Shakeel Ahmad and another Vs Mst. Noshaba & others

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department)

W.P. No. 04-A/2018

Shakeel Ahmad and another (Petitioners)

V/S

Mst. Noshaba & others.

--------- (Respondents)

Present: Haji Ghulam Basit, Advocate, for petitioners.

Mr. Tanveer Ahmed Mughal & Mr. Zafar Iqbal, Advocate, for the respondents. Dates of hearing: 04.07.2025

JUDGMENT

SYED MUDASSER AMEER, J.- Through the instant writ petition, petitioners have sought the following prayer: -

“In view of the above it is submitted that by acceptance of Writ Petition, the judgment, decree and order impugned may be declared unlawful and ineffective upon the rights of the petitioners.”

2.Perusal of the available record would show that the present petitioners/plaintiffs brought a suit seeking declaration to the effect that they alongwith the proforma defendants were owners in (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

possession in the properly measuring 424 kanals, being legal heirs of Mst. Sohni Jan and Mst.Afsar Jan daughters of Ali Asghar Khan, deceased. They challenged the inheritance mutation of their predecessor in interest (Ali Asghar Khan S/O Muzaffar Khan) bearing No.4699 attested on 20.12.1937 only in favour of his son namely Muhammad Farooq (now dead) being result of fraud and collusion. They further challenged the subsequent mutations attested upon the strength of the original inheritance mutation bearing No.4699. In para "Bay", they sought possession and para Jeem permanent injunction regarding the property in question. The respondents/defendants were duly summoned by the trial court who appeared, contested the suit by filing their written statements. During the pendency of the suit, after recording of statements of PWs i.e Muhammad Naseem Patwari Halqa as PW-1, Niaz Muhammad SOK as PW-2 and production of the relevant record in evidence, the respondents/defendants submitted application under Order VII, Rule 11 CPC for rejection of plaint on the ground of non- maintainability, the said application was contested by the present petitioners/plaintiffs by filing replication.

After hearing arguments on the application for (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

rejection of plaint, the learned trial court rejected the same vide order dated 24.11.2016.

Respondents/defendants being aggrieved of the aforesaid order/judgment dated 24.11.2016 preferred civil revision petition No.1/CR of 2017 which was allowed and the suit of the present petitioners/plaintiffs was dismissed vide impugned order/judgments dated 22.11.2017. Petitioners/plaintiffs have now challenged the aforesaid order/judgment dated 22.11.2017 before this Court through the instant constitutional petition.

3.Heard.

4.Perusal of the record available on the file reveals that the deceased Ali Asghar Khan was survived by his widow, Mst. Shahjehan; his son, Farooq Khan (who is the predecessor-in-interest of defendants No.1 to 2); his daughter, Mst. Afsar Jan (predecessor-in-interest of plaintiff No.2 Jehanzeb Khan and defendants No.23 to 26); and another daughter, Mst. Sohni (predecessor-in-interest of plaintiff No.1 Shakeel Khan and defendants No.18 to 21). The inheritance mutation of Mst. Shahjehan, the widow of Ali Asghar Khan, bearing Mutation No.5355, was duly attested on 18.02.1990. It is noted that one of the daughters, namely Mst. Afsar Jan, was (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

married to Ali Gohar Khan, who is still alive and has been impleaded in the instant proceedings as defendant No.22. On the other hand, Mst. Sohni was legally wedded to Khushal Khan, who has since passed away.

The inheritance mutation of Mst. Afsar Jan, wife of Ali Gohar Khan, was attested in the year 1990 under Mutation No.5356. In contrast, the inheritance mutation of Farooq Khan, the son of Ali Asghar Khan, was attested much earlier on 09.08.1966, bearing Mutation No.2923. In that mutation, both of his sisters, Mst. Afsar Jan and Mst. Sohni, were mentioned as legal heirs and enlisted as shareholders in the list of legal representatives of the deceased Farooq Khan.

Additionally, the widow of Farooq Khan, namely Mst.

Amraizan Bibi, was also recorded as one of the legal heirs along with his sisters and daughters. The record further indicates that Muhammad Sultan Khan (father- in-law of Mst. Afsar Jan and son of Muhammad Akbar Khan) subsequently purchased property from Mst.

Amraizan Bibi (widow of Farooq Khan), Mst. Naeema (daughter of Farooq Khan), as well as from Mst.

Shahjehan (mother of Farooq Khan) and Mst. Sohni (sister of Farooq Khan). This single transaction pertained to the property left behind by Farooq Khan (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

(deceased) and was formalized through Mutation No.3373, attested on 15.09.1971. However, this sale was later challenged through a pre-emption suit titled Abdul Qayyum vs. Sultan Khan, which remained pending in the year 1974. As a result of this litigation, Mutation No.3678 was attested. Subsequently, in the year 1990, another sale transaction was executed by defendants No.1, 3, and 4 in favor of the husband of Mst. Afsar Jan, i.e., Ali Gohar Khan, through Mutation No.5518, which was attested on 06.01.1991.

Furthermore, Mutation No.3543 was attested on 06.04.1973 in respect of the sale of the shares of Mst.

Sohni, Mst. Amraizan, and Mst. Naeema in favor of Mst. Afsar Jan (wife of Ali Gohar Khan).

5.Perusal of the order recorded on the reverse side of Mutation No.3543 clearly shows that Ali Gohar Khan, husband of Mst. Afsar Jan, acted as a witness to the said transaction. It is pertinent to note that all three mutations, namely Mutation Nos. 3373, 3543, and 3678, were never challenged by any of the contesting parties. These transactions stemmed from the original inheritance Mutations No.4699 and No.2923. The revenue record also reflects that multiple mutations were subsequently attested from the estate of (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

Farooq Khan (deceased), and none of these were ever challenged during the lifetime of Mst. Afsar Jan and Mst. Sohni. These transactions, as evidenced by attested copies duly incorporated in the revenue record, clearly establish that both Mst. Afsar Jan and Mst.

Sohni had full knowledge of the original inheritance Mutation No.4699 and raised no objection thereto.

Their inaction and silence in this regard, especially in light of later transactions executed by or on their behalf, demonstrate their acquiescence and waiver of any rights they may have had. Consequently, the instant suit, filed after the demise of both ladies, is squarely hit by the doctrine of estoppel. Furthermore, given that both ladies had full and constructive knowledge of the original transactions and inheritance mutations but failed to challenge either the inheritance mutation of their predecessor-in-interest in 1937 or that of their brother in 1966 or any related subsequent transactions during their lifetimes the present suit is clearly barred by limitation. In the case of Muhammad Rustam and another Versus Mst. Makhan Jan and others (2013 SCMR 299) The apex Court has held that:

(S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

"11. Claimant's predecessor-in- was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime."

6.It is a well-settled principle that when a legal heir, who is directly affected by a wrongfully recorded inheritance mutation, fails to challenge the same for an extended period until his or her death, such inaction effectively deprives the subsequent legal heirs of the locus standi to question the mutation. This is on the grounds of estoppel, abandonment of claim, and extinguishment of the cause of action. In this regard, reliance is placed on judgment of apex Court in the case of Ghulam Abbas Versus Muhammad Shafi (NLR 2015 Civil 479) as well as Abdul Haq Versus Surraya Begum (2002 SCMR 1330), Kala Khan Versus Rab (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

Nawaz (2004 SCMR 517) and Muhammad Rustam Versus Makhan Jan (2013 SCMR 299). Moreover, there is abundant judicial precedent to the effect that where a suit is manifestly barred by limitation, no recording of evidence is required, and the Court is well within its jurisdiction to reject the plaint at the preliminary stage.

7.It is pertinent to mention here that, in the instant case, the impugned Mutation No. 4699 was attested on 20.12.1937 with regard to the property in question. This mutation became the basis for the present petitioners/plaintiffs to institute a declaratory suit in the year 2013. However, the suit was filed approximately 75 to 76 years after the attestation of the said mutation, which is significantly beyond the six- year limitation period prescribed under Article 120 of the First Schedule to the Limitation Act, 1908. The law is well settled by now; when the primary relief of declaration is time-barred, then any consequential relief irrespective of whether it may appear to be within the prescribed limitation would be of no legal consequence. In other words, a consequential relief cannot survive independently once the foundational declaratory relief is barred by time. In support of this (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

settled legal position, reliance may be placed on the judgment reported as Muhammad Din v. Deputy Settlement Commissioner (2022 SCMR 1481), where the Hon’ble Supreme Court categorically held that time-barred declaratory claims cannot be revived through the guise of consequential relief. The same principle was reiterated in Javed Shafi v. Rashid Arshad (PLD 2015 SC 212), affirming that the limitation period must be strictly observed, and any relief flowing from a time-barred declaration would be devoid of legal efficacy. In the case title Ghulam Mustafa Versus Mst. Mah Begum and others reported (2024 SCMR 795) the apex Court has held that:- “What is pertinent to note that in the suit filed by the appellant, the reliefs for recovery of possession and permanent injunction are consequential ones, dependent on the main relief of declaration of ownership of the disputed property, which in the present case was filed after 14 years, and thus, goes clearly beyond the six-year period of limitation provided under Article 120 of the First Schedule to the Limitation Act, 1908. By now, it is settled that when the main relief of declaration of ownership is barred by time, the consequential reliefs, even if within time, would be of no legal avail. In this regard, reference may be made to the cases of Muhammad Din v. Deputy Settlement Commissioner (2022 SCMR 1481) and Javaid Shari v. Rashid Arshad (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

(PLD 2015 SC 212).”

Similarly, in the case titled Mst. Faheeman Begum (deceased) through L.Rs and others Versus Islam-ud- Din (deceased) through L.Rs and others reported as (2023 SCMR 1402) the apex Court has held that:- "5. It was claim of the respondent- plaintiff Faheeman Begum that in fact no Tamleek was made in favour of the petitioners and the mutation No.260 dated 29.12.1981 was based on fraud, misrepresentation and collusion. After such allegation, the petitioners were under burden to prove valid Execution of said mutation, for which they produced Allah Bukhsh (D.W.1) Lumberdar, Jumma Shah (D.W.2) Tehsildar, Mumtaz Hussain Patwari (D.W.4), Sardar Yar Muhammad Buzdar Assistant Commissioner (D.W.5), Muhammad Shafi retired Patwari (D.W.6) and one of the petitioners- defendants Islam-Ud-Din as D.W.3; they all have supported the stance take up by the petitioners and have deposed that the mutation on Tamleek was executed in accordance with law and Mst. Ghausan while appearing before the revenue officer got the same executed. All the witnesses remained affirm on material points. It has come on record that Mst. Ghausan remained alive for a considerable time but in her life time she did not ever challenge the veracity and legality of mutation in dispute; thus, as per ratio of judgment reported as Abdul Haq and another v. Mst. Surrya Begum and others (2002 SCMR 1330) the respondent-plaintiff Mst. Faheeman (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

Begum had no locus standi to call into question the same while filing suit as admittedly the said mutation has been given effect in the revenue record. Same is the position in esteemed judgment reported as Muhammad Rustam and another v. Mst. Makhan Jan and others

(2013 SCMR 299)= (PLJ 2013 SC 96).

Apart from this, the respondent-plaintiff Mst. Faheeman Begum has neither described the ingredients of fraud in plaint as required by Order VI, Rule 4 of the C.P.C. nor proved the same as to how the petitioners committed fraud; as against this, as stated above, the petitioners produced all the relevant witnesses in the witness box to prove the valid execution of mutation in their favour. They are in possession of the disputed property and nothing is on record to suggest that they ever paid share of produce to the respondent(s)- plaintiff(s), rather it has been proved on record that donor and donees appeared before the concerned authorities and mutation of Tamleek was entered and attested in accordance with law. Reliance is placed on Taj Muhammad Khan through and another v. Mst. Munawar Jan and 2 others (2009 SCMR Moreover, the mutation in dispute was executed on 29.12.1981, whereas the suit was instituted on 03.05.1997, which was badly barred by limitation."

8.It is also pertinent to mention here that the object of the powers conferred upon the trial Court under Order VII, Rule 11 of the Code of Civil (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

Procedure (C.P.C.) is to ensure that frivolous or legally untenable litigation is curtailed at the very outset. The intention of the legislature in empowering the Court with such discretion is to prevent the unnecessary burdening of the judicial system with cases that, due to some clear legal impediments, are not maintainable in law. Where the plaint on its face discloses no cause of action or is barred by any law, the Court is obligated to reject it without proceeding to a full-fledged trial. This serves the dual purpose of safeguarding the valuable time and resources of the Court and protecting the defendant from being subjected to a prolonged and ultimately futile legal process. In the case titled Noor Din and another Versus Additional District Judge, Lahore and others reported as (2014 SCMR 513 the apex Court has held that:-

“The object of the powers conferred upon the trial Court under Order VII, Rule 11, C.P.C. is that the Courts must put an end to the litigation at the very initial stage when on account of some legal impediments full fledged trial will be a futile exercise.”

9.In paragraph No. 4 of the plaint, it has been stated that only a few months ago, the petitioners/plaintiffs as well as the proforma respondents came to know that their predecessors Mst. (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

Sohni Jan and Mst. Afsar Jan had been deprived of the legacy/share of inheritance of their deceased father.

This concealment or omission of the rightful shares amounts to a denial of their legal rights, which forms the primary cause of action in the present suit. It is their case that every subsequent entry in the record of rights (Jamabandi) gave them a fresh cause of action, wherefore their suit was within time. Every new adverse entry in the revenue record such as a wrongful mutation may, in appropriate cases, be treated as a mere "apprehended or threatened denial" of the proprietary rights of a person who is in possession, whether actual or constructive, of the land in question.

In such instances, where the person affected by the adverse entry has not yet suffered an actual and unequivocal denial of title, a fresh cause of action may arise, entitling the aggrieved party to institute a suit for declaration to safeguard their proprietary interest.

However, the legal position is markedly different where the parties affected such as in the present case, both the ladies had full knowledge of the disputed mutations during their lifetime but failed to challenge them through appropriate legal action. Once there is an actual denial of a person’s right and such denial is not (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

acted upon within the statutory limitation period, the right to challenge the entry becomes barred under the law of limitation. In such circumstances, the mere repetition of the alleged wrongful entry in subsequent revenue documents, such as the Jamabandi or other periodical record-of-rights, does not constitute a fresh cause of action. The settled law holds that once the limitation begins to run from the point of actual knowledge and is allowed to lapse without recourse to legal remedy, the right to seek declaration is extinguished, and no subsequent reflection of the same adverse entry can revive or extend the limitation period. In this case of Haji Muhammad Younis Versus Mst. Farukh Sultan (2022 SCMR 1282) it was held as follows:-

“It has held that every new adverse entry in the revenue record, being a mere "apprehended or threaten denial" relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person a fresh cause of action to institute the suit for declaration. It has, however, further clarified that the situation is different in a case, where the beneficiary of an entry in the revenue record actually takes over physical possession of the land on the basis of sale or gift mutation. In such a case, the alleged wrong entry in the

(S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

revenue record coupled with the very act of taking over possession of the land by the alleged buyer or donee, in pursuance of the purported sale or gift, is an "actual denial of the proprietary rights" of the alleged seller or donor and thus, the time period to challenge the said disputed transaction of sale or gift by the aggrieved seller or donor would commence from the date of such actual denial. Therefore, in such a case, if the purported seller or donor does not challenge that action of "actual denial of his right" within the prescribed limitation period, despite having knowledge thereof, his right to do so becomes barred by the law of limitation, and the repetition of the alleged wrong entry in the subsequent revenue record (Jamabandt) does not give rise to a fresh cause of action.”

10.Since they are seeking issuance of a writ of certiorari to declare the impugned judgment and decree of the appellate court as illegal and against the law, petitioner were required to establish that either the appellate court has exceeded its jurisdiction or that it has not properly exercised its jurisdiction or that it lacked the jurisdiction, however, the petitioners could not point out any excess of jurisdiction or improper or unreasonable or illegal exercise of jurisdiction (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

vested in it, therefore, the same is maintained. In the case of Amjad Khan vs. Muhammad Irshad (deceased) through LRs reported as 2020 SCMR 2155, the Hon’ble Apex Court has held that:

“the High Courts must not exercise their constitutional jurisdiction in order to interfere with the discretion exercised by lower Courts unless the same suffers from jurisdictional, factual or legal errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with the law. If none of these errors is present, the High Courts must not exercise their constitutional jurisdiction to interfere with the findings of lower Courts merely because it reached a different conclusion as to the controversy than the latter.

Similarly, in the case of “Chief Executive Mepco & others v/s Muhammad Fazil & others” reported as 2019 SCMR 919, the Hon’ble Apex Court has declared that:

“where the Court or the Tribunal has jurisdiction and it determines specific question of fact or even of (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

law, unless patent legal defect or material irregularity is pointed-out, such determination cannot ordinarily be interfered with by the High Court while exercising jurisdiction under Article 199 of the Constitution.”

In the case of “Chairman NAB v/s Muhammad Usman & others” reported as PLD 2018 Supreme Court 28, the Hon’ble Apex Court has held:

“that the powers of judicial review vested in High Court under Article 199 of the Constitution is no doubt a great weapon in the Judge's hands, however, the same shall not be exercised in a case where discretion is exercised by the subordinate court/Tribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice. Ordinarily such extraordinary jurisdiction shall not be exercised at random and in routine manner.”

11.In view of the discussion made hereinabove, it is evident that the suit filed by the present petitioners/plaintiffs was hopelessly barred by (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

limitation and squarely hit by the doctrine of estoppel.

The petitioners/plaintiffs neither had any valid cause of action nor the requisite locus standi to institute the instant suit. The learned appellate Court, after appreciating the facts and evidence on record, has rightly concluded that the suit was not maintainable on account of being time-barred. The appellate Court has further held, and rightly so, that the doctrine of estoppel applied against the petitioners/plaintiffs due to their prolonged silence and inaction despite having knowledge of the earlier transactions. Consequently, the learned appellate Court was fully justified in dismissing the suit filed by the petitioners/plaintiffs and the findings recorded by the learned appellate Court are maintained and upheld.

Announced Dt: 04.07.2025 Muhammad Tariq

JUDGE

(S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer