Mst. Mureedan Mai etc. vs Shahid Hussain Khan etc.

Stereo. H C J D A-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN

BENCH, MULTAN

JUDICIAL DEPARTMENT

C.R. No.1484-D of 2014 Mst. Mureedan Mai & others

Versus

Shahid Hussain Khan, etc.

JUDGMENT

Date of hearing: 06.10.2026.

Petitioners by: M/s. Rana Muhammad Iqbal Noon, Abdul Salam Alvi and Mohsin Hanif, Advocates.

Respondents by: Mr. Muhammad Imran Bhatti, Advocate for respondent No.1.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through this revision petition, the petitioners have challenged the judgments and decrees dated 09.10.2012 and 05.11.2013 passed by learned Civil Judge 1st Class and learned District Judge, Bhakkar, respectively, whereby respondent No.1’s suit for possession under section 8 of the Specific Relief Act, 1877 was decreed concurrently.

2.Respondent No.1 filed a suit for possession of land measuring 01 Kanal 01 Marla, bearing Khasra No.220/8, Khata No.58/57, Mouza Dagar Gharbi, Bhakkar. The petitioners contested the suit, claiming that their predecessor had purchased the property in 1999 through Iqrarnama (Ex.D-1) against consideration and obtained possession, which remained with them along with construction thereon. They also relied upon Mutation No.405 and asserted that respondent No.1’s transactions of 2007 were subsequent to their predecessor’s transaction. The suit was contested by defendants by filing written statements, however certain defendants were proceeded against ex parte at the time of framing of issues. The learned Trial Court, after framing issues, recording evidence and hearing arguments from both sides, decreed the suit on 09.10.2012 and their appeal was dismissed on 05.11.2013.

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3.Learned counsel for the petitioners submits that the learned Courts below failed to appreciate material evidence; did not determine the competing claim arising from the 1999 transaction or the protection claimed under section 53-A of the Transfer of Property Act, 1882 (“the Act of 1882); overlooked the questions of identification and demarcation of the suit property and of its being part of a joint Khata; did not examine the earlier ejectment proceedings, the revenue record and the documents of the previous transaction; and proceeded against minor defendants without lawful representation.

4.Learned counsel for respondent No.1 supports the concurrent judgments. He submits that his client is exclusive owner of the disputed land by registered sale deeds and mutations; that Mutation No.405 had been cancelled; that the earlier ejectment proceedings did not adjudicate title; that the property stands identified through the revenue record, Tatima Field Book and Aks Shajra; that the petitioners cannot profit from their own failure to produce evidence; and that revisional jurisdiction is limited.

5.Arguments heard. Available record perused.

6.Having heard the parties and examined the record, the following questions arise: (i) whether the suit was lawfully conducted against defendants who were minors; (ii) whether a suit for exclusive possession of a defined portion of a joint Khata was maintainable without partition or impleadment of the co-sharers; (iii) whether the 1999 transaction and the plea under section 53-A of the Act of 1882 required determination; (iv) whether the identity and location of the suit property were established; (v) whether the documentary and revenue evidence, the earlier ejectment proceedings and the plea of Abadi Deh were properly proved and appreciated; and (vi) whether, in view of any such defects, the concurrent judgments can be sustained in revision.

7.The first and most serious defect concerns the minor defendants. Order XXXII, Rule 3, CPC requires the Court, on being satisfied of a defendant’s minority, to appoint a proper guardian for the suit. The

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provision is not technical. A minor lacks the capacity to defend himself, and the Court, acting as protector of those who cannot protect themselves, must ensure that his interest is independently and effectively represented. A minor’s non-appearance without a guardian is not a default in any meaningful sense. The reason is that a minor cannot be treated as a party to the suit in the true sense unless he is represented by a duly appointed guardian, and for that reason he cannot be proceeded against ex parte even where the proposed guardian fails to appear. The duty of the Court does not end with the mere nomination of a relative: where no order appointing a guardian exists, or the guardian fails to perform his obligations, the Court must appoint or replace him, if necessary by a court official or a pleader, so that the minor is not left to suffer for the default of others. The right to a fair trial and due process under Article 10A of the Constitution reinforces the point. Reference can be made to Mst. Rooh Afza v. Sher Aman Khan and others (PLD 1993 Peshawar 49), Khawaja Auto Cars Limited v. Haji Sharif Khan (1996 CLC 1337) and Miss Kiran Arif Mian v. Miss Kinza Khalid and another (PLD 2008 Islamabad

8.The judgments of the learned Courts below do not show that the ages of the concerned defendants were determined, that their status as minors was consciously addressed, or that a Guardian-ad-Litem was appointed. Not every irregularity concerning a minor invalidates the proceedings automatically. But where the record fails to show effective representation in a suit over valuable immovable property, the Court cannot presume that the minors’ interests were adequately protected. Where it is established that a minor defendant remained wholly unrepresented, the decree against him has been held to be one against a person not properly a party to the suit and, therefore, without jurisdiction; whether that was so in respect of any of the defendants here is a matter to be determined by the learned Trial Court. The defect carries added weight because the defence involved a prior transaction, possession, construction and competing claims of title, none of which a minor could be expected to advance unaided. The

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failure to address this question materially affects the validity of the adjudication.

9.The petitioners assert that the disputed land forms part of a larger joint Khata, while respondent No.1 claims exclusive ownership of a defined parcel of 01 Kanal 01 Marla. The distinction between ownership of an undivided share and entitlement to exclusive possession of a physically defined parcel is fundamental. While a holding remains joint, each co-sharer has an interest in every part of it until partition by metes and bounds, and a vendor can convey no more than he owns (nemo dat quod non habet); his purchaser steps into his shoes and takes an undivided share, not a specific parcel. The Supreme Court has held that a vendee from a co-sharer of a joint Khata is clothed with the same rights as his vendor, no more and no less, and, so long as there is no partition, steps into the vendor’s shoes only to the extent of the area purchased and provided that it does not exceed the vendor’s share. Reference is made to Zafar Iqbal and others v. Muhammad Rafiq and others (2024 SCMR 1791). A co- owner may transfer possession of his holding to another, but the purchaser does not thereby become exclusive owner of a specific un- partitioned parcel, the holding remaining subject to partition, as held in Gulfraz and others v. Mir Dad and another (2017 MLD 453). Exclusive possession of a particular portion is ordinarily the fruit of partition, not of purchase. Every co-sharer is regarded as being in possession of each inch of the un-partitioned holding according to his share, and there is no question of exclusive physical possession until partition by the competent forum. Reference can be made to Al-Haaj Malik Muhammad Ashraf v. Javed Akhtar and another (2025 SCMR 787, rendered under the Illegal Dispossession Act, 2005) and Ali Asghar v. Mst. Farkhanda Rani and another (2026 CLC 1159). Where a co-owner seeks possession from another co-owner who is in peaceful possession of the undivided property, his remedy is partition and not a suit under section 8 of the Specific Relief Act, 1877, as enunciated in Taj Wali Shah v. Bakhti Zaman (2019 SCMR 84). The position is otherwise as against a stranger to the joint holding, against

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whom a co-sharer may sue for the entire property for the benefit of all co-sharers; the status of the petitioners and of the holding is, therefore, material. Section 8 of the Specific Relief Act, 1877 lets a person “entitled to the possession” of specific immovable property recover it, but entitlement to possession of this particular parcel was the very thing in issue.

10.The question is therefore not answered by producing a registered sale deed. The Court must determine what was conveyed, by whom, in what capacity and from which holding, and whether the parcel claimed had acquired a legally identifiable and exclusive character. The learned Trial Court did not undertake this exercise with the required care, and the First Appellate Court did not independently determine the objection, treating the registered deeds as substantially conclusive. A registered document does carry a presumption of genuineness and correctness under Articles 85(5) and 129(e) of the Qanun-e-Shahadat Order, 1984, as held in Mst. Nazeeran and others v. Ali Bux and others (2024 SCMR 1271); but that presumption attaches to the instrument as a genuine act and does not itself decide what interest the vendor had to convey, which can be no more than he owned, or to which parcel the instrument relates. That approach conflates title to an interest in a holding with the right to physical possession of a defined parcel. Even if respondent No.1’s instruments are genuine, the nature and extent of the rights acquired under them remain to be determined. Whether the parcel was separately and exclusively transferable, or part of an undivided Khata (in which case partition and impleadment of all necessary co-sharers would arise), was a material issue which could not be bypassed.

11.The petitioners rely on Ex.D-1 to say that their predecessor purchased the property in 1999, paid consideration, took possession and raised construction, and that the person who executed the transaction acted as attorney of the original owners. The learned Courts below substantially treated the cancellation of Mutation No.405 as disposing of this defence. That was legally inadequate. A

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mutation is a fiscal and revenue entry which records, but does not create, title; correspondingly, its cancellation cannot, without examining the underlying transaction, conclusively establish a right to recover possession. The relevant questions included the authority of the alleged attorney, the execution and contents of Ex.D-1, payment of consideration, delivery and continuity of possession, construction, the parties’ subsequent conduct, and the relationship between the 1999 transaction and the 2007 sale deeds. The petitioners’ defence rested on an anterior transaction and possession originating from it, not merely on Mutation No.405, and the cancellation of a revenue entry could not by itself extinguish the underlying civil rights. A person in possession acquires a vested right to possession which can be displaced only by one who shows a prior or better title through transfer or inheritance; the possession asserted by the petitioners under the 1999 transaction, and the title of the person who seeks to dislodge it, therefore called for examination and could not be disposed of on the strength of the revenue entry alone.

12.The plea under section 53-A also required determination. The doctrine of part performance, rooted in the equitable maxim that equity regards as done what ought to be done, protects a transferee who has taken possession under a written contract and acted upon it; but it is a shield against the transferor, not a source of title, and operates only upon proof of its statutory ingredients. The Court had to examine whether there was a written contract signed by or on behalf of the transferor; whether its terms were sufficiently certain; whether possession was delivered in part performance; whether acts were done in furtherance of the contract; and whether the transferee performed or was willing to perform his obligations. These were mixed questions of fact and law requiring evidence. The learned Trial Court did not frame or decide them, and the First Appellate Court did not cure the omission. As the 1999 transaction preceded the 2007 deeds, its effect bears directly on the claim for possession.

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13.Respondent No.1 claimed 01 Kanal 01 Marla out of Khasra No.220/8, while the petitioners disputed its identity and asserted possession of property covered by the earlier transaction. The record before this Court contains an assertion that the Halqa Patwari admitted that no proper demarcation had been carried out to ascertain whether the Khasra number matched the boundaries in the sale deeds, and that no identification report was prepared. The petitioners also pointed to discrepancies in the descriptions and boundaries in the competing documents. A decree for possession must relate to property that can be identified and delivered in execution; Order XX, Rule 9, CPC accordingly requires a decree concerning immovable property to describe it sufficiently to identify it. A bare reference to a Khasra number does not resolve a dispute where a larger holding contains a specifically claimed portion and the parties contest whether the land described in one document is the land in the other’s possession. The learned Courts below ought to have determined whether the property in Ex.P-1 to Ex.P-3 was physically the property over which the petitioners claimed possession and, where the documents could not settle the matter, to have ordered local investigation and demarcation under Order XXVI, Rule 9, CPC. A Local Commission does not manufacture evidence for either side; it elucidates an existing controversy about the identity, location and physical features of the property. The absence of any satisfactory identification materially undermines the decree for possession.

14.Respondent No.1 relied principally on Ex.P-1 to Ex.P-3 and the corresponding mutations, but the petitioners questioned how this material was brought on record and proved. Admissibility, relevancy and mode of proof are distinct, and where a document is disputed the Court must determine the legally permissible manner of proving it, which depends on the nature of the document (an original registered instrument or a certified copy of a public record), whether execution is disputed, how it was tendered and what it is sought to prove. Since respondent No.1’s claim depended substantially on a documentary chain of title, each material document called for such document-wise

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analysis, which the learned Courts below did not undertake. This Court records no finding that the documents are inadmissible or unproved; the defect lies in treating them as conclusive without the necessary evidentiary analysis.

15.The petitioners rely on earlier ejectment proceedings dismissed on 05.05.2003 for failure to establish a landlord-tenant relationship. Such proceedings do not operate as res judicata on title where the Rent Controller, a forum of limited jurisdiction, was not competent to decide title or did not actually decide it; their dismissal neither establishes the petitioners’ title nor bars the present suit. It has similarly been held that the dismissal of an ejectment application for want of proof of the relationship of landlord and tenant decides only that issue and not title, the Rent Controller having no jurisdiction to decide title, and does not prejudice the maintainability of a subsequent suit founded on title. But the earlier litigation cannot be ignored. Pleadings, admissions, descriptions of the property, assertions of possession and the parties’ conduct there may be relevant evidence in the later suit, particularly where the date and source of possession are themselves disputed. The learned Courts below did not examine the proceedings from this limited but important perspective.

16.The petitioners also describe the land as Abadi Deh and invoke the Punjab Conferment of Proprietary Rights on Non-Proprietors in Abadi Deh Act, 1995. Neither the description of the land in the revenue record nor the existence of a Khasra number is, by itself, conclusive of the applicability of the aforesaid enactment. The plea required examination in light of the relevant revenue record and the statutory requirements. Although its determination may not ultimately affect the outcome, it was a material plea warranting a reasoned finding.

17.The First Appellate Court, being the final Court of fact, was required to independently examine the grounds of appeal, formulate points for determination, record its decision on each point and provide reasons therefor, as mandated by Order XLI, Rule 31, CPC. It could

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not dispose of the appeal merely by relying upon the registered sale deeds produced by respondent No.1 and the absence of equivalent registered documents on the part of the petitioners. The material questions concerning the competing transactions, possession, identity and nature of the property, Mutation No.405, representation of the minor defendants, and maintainability of the claim for exclusive possession from a joint holding required independent determination. The failure to address these matters rendered the appellate judgment an incomplete adjudication of the controversy.

18.Considered cumulatively, the defects in the proceedings are not mere irregularities. The suit was decreed without satisfactory determination of the lawful representation of the minor defendants; material questions concerning the nature and identity of the property, the competing 1999 transaction, the plea under section 53-A of the Transfer of Property Act, 1882, and respondent No.1’s chain of title were not adequately examined; and the earlier ejectment proceedings and the effect of the relevant revenue record were not properly considered. The First Appellate Court, in turn, failed to address the material grounds of challenge. These deficiencies undermine the legality and completeness of the adjudication and disclose material procedural irregularities, inadequate consideration of relevant evidence and failure to exercise jurisdiction in accordance with law.

19.The petitioners’ failure to lead evidence does not cure these defects. Under Article 117 of the Qanun-e-Shahadat Order, 1984, the burden of proving his claim rested upon respondent No.1 and could not be treated as discharged merely because the defence was not heard. It is a settled principle that a party who seeks relief must stand on his own legs and cannot take benefit of the weakness of the opposite party. Reference can be made to Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630), Abdul Majid through General Attorney v. Anjum Akhtar (2024 CLC 1727) and Nasir Ali v. Mst. Raheela Mahdi (2025 CLC 885). The burden of proving a fact lies on the person who substantially asserts it, and until

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it is discharged the other side is not called upon to prove his case; the legal burden remains on the plaintiff throughout, while the evidential burden shifts to the defendant only after the plaintiff discharges his initial onus. The philosophy of the rule is that a decree for possession must rest on the claimant’s own proof and not on the opponent’s silence or default. Likewise, the production of registered sale deeds does not, by itself, resolve the questions of identity, possession, co- sharer rights and maintainability. Respondent No.1 may ultimately establish his entitlement to possession, but the competing claims must first be adjudicated in accordance with law, after proper determination of the relevant issues and affording the parties an adequate opportunity to present their respective cases.

20.The petitioners have also challenged the maintainability of the suit on the ground that exclusive possession of a defined portion of a joint Khata was sought without partition or impleadment of the co- sharers. The objection raises a substantial legal question; however, its determination depends upon the nature and status of the holding, which have not been conclusively established by the learned Courts below. Similarly, this Court cannot appropriately determine in revisional jurisdiction, in the first instance, the disputed questions concerning the competing documents, the 1999 transaction, the 2007 deeds, the revenue record, identity and possession. In these circumstances, neither dismissal of the suit nor affirmation of the impugned judgments would be justified. The appropriate course is to set aside both judgments and remand the matter for a de novo trial, without expressing any final opinion on the merits of the competing claims. The law favours adjudication on merits after full opportunity to the contestants, procedural rules being meant to advance the cause of justice and not to entrap litigants.

21.For the foregoing reasons, the instant revision petition is allowed. The judgment and decree dated 09.10.2012 passed by the learned Civil Judge 1st Class and the judgment and decree dated 05.11.2013 passed by the learned District Judge, Bhakkar, are set

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aside, and the suit is remanded to the learned Trial Court for de novo trial and decision in accordance with law, subject to the following directions:

(i)The learned Trial Court shall determine the ages and legal status of all defendants at the relevant time and, wherever any defendant was a minor, ensure compliance with Order XXXII, Rule 3, CPC, including lawful appointment of a Guardian-ad-Litem. It shall also reconsider the effect of the earlier ex parte proceedings and closure of defence evidence, ensuring that no minor suffers prejudice on account of absence of lawful representation.

(ii)Comprehensive issues shall be framed or recast, as necessary, concerning title, identity and nature of the property, co-sharer rights, maintainability, possession, limitation, the 1999 transaction, Ex.D-1 and the plea under section 53-A of the Transfer of Property Act, 1882. The latter plea shall be determined only after examining whether its statutory requirements have been established through legally admissible evidence.

(iii)The relevant revenue record, including the Jamabandi, Aks Shajra, Tatima, Khasra Girdawari, Mutation No.405, Mutation Nos.570, 571 and 572, and the orders cancelling Mutation No.405, shall be examined in accordance with law.

(iv)In view of the dispute concerning the physical identity of the property, the learned Trial Court shall consider, if necessary, appointing a Local Commissioner or competent Revenue Officer under Order XXVI, Rule 9, CPC, for spot inspection and demarcation.

(v)The petitioners’ application for additional evidence shall be decided in accordance with law, with a document-wise assessment and after affording respondent No.1 an effective opportunity to object and, where permissible, to produce rebuttal evidence.

(vi)The earlier ejectment proceedings shall be considered for their legally permissible evidentiary effect, without treating them as determinative of title unless warranted by the record and the applicable law.

(vii)The learned Trial Court shall determine whether the suit property forms part of a joint and undivided Khata and, if so, whether the claim for exclusive possession of the defined portion is maintainable in its present form,

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having regard to the rights of the co-sharers and the requirements, if any, of partition and their impleadment.

(viii)The plea under the Punjab Conferment of Proprietary Rights on Non-Proprietors in Abadi Deh Act, 1995, shall be determined with reference to the actual revenue status of the property and the applicable statutory requirements.

(ix)The plea of limitation shall be decided through a reasoned finding based on the pleadings, evidence and applicable law.

22.The learned Trial Court shall decide the suit independently, on the basis of evidence legally brought on record and without being influenced by the judgments set aside or any tentative observations made herein concerning the merits of either party’s claim. The proceedings shall be concluded expeditiously, preferably within six months of receipt of the record. Any execution proceedings founded solely upon the judgments and decrees set aside herein shall remain in abeyance. No order as to costs.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge *Sultan*