2015 Y L R 127

2015 Y L R 127

[Peshawar]

Before Muhammad Daud Khan and Waqar Ahmad Seth, JJ

ARSHAD ALI and 3 others---Petitioners

Versus

SARTAJ and 8 others---Respondents

C.R. No.944-P of 2014, decided on 5th March, 2015.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O. XXIII, R, 3 -Limitation Act (IX of 1908) Art. 183---Execution of consent decree-Scope---Plaintiff filed suit against defendants claiming that he was owner in possession of suit property on basis of gift deed dated 27-8-2002---Plaintiff alleged that sale deed dated 20-6-2002 executed by vendor/defendants in favour of vendee/defendants was illegal and that compromise made by defendants in suit filed earlier was result of fraud---Plaintiff filed an application under S.12(2) of C.P.C. in the earlier suit and sought for stay of proceedings in that suit till adjudication of the application---Application of plaintiff was dismissed by Trial Court against which appeal and revision were dismissed---Plaintiff filed an application for restoration of said suit---Vendee/Defendants filed application for rejection of plaint before Trial Court---Trial Court restored the suit and dismissed the same---Appeal against dismissal of suit was also dismissed---Revision was filed on grounds that compromise/consent decree in the earlier suit could have been put to execution within a period of three years, thus it had lost its effect and there was no subsisting decree in their favour; and consent decree in no circumstances could be equated with title decree conferring any title in favour of defendant since it had been passed to enforce agreement to sell through another registered deed---Further allegation was that no sale deed had been executed in pursuance to decree within prescribed time of six years, hence defendants could not be held owners of suit property---Validity---Consent decree passed in favour of vendee/defendants on basis of compromise had divested vendor/ defendants of all rights and liabilities and rights were transferred in favour of vendee/defendants---Ownership of vendee/ defendants remained intact even if decree was not put to execution---Limitation Act, 1908 merely barred remedy or assistance of court for execution but does not extinguish right or title based on decree---Trial Court and Appellate Court had rightly dismissed the suit---Revision was dismissed in circumstances.

            Muhammad Latif v. Bashir Ahmad and 7 others 2004 CLC 1010; Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; Sher Muhammad through legal heirs v. Member (Judicial) Board of Revenue and 4 others 2010 MLD 187; Mst.Hussain Bibi v. Siraj Din PLD 1998 Lah. 548 and Ahmad Khan through Legal heirs and others v. Ghulam Hussain and others 2007 MLD 857 rel.

            Mian Abdul Aziz Qureshi for Petitioners.

            Nome for Respondents.

            Date of hearing: 5th March, 2015.

JUDGMENT

            WAQAR AHMAD SETH, J.---Through this single judgment we propose to dispose of the instant Civil Revision No.944-P of 2014 as well as the connected Writ Petitions Nos. 3938-P, 3839-P, 3940-P, 3941-P, 3942-P, 3963-P, 3964-P, 3965-P and 3966-P of 2014 as common question of law and fact is involved in all these petitions.

2. CIVIL REVISION NO.944-P of 2014.
         
The facts of the instant Civil Revision are that Arshad Ali and his three brothers petitioners/plaintiffs have instituted suit (No.201/) against Sartaj and others, respondents/defendants for declaration to the effect that they were owners in possession of the suit property on the basis of gift deed dated 27/08/2002 and Mutation No.1182 dated 03/10/2002 and to declare the sale deeds dated 20/06/2002, deed Nos.108, 109 dated 17/09/2003 and deed No.110 dated 18/09/2003 in favour of respondents/defendants Nos.1 and 2 on behalf of respondents/defendants Nos.3 to 7 to be illegal and ineffective upon their rights and that the decree in civil suit No.28/1 of 2003 "Sartaj v. Mehr Muhammad" decided on 20/09/2003 was the result of fraud and ineffective upon their rights. Prayer for permanent injunction was also sought and in alternate decree for possession and for the recovery of Rs.48,00,000/- was also prayed for by the petitioners/plaintiffs. On their appearance in the trial Court, respondents/ defendants Nos.1 and 2 submitted an application for staying the proceedings till the decision of petition under section 12(2), C.P.C. filed by the plaintiffs/petitioners against the judgment and decree dated 20/09/2003 passed in Civil Suit No.28/1 of 2003 and vide order dated 03/01/2005 the proceedings in the suit were stayed till the decision of application under section 12(2), C.P.C. After recording pro and contra evidence the said application under section 12(2), C.P.C. was dismissed by the learned Senior Civil Judge vide his order dated 13/06/2005 which order was maintained up to the Apex Court where the appeal of the petitioners/plaintiffs was dismissed vide order dated 31/05/2012 with a special cost of Rs.50,000/-.
         
After the dismissal of appeal of the petitioners/plaintiffs before the Apex Court, they filed application for restoration of their suit No.20/1 stayed on 03/10/2005 while the respondents/defendants Nos.1 and 2 submitted an application for rejection/ dismissal of the plaint on the ground that they have become owners of the suit property on the basis of court decree in Civil Suit No.28/1 dated 20/09/2003 for specific performance of contract. After hearing the learned counsel for the parties, the learned Senior Civil Judge, Charsadda vide his judgment and decree dated 27/11/2013 restored the suit but also dismissed the same. The petitioners/ plaintiffs feeling dis-satisfied preferred an appeal bearing No.48/13 of 2014 which was dismissed by the learned District Judge, Charsadda vide his judgment and decree dated 11/09/2014. Hence the instant revision petition.

3. WRIT PETITION NO.3938-P TO 3942-P, 3963-P to 3966-P OF 2014.
         
Imtiaz Ali petitioner in all the nine writ petitions filed ejectment petitions under section 13 Urban Rent Restriction Ordinance, 1959 against Musawir, Momin and Azmat, Shah Amin, Sardar, Mujeeb, Mian Marifat, Ali, Sardar, Naeemud Din, Usman, Wajid Ali, Muhammad Ibrar, Zakir Shah and Masoodur Rehman respondents in all the petitions for their eviction from the suit shops in their respective possession situated at Mardan Road, Tehsil Bazar Charsadda. During the pendency of the petitions Sartaj Khan and Iqbal Hussain respondents have filed application for their impleadment in the eviction petition claiming to be owners and landlords of the suit property. They were impleaded as party and then they filed applications for rejection of rent petitions but the same were dismissed vide order dated 10/05/2011 which were challenged in writ petitions and the same were allowed and the matter was stayed till the disposal of Civil Petition No.1043 of 2009 before the Apex Court. This order was challenged by the petitioner in Civil Petition for leave to appeal. However the Civil Appeal No.1043 of 2009 was dismissed by the Apex Court, therefore, the petitioner has withdrawn his Civil Petition for leave to appeal. After dismissal of the aforesaid Civil Petition, the petitioner prayed for restoration of his ejectment petitions which were accordingly restored. The respondents Nos.3 and 4 on their appearance before the Rent Controller, submitted an applications for rejection/dismissal of ejectment petitions. After hearing the learned counsel for the parties, the learned Senior Civil Judge/Rent Controller, Charsadda accepted the applications and dismissed the ejectment petitions of the petitioner vide his judgment/order dated 27/11/2013. Dissatisfied with the aforesaid judgment/ order of the learned Rent Controller, the petitioner preferred appeals which also met the same fate vide judgment/order dated 11/09/2014 passed by the learned District Judge, Charsadda. Hence these writ petitions.

4. We have heard the learned counsel for the petitioner and have also gone through the materials placed on file.

5. Perusal of the record reveals that a civil suit bearing No.28/1 was instituted on 08/02/2002 by Sartaj Khan and Iqbal Hussain respondents Nos.1 and 2 herein against Mehr Muhammad father, Mst. Abida Begum mother, Arif Ali, Asghar Ali and Shehzad Ali brothers of the present petitioners (respondents Nos.3 to 7 for specific performance of contract of sale deed dated 18/06/2002 with respect to the suit property. The said suit was decided on the basis of compromise arrived at between the parties and to this effect statements of the parties were recorded on 20/09/2003 and the same was decreed in favour of respondents Nos.1 and 2 by the learned Senior Civil Judge, Charsadda vide his judgment and decree dated 20/09/2003. The petitioners/plaintiffs in the instant suit filed an application under section 12(2), C.P.C. against the aforesaid judgment and decree dated 20/09/2003 and during the pendency of the said application, the petitioners/ plaintiffs also filed suit bearing No.20/1 on 26/02/2004 against the respondents/ defendants and on appearing in the suit respondents/defendants Nos.1 and 2 submitted an application for staying the proceedings in suit No.20/1 till the final decision of the application of the petitioners/plaintiffs under section 12(2), C.P.C. which was accepted and the proceedings were stayed vide order dated 03/01/2005. After recording pro and contra evidence of the parties the application of the petitioners/plaintiffs under section 12(2), C.P.C. was dismissed by the learned trial Court vide judgment/order dated 13/06/2005 against which the appeal, revision of the petitioners/plaintiffs were dismissed up to the August Supreme Court of Pakistan. Finally Civil Appeal No.1043 of 2009 filed by the petitioners/plaintiffs was dismissed by the August Court with special cost of Rs.50,000/- vide judgment dated 31/05/2012 and the judgment and decree dated 20/09/2003 passed in favour of respondents/defendants No.1 and 2 by the trial Court in suit No.28/1 was remained in tact. After dismissal of Civil Appeal by the Apex Court, the petitioners/plaintiffs filed an application for restoration of their suit No.20/1 while respondents/defendants Nos.1 and 2 also filed an application for rejection/dismissal of their suit. The learned Senior Civil Judge, Charsadda vide his judgment and decree dated 27/11/2013 restored the suit but on acceptance of the application of respondents/defendants Nos.1 and 2 also dismissed the suit. The petitioners/plaintiffs preferred appeal which also met the same fate vide judgment and decree dated 11/09/2014 by the learned District Judge, Charsadda.

6. The only grievance of the petitioners/plaintiffs is that the decree dated 20/09/2003 passed in civil suit No.28/1 in favour of respondents/defendants Nos.1 and 2 could have been put to execution/ implementation by respondents/defendants Nos.1 and 2 within a period of three years, thus the same has lost its legal effect and there is no subsisting decree in their favour and the said decree in no circumstances could be equated with the title decree conferring any title in favour of respondents/defendants Nos.1 and 2. Since the aforesaid decree has been passed just to enforce the agreement to sell earlier executed in favour of respondents/ defendants Nos.1 and 2 through execution of another registered deed in their favour. Since the aforesaid registered deed has not been executed till date in their favour, therefore, the respondents Nos.1 and 2 cannot be held as owners of the disputed property and until the registered deed has not been executed in favour of respondents/ defendants Nos.1 and 2 on the strength of court decree dated 20/09/2003, the ownership/title shall remain vested in the previous owners and the respondents/ defendants cannot claim any title of the disputed property. Learned counsel for the petitioners/plaintiffs bitterly argued that by passing a prescribed time of six years, right conferred on the decree holder, if any, ipso facto stood extinguished. The said argument has no force. The decree dated 20/09/2003 passed in favour of respondents Nos.1 and 2 on the basis of compromise and the moment, defendants/judgment debtors in that suit made a consent before the trial Court, they have divested of all their rights and liabilities and the rights were transferred in favour of the respondents Nos.1 and 2/decree holders for all purposes. Ownership of the decree-holder remains intact even if the decree is not put to execution. Reference may be made to "Muhammad Latif v. Bashir Ahmad and 7 others (2004 CLC 1010). We are also fortified, in our view by "Mahboob Khan v. Hassan Khan Durrani" (PLD 1990 Supreme Court 778). In a case "Sher Muhammad through legal heirs v. Member (Judicial) Board of Revenue and 4 others (2010 MLD 187), it was also held, "Such decree was not required to be put to execution----ownership of decree-holder would remain intact even if such decree was not put to execution". In another case "Mst. Hussain Bibi v. Siraj Din" (PLD 1998 Lahore 548) it has been held that, "Limitation Act merely bars the remedy or assistance of Court for execution of the decree but does not extinguish the right or title based on the decree"

6. In the instant case a decree dated 20/09/2003 has been passed in favour of respondents/defendants Nos.1 and 2 which was challenged by the petitioners/plaintiffs through an application under section 12(2), C.P.C. up to the Apex Court where their Civil Appeal No. 1043/2009 was not only dismissed but they were also burdened with special cost of Rs.50,000/- and the said decree kept intact and thus the same had attained finality. The said decree in favour of respondents/ defendants Nos.1 and 2 creates title, regardless of the fact that no application for execution has been filed by respondents Nos.1 and 2. Reliance is also placed on "Ahmad Khan through legal heirs and others v. Ghulam Hussain and others: (2007 MLD 857).

7. In view of what has been discussed above, the learned two Courts below have rightly dismissed the suit of the petitioners/plaintiffs under Order VII Rule 11, C.P.C. which call for no interference by this Court in its revisional jurisdiction. Since the respondents Nos.1 and 2 have been held owners of the suit property through Court decree, therefore, the petitioners/plaintiffs have no right to file ejectment petitions against the persons occupying the property in dispute. Thus the connected ejectment petitions were rightly dismissed by the two Courts below.

8. Resultantly, the instant Revision Petition alongwith the connected writ petitions are dismissed in limine alongwith Interim Relief.

MM/140/P                                                                                           Revision dismissed.