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Civil Revision No. 193 of 1954, decided on 28th January 1955.
S. 47-Decree for possession by pre-emption-Execution allowed to become time barred--Separate suit for possession does not lie.
A decree for possession by pre-emption was not executed within 3 years and the decree-holder brought a suit for posses sion of the land after a lapse of about 10 years since his pre emption decree.
Held, that the suit was barred under section 47 C. P. C. as well as by reason of the fact that the possession of the property not having been obtained under the decree, the decree became completely inoperative, and did not confer any title upon the decree-holder.
Ramanand and others v. Jai Ram and otheres I L R 43 p. 170 ref.
Abdul Latif Khan, for Petitioners.
Ali Aqdas, for Respondents.
-By mutation No. 3804, attested on 1st February 1942, Said Ahmad sold 11 kanals 1 marla of land bearing Khasra No. 4662, in favour of one Ajun Khan. On 11th January 1943, Wazir Muhammad brought a suit for possession by pre-emption of this land, which was decreed in his favour on 6th February 1943, on payment of Rs.100. Out of this amount Rs. 80 were already deposited in Court, which were paid to the vendee and the balance was paid to him on the 8th of February 1943. A mutation (No. 4135) on the basis of this decree was attested on the 11th of April 1943. Wazir Muhammad admittedly did not execute the pre-emp tion decree within the statutory period viz., three years. On 23rd February 1953, Wazir Muhammad instituted a suit for possession by redemption of 5 kanals of land out of 5 kanals 11 marlas, bearing Khasra No. 5511/4662, which is part of the Khasra number, for which he had been granted a decree for possession by pre-emption against the successors-in-interest of the said Ajun Khan. In the body of the plaint he alleged that after the decree for pre-emption had been granted in his favour for his land, the property by an unregistered deed had been mortgaged in favour of Ajun Khan for Rs. 150, which he wanted to redeem by this suit.
Sub-Judge 2nd Class Swabi, by his order dated 13th July 1953, dismissed this suit on the ground that no mortgage existed much less subsisted.
On 24th August 1953, Wazir Muhammad brought a third suit, for the possession of 5 kanals 11 marlas of land bearing Khasra No. 5511/4662, against the representatives of Ajun Khan, on the ground that after the decree for pre-emption had been granted in his favour, these defendants had taken forcible possession thereof since about six years.
This suit was dismissed by the learned trial Court, but on appeal the learned Senior Sub-Judge Mardan, by his order dated 10th May, 1954, decreed it with costs.
The wife and daughter of Ajun Khan, the original vendee, have now come up in revision to this Court, and the only ground which has been argued before me, and which requires determination is, whether this suit is maintainable in view of the fact that the prior decree for possession by pre-emption was not executed by the plaintiff Wazir Muhammad within three years, as provided by Article 182 of the Limitation Act.
In my view this suit is barred on account of two reasons (1) that section 47 C. P. C. comes in its way, and (2) that by l reason of the fact that the possession of the property was not A obtained under the decree, the decree became completely inoperative, and did not confer any title upon the decree holder.
Section 47 C. P. C., prohibits a separate suit for the determination of all questions arising between the parties to the suit in which the decree was passed, or their representa tives, and relating to the execution, discharge or satisfaction of the decree. The question whether a person is entitled to the possession of certain property or not under a certain decree is a question relating to either the execution or the satisfac tion of that decree, and for this a separate suit is obviously not competent. In this view I am fortified by an Allahabad authority Ramanand and others v. Jai Ram and others (43 I L R 170.) which is on all fours with the present case, and to the reasonings of which I very respectfully agree.
So far as the second ground mentioned by me above is concerned, if a certain person claims a certain property on the basis of a certain decree, then he must show that the decree is operative. If a decree for the possession of a certain property is not executed, then it ceases to by operative, and does not confer any title on the decree-holder, to make such a decree as the basis of another decree for the same relief.
From whatever point of view the present suit is looked at I think it is obviously unmaintainable.
I consequently accept this revision petition, set aside the judgment and decree, of the learned lower appellate Court, and restore those of the; trial Court with costs throughout.
A. H. Petition accepted.
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