jurisdiction to go behind the decree and question of its correctness except in a case in which decree is silent that what property was subject-matter of execution. The Executing Court can look into the judgment in order to find out that property brought for the satisfaction of decree actually belonged to the judgment-debtor but cannot entertain an objection relating to the dispute e title and its determination which may change and alter the terms of decree. However, in a case in which it is not possible to execute the decree, the Executing Court is empowered to reject the execution application and allow the defect to be remedied. The objection of the appellant that he was in possession of a different property and that without proper identification and demarcation of the two properties, the decree would not be executable against the property in his possession has been properly scrutinized and we without taking any exception to the concurrent finding of fact, uphold the order passed by the High Court in revision petition.

8. ' For the foregoing reasons, this appeal fails which is dismissed with no order as to costs.