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Civil Revision No. 697/8 and Civil Miscellaneous Nos. 2160 and 2161‑C of 1981, decided on 14th June, 1981.

‑‑ S. 21 read with West Pakistan Consolidation of Holdings Ordinance (VI of 1960), S. 16‑Pre‑emption‑Execution of decree‑Judgment -debtor in a pre‑emption decree in consolidation proceedings allotted any property in lieu of property to which decree relates, former can be claimed by pre‑emption‑decree‑holder as a matter of right‑Execution of such right by judgment‑debtor‑Not dependent on his observing any formality such as securing amendment of decree or of plaint filed in suit giving rise to decree.‑[Decree].

Rashida Begum and another v. Ghulam Farid Shah and another P L D 1973 Lah. 637 rel.

‑ S. 21 read with West Pakistan (Consolidation of Holdings) Ordinance ‑(VI of 1960), S. 16‑Pre‑emption‑Execution of decree‑Suit land exchanged with some other land in consolidation proceedings Contention that while identifying land for purpose of executing decree, executing Court failed to keep in view ratio of land of different classes allotted to petitioner while consolidating his landed property including land pre‑empted‑Contention not supported by record and also not raised before appellate Court‑High Court, held, would not look into it especially when order of executing Court not appearing to suffer from any legal defect and appellate Court finding existence of no dispute on point.‑[Decree].

------S. 115‑Revision‑Plea involved being a mixed question of law and fact and not advanced before two Courts below, held, not to be examined by High Court in revision.‑[Decree].

N. Pervez Ahmad Butter for Appellant.

Nemo for Respondent.

The respondent, Muhammad Bashir, filed a suit against the petitioner, Muhammad Akmal, for possession of certain land through. pre‑emption. The suit was decreed whereupon the respondent took out execution proceedings in regard to land other than the land in respect of which the decree was passed inasmuch as the former was allotted to the petitioner in lieu of the latter as a result of consolidation proceedings. The objection raised by the petitioner was that since the lands of which the possession was sought by the respondent was not mentioned in the plaint or in the decree granted to the respondent he was not entitled to secure its possession. This plea was repelled by the executing Court and it was directed by that Court that the respondent would get possession of the land which had been allotted to the petitioner in lieu of the land mentioned in the decree. The order of the learned executing Court in this behalf was challenged by the petitioner by means of an appeal before an Additional District Judge, but without success. He has, therefore, come up in revision to this Court.

2. Learned counsel for the petitioner contended that the respondent could not get possession on the land given to the petitioner as a result of consolidation operation without securing amendment of the decree passed in his favour. He cited Rashida Begum and another v. Ghulam Farid Shah and another (P L D 1973 Lab. 637) in support of his argument.

3. In the cited cage, the decree‑holder had prayed for amendment of the decree passed in a pre‑emption suit with a view to substituting the land appearing in the decree by the one which had been allotted to the judgment/ debtor in consequence of consolidation proceedings. The amendment was refused 'by the trial Court bur it was allowed by the High Court. It was, however, not ruled in the case under report that if no such application for amendment had been made, the land allotted to the judgment‑debtor as aforesaid could not be followed for giving effect to the pre‑emption decree passed against him. The case of Mst. Rashida Begum and another, therefore, does not support the proposition put forth by learned council for the petitioner that it was necessary for the respondent to secure amendment of the decree before claiming possession of land obtained by the petitioner in consequence of consolidation operation.

4. The principle enunciated in the case realised upon by the learned counsel was that if the vendee gets certain property in lieu of the property involved in a pre‑emption suit brought against him, the former can be taken possession of by the pre‑emptor in the event of his (pre‑emptor's) success in the suit. Relevant observations made in this connection read as follows :‑‑

"If during the pendency of the suit any property is transferred by the defendant‑vendee by sale or exchange there can be no doubt that on account of the principle of his pendens it will be open to the pre‑emptor decree‑holder to execute his decree against the subsequent alienee also although he might not have been impleaded as a party to the suit. The alienation does not destroy the right of pre‑emption of the pre emptor and is really subject to such eight. As held in tile case of Qaim Din even the Consolidation of Holdings Ordinance does not destroy the Pre-emption and tile allotment of property made under that Act will be subject to that right at least to the extent that the property‑ obtained in lieu of pre‑emptible property will be subject to the right of substitution of the pre‑emptor for the vendee who has become vested of ownership rights to that land by virtue of section 16 of the Consolidation Ordinance. The property in the hands of the vendee can in this manner be followed by the pre‑emptor."

1, with respect, share the view that consolidation proceedings do not destroy right of pre‑emption and that if as a result of such proceedings the judgment debtor in a pre‑emption decree is allotted any property in lieu of the property to which the decree relates. the former can be claimed by pre‑emptor‑decree holder as a matter of right. The exercise of that right by the judgment‑debtor, to my mind, is not dependant on his observing any formality, such a securing amendment of the decree, or of the plaint filed in the suit given rise to the decree, so as to substitute the land mentioned therein by the land obtained by the judgment‑debtor in consequence of consolidation operation.

In this view of the matter, I do not agree with the learned counsel that the land allotted to the petitioner by the consolidation authorities in lieu of the land figuring in the decree, passed in favour of the respondent and against the petitioner, could not be taken possession of by the respondent in execution of the decree without seeking amendment of the decree so as to replace the land specified therein by the land so allotted to the petitioner.

5. The next submission made by the learned counsel was that while identifying the land for the purpose of executing the decree in question the learned executing Court had not kept in view the ratio of the land of different classes allotted to the petitioner while consolidating his landed property including the land pre‑empted by the respondent in the present case. This contention is not supported by the record because in his impugned order the learned executing Court had, while chasing the land allotted to the petitioned in lieu of the pre‑empted land, done the necessary exercise in the light o classification of land as done by the‑ consolidation authorities. Moreover,, the plea touching that classification was not raised before the learned appellate Court. Therefore, I am not inclined to look into it especially when the order of the learned executing Court in the matter does not appear to suffer from an legal defect and it eras also observed by the learned Additional District Judge that there was no dispute on the point that the land of which the possession was allowed to be given to the respondent was the same which was allotted to the petitioner in lieu of the land ,involved in his suit.

6. Lastly, it was urged by the learned counsel that the order made by the learned executing Court had the effect of ordering partition of the fan which could not be partitioned in view of the provisions of the Land Reform C Regulation, 1972. 'this plea involves a mixed question of law and fact an since it wag not advanced before the two Courts below, I would not like t examine it in connection with the revision petition in hand.

7. The upshot .of the above discussion is that the order under revision does not call for any interference. The revision petition is, therefore, dismissed in limine.

M. Y. H. Petition dismissed.