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(a) Punjab Pre‑emption Act (I of 1913)‑‑

‑‑‑Ss. 15, 21 & 4‑‑Vendee, by virtue of sale‑deed was given physical possession of specific Khasra numbers comprising a joint Khata‑ Documents on record establishing that at the time of sale there was exclusive physical possession of the vendor on land in question‑ Decree‑holder had set up his claim to have possession of the land which was in ownership and possession of the vendor‑‑Successful pre‑emptor, held, would be substituted for vendee vis‑a‑vis the physical possession of suit land‑‑Vendee's claim as co‑sharer and tenant was conclusively negated which position had already attained finality and such claim thus could not be re‑agitated and pressed into service for defeating the decree intending delivery of physical possession to the decree holder.

(b) Punjab Pre‑emption Act (I of 1913)‑‑

‑‑‑Ss. 21 & 4‑‑Civil Procedure Code (V of 1908), 0. XXI, R.35, O.XX, R. 14 & S. 47‑‑Joint Khata‑‑Holding of physical possession of particular Khasra numbers comprising a Joint Khata by means of Hissadari Kasht‑‑Land so, held, by a co‑sharer can be sold by him resulting in vendee being validly conveyed title thereto subject to adjustment on partition‑‑Delivery of only symbolic (proprietary) possession to the decree‑holder by allowing the judgment‑debtor to continue with the physical possession is plainly contrary to the true intent of the decree in a pre‑emption suit‑‑Until delivery of physical possession takes place in favour of successful pre‑emptor, vendee continues to hold possession as judgment‑debtor and as such there could be no question of any other status being attributable to him as regards land in dispute‑‑Contention that execution proceedings were motivated in order to bye‑pass partition proceedings or ejectment proceedings on the revenue side was also devoid of force.

(c) Civil Procedure Code (V of 1908)‑‑

‑‑‑S. 47‑‑Punjab Pre‑emption Act (I of 1913), Ss. 21 & 4‑‑Decree, execution of‑‑Duty of the executing Court‑‑Power of execution of decree includes the power to construe decree in order to determine its true intent‑‑Reference to pleadings, documents and judgment by executing Court‑‑Permissibility.

The power of execution of decree includes the power to construe the decree in order to determine its true intent.

The above principle will hold good notwithstanding the fact that the exercise involves appraisal of evidence on record of even production of fresh evidence especially when a separate suit is barred under section 47 of the Code of Civil Procedure. After all how can an Executing Court execute a decree without determining its intent and import by a process of construction.

The Executing Court acted fully within the ambit of its jurisdiction while taking into consideration the pleadings and documents on record viz. Khasra Girdawaris and allowing fresh material to be placed before it, for example the Register Haqdaran Zameen in order to determine the true intent of the decree so as to effectually implement it.

No doubt the Executing Court cannot go behind the decree for that matter, it is also beyond question that the Court executing a decree cannot alter, vary or add to the terms of the decree under the guise of executing the same, but then it is equally beyond dispute that where the decree calls for a clarification as to its intent a reference to the. pleadings and judgment is legitimate by the Executing Court. It may further be added that if the judgment and decree sought to be executed is based upon reference to some other documents then reference to such documents by the Executing Court would also be permissible in order to understand what the decree really means. In fact the Executing Court is entitled, and bound to construe the decree of which execution has been sought for. Otherwise it might result in unnecessary multiplicity of proceedings. It is the duty of the Executing Courts to ensure that finality attaching to the result of litigation is preserved, of course, by remaining within the bounds of law.

(d) Civil Procedure Code (V of 1908)‑‑

‑‑‑(. 47 & O.XXI, R.35‑‑Punjab Pre‑emption Act (I of 1913), Ss. 21 & 4‑‑Execution of decree‑‑Second application for execution‑‑When maintainable‑‑Where the symbolic possession which had been given to the decree‑holder was not sufficient and the decree‑holder complained that he was entitled to actual physical possession under the decree, decree‑holder, held, would be perfectly within his right to come to the Court for having his remedy‑‑Court, in such a situation, is not only empowered but is also bound to undo or rectify its mistake or mistake of any officer of the Court to avoid miscarriage of justice‑ Where, therefore, execution originally carried out was inchoate in nature, there could be no valid objection against the move made by decree‑holder for securing complete execution.

The bar against second application is not absolute and is plainly not applicable to a case where the proceedings on the original application remained deficient and inchoate and in the second place such application cannot be validly described as a fresh formal execution application. In fact, in the attendant circumstances of the case, it was a continuation of the original application proceedings which were misdirected on account of some confusion/ mistake on the part of the Executing Officer namely Girdawar. The execution carried out under the original application was deficient and remained to be perfected

for which a motion could be made to the concerned Court as the delivery of symbolic possession in the first instance by the Girdawar was not on the request of the decree‑holder who had in the execution application prayed for possession in pursuance of the decree. It was, therefore, for the Court and the executing official to have seen what the decree intended. If for actual physical possession symbolic possession was only delivered it was wrongly done by the Court/official concerned for which the decree‑holder could not be made to suffer. If the symbolic possession which has been given to the decree‑holder was not sufficient and the decree‑holder complained that he was entitled to actual physical possession under the decree he would be perfectly within his right to come to the Court for having his remedy. There can, therefore, hardly be any doubt that in such a situation the Court is not only empowered but is also bound to undo or rectify its mistake or mistake of an Officer of the Court to avoid miscarriage of justice.

Where the execution originally carried out was inchoate in nature, there could be no valid objection against the move made by the decree‑holder for securing complete execution.

The proceedings taken by the Executing Court for the purpose of delivery of physical possession in the case were unexceptionable.

Jagdish Nath Roi v. Nafar Chandra Paramanik A I R 1931 Cal. 427 and Miru and Biru v. Noor Muhammad etc. P L D 1949 Lah. 361 ref.

Khurshid Hassan Mir for Petitioner.

Dr. G.S. Khan and Muhammad Munir Paracha for Respondent. Date of hearing: 13th June, 1987.

This revision under Section 115 C.P.C. calls in question judgment dated 15‑6‑1982 delivered by the learned District Judge, Jhelum upholding the order dated 20‑12‑1981 passed by the learned Civil Judge, Pinddadankhan, District Jhelum.

2. The facts necessary for the purposes of this revision, briefly stated, are that the respondent assailed the sale made by his father Ghulam Ahmad in favour of the petitioner in respect of agricultural land measuring 24 kanals situate in village Mahal Barani Tehsil Pinddadankhan, District Jhelum as detailed in the plaint through a suit for possession by pre‑emption of the sale in question. The suit was instituted by the respondent‑decree holder through his mother as he was minor at that time. It was decreed by the learned Civil Judge Pinddadankhan by his judgment dated 15‑3‑1979.

Appeal preferred by the petitioner‑judgment‑debtor against the aforesaid judgment and decree of the trial Court failed and was dismissed by the learned District Judge, Jhelum by his judgment dated 19‑2‑1981.

The judgments afore‑mentioned were not further agitated against by the petitioner‑judgment debtor. In those judgments on the issue of superior right of pre‑emption the defence put up by the petitioner that he had a superior right being a tenant in possession of the land in dispute was rejected and it was held that the petitioner had not been able to establish that he was tenant in possession of the land before the sale was effected. His plea that he was a co‑sharer was also rejected. '

The respondent‑decree holder made an application for execution of the decree mentioned above on which warrant was issued by the Executing Court for delivery of possession. The Girdawar, however, in execution of the aforesaid warrant delivered proprietary i.e. symbolic possession on 18‑5‑1981. The factum of delivery of the said possession was reduced into writing which was singed by the respondent‑decree holder who it is stated had by then become major. On the report of the Girdawar that the decree had been satisfied. The Executing Court by its order dated 18‑6‑1981 disposed of the Execution Application.

The respondent‑decree holder thereafter made another application before the learned Executing/trial Court on 2‑9‑1981 that the warrant had not been executed in accord with the direction(s) given therein and that direction be issued for delivery of actual physical possession to the respondent.

The application was resisted by the present petitioner by asserting that he had purchased a share in an unpartitioned khata and as the decree was also for giving possession of the unpartitioned khata the respondent could not get physical possession unless the partition was effected between the co‑owners through the Revenue Court.

The other objection was that the respondent was trying to get the petitioner‑tenant evicted from the land through execution proceedings instead of resorting to the Revenue Court for the purpose.

The third objection raised was that the respondent having once obtained symbolic possession through execution application, the petitioner had become his tenant by operation of law and therefore he (respondent) was only entitled to the share in the produce and instead of getting him (petitioner) evicted through the Revenue Court, he was using the present proceedings for his (petitioner's) ejectment.

The learned Executing/trial Court, by its order dated 20‑12‑1981, held that the execution had not been carried out in accord with the warrant and that actual physical possession should have been delivered. It accepted the application of the respondent and by order dated 20‑12‑1981 directed issue of warrant for Qabza Kalbarani i.e. delivery of physical possession.

Aggrieved by the above‑mentioned order the petitioner preferred an appeal to the learned District Judge, Jhelum inter alia contending that he was a co‑sharer in the joint khata and was in possession thereof as such and therefore, the respondent was not entitled to get physical possession unless the khata was partitioned and that the execution application having been disposed of no further proceedings thereon could be initiated. This appeal was, however, dismissed by the learned District Judge on 15‑6‑1982.

Hence the present revision.

3. The learned counsel for the petitioner raised the following contentions:

(i) that the orders of the Courts below are based on' presumptions which do not find support from the record. The learned counsel gave following two examples in this regard:

(a) that the Courts below erroneously presumed that the original sale conveyed specific Khasra numbers possession whereof was delivered to the vendee hence under the decree he is bound to deliver actual physical possession thereof to the pre‑emptor respondent, and

(b) they also erred in giving the finding that the vendee‑petitioner having failed to prove that he was tenant on the sold land at the time of sale it is to be inferred that his possession on the land in dispute is only in his capacity as a vendee which he is bound to

restore to the respondent‑ pre‑emptor.

The learned counsel argued that the possession of the vendee petitioner could be as a trespasser if not as a tenant or co‑sharer as claimed by him;

(ii) that the second application of the respondent for execution of the decree was not maintainable inasmuch as symbolic possession in pursuance of the first execution application having been delivered to him, no second application was competent in law. Reliance in this regard was placed on Jagdish Nath Roi v. Nafar Chandra Paramanik reported as A I R 1931 Cal. 427;

(iii) that symbolic possession having "been handed over to the respondent with his consent the asking of physical possession by him is with ulterior motive to have partition of the joint khata and/or to evict the petitioner who is a tenant on the land;

(iv) that the Executing Court cannot go. behind the decree which principle was violated by the Courts below by consulting the Revenue record not originally on the file of the trial Court and with reference thereto in executing the decree; and

(v) that the impugned orders of the Courts below also suffer from an infirmity in that no specific Khasra numbers have been mentioned in these orders which were in actual possession of the vendor and of which he delivered possession to the petitioner‑ vendee.

4. On the contrary, the learned counsel for the respondent contended,

first,

that no second execution application had been filed by the respondent but only a miscellaneous application was submitted complaining that the respondent has only been given symbolic possession instead of actual physical possession to which he was entitled as the petitioner was in occupation of the land in dispute as a vendee. Alternatively it was urged that even a second execution application was competent as held in Miru and Biru v. Noor Muhammad etc. reported as P L D 1949 Lah. 361;

secondly,

that the vendor was in actual physical possession of specific Khasra numbers as is apparent from the record of the trial Court viz. Khasra Girdawaris Ex.P.2 and Ex.P.3 which clearly establish that out of Khatoni No.695 Ghulam Muhammad vendor was in exclusive physical possession of Khasra Nos. 2378, 2379, 2392 and 2396, measuring 9 Kanals 11 Martas, and out of Khatoni No. 698 he was in exclusive physical possession of Khasra Nos. 2382, 2383, 2397, 2399 and 2436 measuring 13 Kanals 7 Marlas, which makes a total of 22 kanals 18 marlas as against the land in dispute measuring 24 Kanals. The Executing Court, it was urged, did not therefore go behind the decree or consulted documents not available on record;

thirdly,

that the claim of the petitioner even in the appeal out of which the present revision has arisen was that he was in possession of the land as a co‑sharer/ tenant which is a wholly untenable plea in view of a contrary finding given by the Court which passed the decree and which finding was upheld in appeal and the same having not been further challenged had attained finality.

In the same context the learned counsel for the respondent urged that allegation against the respondent that he was trying to have the khata partitioned or have ejectment of the petitioner who is a tenant on the land, in the above circumstance, is wholly unwarranted;

fourthly, '

that the plea that the petitioner could be said to be a trespasser is an afterthought and has been for the first time set up in this Court only; and

lastly,

that even according to the reply filed to the alleged second execution application made by the respondent, the petitioner is only claiming possession on the basis of his being a co‑sharer which, as already submitted above, has been held to be an incorrect assertion.

5.Having regard to the substance of the respective contentions of the parties raised as noted above the following questions emerge for consideration:

(1) Whether according to the decree physical possession of the suit property was required to be given to the decree holder

(2) Whether the petitioner‑ vendee's claim as co‑sharer or tenant is tenable in execution proceedings and can operate as a bar against delivery of physical possession in execution

(3) , In the face of the fact that the petitioner's claim as a tenant and co‑sharer has been negated would he occupy the position of a trespasser and consequently would not be amenable to execution proceedings as pleaded by his learned counsel

(4) Whether the execution Court could entertain the application of the respondent dated 2‑9‑1981 which was in fact aimed at securing execution of decree according to its true intent by delivery of physical possession when symbolic possession had been delivered and

(5) Whether there is any legal bar against the execution Court taking proceedings to construe and determine the real intent of the decree for the purpose of proper execution on the basis of material already on record or by allowing corroborative fresh material to be produced

6. Taking into consideration questions Nos. (1) and (2) formulated above conjointly, it may be observed that it is not deniable that by virtue of the sale in question the vendee was given physical possession of specific Khasra numbers comprising a joint Khata. The documents on record of the trial Court pointed out by the learned counsel for the respondent viz. Khasra Girdawaries Ex. P.2 and EX,P.3 do establish that at the time of sale there was exclusive physical possession of the vendor on 22 Kanals and 18 marlas of land comprising Khatoni Nos.695 and 698. Again, in para 2 of the plaint, the respondent‑decree holder had set up his claim to have possession of the land in dispute mentioned in the heading of the plaint which was in the ownership and possession of the vendor. That being so, the successful pre‑emptor, respondent herein shall be substituted for the vendee via‑a‑via the physical possession of the suit land.

7. The vendee's claim as co‑sharer and tenant was conclusively negated which position has already attained finality. The said claim g cannot therefore be re‑agitated and pressed into service for defeating the decree intending delivery of physical possession to the decree holder.

It is well‑settled that a co‑sharer can hold physical possession of particular Khasra numbers comprising a joint khata by means of what is popularly known as Hissadari Kasht and the land so held by a co‑sharer can be sold by him resulting in the vendee being validly conveyed title thereto subject to adjustment on partition. In the above view of the matter delivery of only symbolic (proprietary) possession to the decree holder by allowing the judgment debtor to continue with the physical possession is plainly contrary to the true intent of the decree in the instant case.

8. The power of execution of decree indisputably includes the power to construe the decree in order to determine its true intent. This power is clearly within the purview of Section 47 of the Code

of Civil Procedure which reads as follows:‑

"All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit."

The above principle will hold good notwithstanding the ,fact that the exercise involves appraisal of evidence on record or even production of fresh evidence especially when a separate suit is barred under section 47 of the Code of Civil Procedure. After all how can

an Executing Court execute a decree without determining its intent and import by a process of construction.

I would therefore hold that the Executing Court in the instant case acted fully within the ambit of its jurisdiction while taking into consideration the pleadings and documents on record viz. Khasra F Girdawaris and allowing fresh material to be placed before it, for example the Register Haqdaran Zameen in order to determine the true intent of the decree so as to effectually implement it.

9. Before parting with this aspect of the matter, it may be observed that no doubt the Executing Court cannot go behind the decree as urged by the learned counsel for the petitioner or, for that matter, it is also beyond question that the Court executing a decree cannot alter, vary or add to the terms of the decree under the guise of executing the same, but then it is equally beyond dispute that where the decree calls for a clarification as to its intent a reference to the pleadings and judgment is legitimate by the Executing Court. It may further be added that if the judgment and decree sought to be executed id based upon reference to some other documents then reference to such documents by the Executing Court would also be permissible in order to understand what the decree really means. In fact the Executing Court is entitled, and if I may say so, bound to construe the decree of which execution has been sought for. Otherwise it might result in unnecessary multiplicity of proceedings. At the cost of repetition therefore I may emphasize that it is the duty of the Executing Courts to ensure that finality attaching to the result of litigation is preserved, of course, by remaining within the bounds; of law.

As regards the above noted third formulation, I am of the view that the petitioner's plea that he is a trespasser on account of the rejection of his claim as a co‑sharer and as a tenant is manifestly fallacious. The fallacy lies in the omission to notice that until delivery of physical possession takes place in favour of successful pre‑emptor (respondent) the petitioner (vendee) continues to hold possession as vendee‑judgment debtor and as such there can be no question of any other status being attributable to him as regards the land in dispute. Consequently the suggestion that the execution proceedings were motivated in order to bypass partition proceeding or ejectment proceedings on the revenue side is also devoid of force. This plea otherwise also is an afterthought as rightly urged by the learned counsel for the respondent.

The only question which remains to the dealt with now is whether the application dated 2‑9‑1981 was barred in law and was hit by the rule prohibiting second execution application It may be observed, in the first place, that the bas against such an application is not absolute and is plainly not applicable to a case where the proceedings on the original application remained deficient and inchoate as in the instant case, and in the second place the application dated 2‑9‑1981 cannot be validly described as a fresh formal execution application nor was it purported to be so. In fact, in the attendant circumstances of the case, it was a continuation of the original application proceedings in which were misdirected on account of some confusion/ mistake on the part of the Executing Officer namely Girdawar. The execution carried out under the original application was deficient and remained to be perfected for which a motion could be made to the concerned Court as the delivery of symbolic possession in the first instance by the Girdawar was not on the request of the decree holder who had in the execution application prayed for possession in pursuance of the decree. It was therefore for the Court and the executing official to have seen what the decree intended. If for actual physical possession symbolic possession was only delivered it was a wrong done by the Court/official concerned for which the decree holder could not be made to suffer. Whether such an application is competent and could be made by a decree‑holder is also inferable from the judgment cited by the learned counsel for the petitioner himself viz. A.I.R. 1931 Cal. 427 wherein it has been held that if the symbolic possession which has been given to the decree holder was not sufficient and the decree‑holder complained that he was entitled to actual physical possession under the decree he would be perfectly within his right to come to the Court for having his remedy although in the attendant circumstances of the cited case on account of some ulterior motive of the decree‑holder the second application was held to be not competent. There can, therefore, hardly be any doubt that in such a situation the Court is not only empowered but is also bound to undo or rectify its mistake or mistake of an officer of the Court to avoid miscarriage of justice.

Thus, having regard to the realities of the instant case there can be no escape from the conclusion that the execution originally carried out was inchoate in nature and therefore there could be no valid

objection against the move made by the respondent for securing complete execution.

10. In view of the foregoing discussion and having taken into consideration all aspects of the matter I am of the firm view that the proceedings taken by the Executing Court for the purpose of delivery of physical possession in the instant case were unexceptionable.

11. Resultantly this revision has no merit and it is accordingly dismissed with costs.

M . B . A . / M‑311 / L Revision dismissed.

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