IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Civil Revision No.S-137 of 2019
Applicants : Muhammad Alam & others, through
M/s Asim Iqbal, Salman Alam and
Vinod Kumar G. Jessrani Advocates.
Respondents : District Officer, Community Development, Larkana & others, through Mr. Abdul Waris Bhutto, Assistant Advocate General.
Date of hearing : 03-03-2023.
Date of decision : 03-03-2023.
O R D E R
Adnan Iqbal Chaudhry, J.- This revision application is against concurrent orders rejecting the plaint of the Applicants/Plaintiffs under Order VII Rule 11 CPC on the ground that F.C. Suit No. 65/2013 (old F.C. Suit No. 81/2012) was barred by Rule 103 of Order XXI CPC. Before that, in the first round, the suit had been decreed by the trial court, set-aside and remanded on appeal, the latter order having been sustained by this Court in Civil Revision No.51/2015. Thereafter, issues were settled by the trial court on 18-2-2019, but nonetheless the trial court was inclined to reject the plaint as aforesaid on the application of the Respondents/Defendants.
2. The facts leading to the impugned orders are as follows. Prior to F.C. Suit No. 65/2013, the predecessor of the Plaintiffs had filed F.C. Suit No.99/1981 (new F.C. Suit No.45/1991) for declaration of title to land i.e. 0.50 paisa share being 2-17½ acres out of 4-35 acres in Survey No. 53 of deh Lahori, Larkana, out of which 1-29 acres had been sold/transferred by Zaib-un-nisa to the Municipal Corporation Larkana, and 0-28 ghuntas was acquired by the latter from the former. Along with cancellation of the sale deeds of Zaib-un-nissa and the Municipal Corporation Larkana, that suit also prayed for possession of 2-17½ acres from the Municipal Corporation Larkana. Though dismissed by the trial court on 05-06-1994 and by the appellate court on 27-10-1997, the suit was eventually decreed by the High Court on 11-10-2004 in Civil Revision No.4/1998 which sustained before the Supreme Court in CPLA No. 877-K/2004 vide judgment dated 09-10-2006. The Applicants of present revision, as successors, filed Execution Application No. 01/2007 for a writ of possession of 2-17½ acres, upon which the Mukhtiarkar reported that a part of Survey No. 53 was an open plot, whereas the other part was constructed with the M.A. Khuhro Sports Complex. The Applicants thus filed F.C. Suit No. 65/2013 against the Sports Department, Government of Sindh (Respondents) for declaration and possession of the land with the Sports Complex, with a prayer for compensation for its use. As stated above, both the courts below were of the view that given the decree for possession already passed in F.C. Suit No.99/1981, the subsequent F.C. Suit No. 65/2013 was barred by Rule 103 of Order XXI CPC.
3. Heard the learned counsel and perused the record.
4. The procedure to deal with resistance to execution of a decree for possession of property is in section 74 CPC read with Order XXI, Rules 97 to 103 CPC. The scheme is that where the holder of a decree for the possession of immovable property, or the purchaser of such property sold in execution of a decree, is resisted or obstructed by any person in obtaining possession of the property, the decree holder or purchaser, as the case may be, ‘may’ make an application to the executing Court complaining of such resistance or obstruction, and the Court will then investigate the matter (Rule 97). If the executing Court is satisfied that the resistance or obstruction is without just cause by the judgment debtor or by some other person at his instigation, it shall direct that the applicant be put in possession, and if the taking of possession is still resisted, the Court can take coercive action (Rule 98). However, if the executing Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment debtor, the Court shall make an order dismissing the application (Rule 99).
5. Though the language of Order XXI Rule 97 CPC suggests that it is a remedy only for the holder of a decree for the possession of immovable property, or the purchaser of such property sold in execution of a decree, it was held by Justice Wajihuddin Ahmed, then speaking for this Court in Amiabai v. Ibrahim (PLD 1992 Karachi 270) that an enquiry under Rule 97 can also be invoked by a person other than the judgment debtor who claims to be in possession in his own right, and who apprehends dispossession by process of the executing Court but has yet to be dispossessed. Rules 100 and 101 then provide a remedy, also before the executing Court, to a person other than the judgment debtor who is actually dispossessed under Rule 98. It is then that Rule 103 of Order XXI CPC stipulates that: “All questions arising as to title, right or interest in, or possession of, immovable property between an applicant under Rule 97 and the opposite-party, or between an applicant under Rule 100 and the opposite-party, shall be adjudicated upon and determined by the Court, and no separate suit shall lie for the determination of any such matter.”
6. From the scheme discussed above it is apparent that the bar to a separate suit in Order XXI Rule 103 is attracted only where an application under Order XXI Rules 97 or 100 CPC is maintainable before the executing Court. That much was also observed in Amiabai v. Ibrahim (PLD 1992 Karachi 270). Insofar as a holder of a decree for possession of immovable property is concerned, the remedy under Rule 97 is available to him where he is contending that the judgment debtor or a person acting through him is resisting or obstructing the taking of possession under the decree. In F.C. Suit No. 65/2013, it was not the case of the Applicants that the Respondents came into possession of the subject land through the Municipal Corporation Larkana against whom the decree for possession had been passed in F.C. Suit No.99/1981. Rather, their case appears to be that from the Mukhtiarkar’s report it transpired to them that the Municipal Corporation Larkana was never in possession of the entire 2-17½ acres but only a part of it, which part was retrieved by the Applicants via Execution Application No. 01/2007. F.C. Suit No. 65/2013 was therefore filed with regards to 50,177 square feet, the part that had actually been in possession of the Sports Department, Government of Sindh independent of the Municipal Corporation Larkana. In other words, by F.C. Suit No. 65/2013, the Applicants did not seek to enforce the decree for possession passed in F.C. Suit No.99/1981. Mr. Asim Iqbal, learned counsel for the Applicants states so categorically and submits that is why notwithstanding said decree, the Applicants have separately sought a declaration of their title against the Respondents for the area of 50,177 square feet in possession of the Respondents.
7. In circumstances where the Applicants accept that the decree for possession passed in F.C. Suit No.99/1981 does not cover the 50,177 square feet in possession of the Respondents, I do not see how they will be able to maintain an application under Order XXI Rule 97 CPC before the Court that was executing that previous decree. Consequently, Order XXI Rule 103 CPC was not attracted and F.C. Suit No. 65/2013 was maintainable.
8. In view of the foregoing, this revision application is allowed. The impugned orders/decrees dated 13-4-2019 and 11-9-2019 passed respectively by the IV-Senior Civil Judge, Larkana in F.C. Suit No.65/2013, and by the III-Additional District Judge, Larkana in Civil Appeal No.71/2019, are set-aside, with the result that said suit stands revived and the application therein under Order VII Rule 11, CPC stands dismissed. The trial court shall decide the suit uninfluenced by the judgment/decree in F.C. Suit No. 99/1981.
JUDGE