Zaka Ur Rehman Vs Govt of KPK

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

civil Revislon No. gs-N2015 with c.M.No.l69-N2024

JUDGMENT

Date of hearirrg. ..02.06'2025"' ''' Petitioners (Zaka ur Rehman and others) - By M/S Muhammad Saleem Awan, Ghulam Younas Tanoli and Aqeel Sarwar Tanoli, Advocates.

Respondents (Govt: of Khyber Pakhtunkhwa & others) R;;;;;J".ts No.1 & 2 By tr/r. shoaib Ati, Assistant Advocate General and the Remaining respondents By Mr. Saeed Ashraf, Advocate' AURANGZEB. J.- This revision petition is directed against the consolidated judgment and decree dated 24'02-2015, passed by the tearned Additional District Judge-ll, Mansehra, whereby appeals filed by the respondents against the judgment and decree dated 30.05.2011 of the Civil Judge-Vll, Mansehra was accePted.

2.Brief facts of the case are that the petitioners/plaintiffs instituted a civil suit against the respondents/defendants seeking a declaration and permanent injunction in respect of the property bearing Khata No' 590/1198, 1199 and Khasra Nos' 24791435, 457, 456, 2478t455, 437, commonly known as "Dagai," comprising five pieces of land,

measuring 25 kanals and 6 marlas' The petitioners claim ownership and possession of the aforementioned property on the basis of a domestic partition deed dated 12'03'1933' lt is asserted that the entries recorded in the revenue record regarding the said property are incorrect, illegal, contrary to the actual facts, and ineffective as against the legal rights and title of the petitioners' The respondents/defendants have no laMul right, title, or interest in the suit property and are not entitled to interfere in the possession of the petitioners or to claim any partition therein' Accordingly, the petitioners sought a decree permanently restraining the respondents from asserting ownership, interfering with possession, or initiating partition proceedings in respect of the suit property. The v respondents/defendants No' 4 to 6, 8, 10, and 13 appeared before the learned trial court and contested the suit by filing a joint written statement. Similarly, respondents/defendants No. 9, 14, 22, 25 to 28, and 31 also appeared and filed their joint written statement in opposition to the suit. The respondenU defendant No. 16, however, filed a separate written statement. After framing issues,

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recording evidence, and hearing arguments from the learned counsel for both parties' the learned trial court decreed the suit in favour of the petitioners vide judgment and decree dated 30.05.2011. Dissatisfied with the said judgment & decree, the resPondents preferred separate appeals before the learned appellate court, These appeals were accepted through a consolidated judgment and decree dated 24.02.2015. Aggrieved by the appellate court's decision, the petitioners have filed the instant revision petition'

3.Arguments heard and record gone through.

4.Perusal of the record reveals that the petitioners/plaintiffs are claiming sole ownership of the disputed property based on two mutually contradictory pleas' On one hand, they assert exclusive ownership on the ground that the property belonged solely to Mst. Rasool Jan, their predecessor-in- interest. On the other hand, they rely on a private partition deed dated 12.03.1933 to substantiate their claim. These two claims are inherently inconsistent, if the property was the exclusive ownership of Mst. Rasool Jan, as alleged, there would have been no necessity

for any partition among her descendants or other parties. The very reliance on the partition deed undermines their claim of sole inheritance.

5.Moreover, the alleged partition deed dated 12.03.1933 is vague and lacks essential particulars. lt does not mention any specific Khasra numbers or the

measurements of the land in question' The document, therefore, appears ambiguous and raises doubts about its authenticity' In addition, neither the scribe of the document nor any attesting witnesses or even their sons or grandsons have been produced to verify the signatures or attest to its execution' When the document was tendered in evidence, it was objected to by the opposing party' The respondents/defendants have categorically denied its authenticity in their written statements.

6.The testimony of the PW-3 also lacks clarity. ln his examination-in-chief, he did not mention the date of the document' lnstead, he vaguely stated that a private partition took place in 1933-34. Furthermore, the oral testimonies of the petitioners are inconsistent with each other. The PW-3 stated that in the

partition, Khasra Nos. 1623, 1629, and 1624 were allotted to Muhammad Usman' Contrarily, his brother the PW-4 claimed that Khasra Nos. 1261, 1260, 1263, and 1264 were given to Usman and Aziz-ur-Rehman' Such contradictory statements, coupled with hearsay evidence, weaken the petitioners' case.

7.lt was the burden of the petitioners to establish their claim through credible and cogent evidence, which they have failed to discharge. ln contrast, there exist long- standing revenue entries in favour of the respondents/defendants, which cannot be disregarded merely on the basis of inconsistent and unreliable oral testimony.

8.lt is also noteworthy that a civil suit regarding the same property was filed by the predecessors of the respondents/defendants in the year 1934. A certified copy of this suit is available on the case file as Ex.DW1/15. ln that suit, the father of the Present petitioners/plaintiffs, namely Shams-ur- Rehman, was originally arrayed as a defendant. However, he later moved an application to be joined as a plaintiff, which was allowed by the trial court on 21.04.1934.

The supplementary statement of Ghulam Jan in the said proceedings (Ex'DW2/2) reveals that the original tenant over the disputed land was Hayat Khan, who had two sons Abdul Wahab and Habib-ur-Rehman' Abdul Wahab had two sons Hamidullah Khan and lnayatullah Khan. lnayatullah Khan was recorded as issueless. This documentary evidence negates the claim of the petitioners that Mst. Rasool Jan was the daughter of lnayatullah Khan.

I. Although DW-2 Muhammad Nawaz Khan admitted that tMst. Rasool Jan was the daughter of lnayatullah Khan, such an admission binds the respondents/defendants' However, a pertinent question arises if Mst.Rasool Jan was indeed the daughter of lnayatullah Khan and entitled to the property, why did she not take any steps to have the revenue records corrected after his death in 1905-06? The relevant entries were made in the Jamabandi of 1911-12 but remained unchallenged for over nine decades. Even her husband, Abdur Rehman (the grandfather of the petitioners), and her son Shams-ur- Rehman (the petitioners' father) took no action to challenge those entries during their

lifetimes. The present petitioners only challenged the entries in 2003, after an unexplained delay of 92 years. No reasonable explanation for such prolonged inaction has been offered.

10.lt is also an admitted fact that previous litigation concerning the disputed property existed. The predecessors of both parties obtained a decree in their favour in the year 1935. Based on that decree, ltlutation No. 334 was attested on 27.01.1936, a copy of which is available on record as Ex.PW2/D-

1.This mutation reflected ownership in favour of the predecessors of both parties' The petitioners' predecessors never challenged this mutation during their lifetimes, which further weakens the petitioners' claim. Reliance in this regard is placed on the case of Abdul Haq and another v. Mst. Surrya Begum and others (2002 SCMR 1330) wherein it was held:-

"11. Atta Muhammad 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 tvluhammad through whom they claimed inheritance himself had not challenged the same during his lifetime."

11.Same view was reiterated in the case of "Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others" (PLD 2014 Supreme Court 167) and by this court in case of "Muhammad Azeem Khan and others versus Muhammad lmran Khan and others (2024 CLC { 808 Peshawar)". Hence, in view of the guidance derived from the above verdict of worthy Apex Court as well as this court, the petitioners have no locus standi to challenge the entries of revenue record as same was not challenged by their predecessor.

12.So far as the C.tU.No.169-A/2024 filed by the petitioners for amendment in the plaint is concerned, the revisional jurisdiction of the High Court is governed primarily by Section 1 15 of the Code of Civil Procedure, 1908. Under this provision, the High Court does not function as a court of original or appellate jurisdiction but rather acts as a supervisory forum to correct jurisdictional errors, material irregularities, or illegalities

committed by subordinate courts. Generally, in exercising this limited and supervisory jurisdiction, the High Court refrains from entertaining or adjudicating fresh applications, such as those seeking an amendment to the plaint, particularly when such applications were not initially made before the trial court.

13.However, there exists an important exception to this principle. lf a subordinate court, such as a civil judge or district judge, has refused to allow an application for amendment of the plaint, and such refusal is subsequently challenged before the High Court in revision, the High Court may examine the legality, propriety, and correctness of the subordinate court's tl decision. lf it is found that the refusal was based on a misapplication of law, a failure to exercise jurisdiction vested in the court, or an error that may lead to injustice or prejudice against a party, the High Court is empowered to intervene. ln doing so, it may set aside the impugned order and permit the proposed amendment.

14.This discretionary power is exercised with caution and is guided by the overarching objective of ensuring substantial justice. The

courts have consistently held that procedural laws, including those relating to amendments, should not become a barrier to the fair adjudication of rights' Accordingly, if the proposed amendment is necessary for the proper determination of the real questions in controversy between the parties, and does not cause irreparable prejudice or delay, the High Court may allow such an amendment even in revisional Proceedings'

15.The judicial record unmistakably reflects that the petitioners have taken two inconsistent and mutually contradictory positions, firstly, in the original plaint filed before the learned court, and secondly, in the subsequent application filed before this court seeking amendment of the said plaint. This shift in position is not a mere clarification or refinement of pleadings but rather represents a fundamental change in the narrative and Iegal stance initially adopted by the petitioners. The apex court in case titled Khair Muhammad & other versus Nawab Bibi & others (2008 SCMR 515) has held that:-

"We have heard the learned counsel for the petitioner at length and have also gone through the available record. We

find that all the three Courts including the High Court have recorded concurrent findings of fact by holding that sale of the suit land had been validlY made by Mst. Ramzan Bibi, General Attorney of Lal Din in favour of Chando vide mutation No.636 attested on 21-3-1962 and that the petitioners were not the owners of the land. The evidence Produced bY the parties was dulY aPPreciated bY the Courts. Therefore, in the peculiar facts and circumstances of the present case, it would not serve the cause of justice if the petitioners were allowed to amend the Plaint and to treat their suit for declaration as suit for specific performance so as to change the comPlexion and character of the suit. The Parties have already been litigating the matter for the last about 37 years. The petitioners called in question the validitY of sale of suit land to Chando after 6 years. We do not find any error of law and fact in the imPugned judgment. ln our oPinion, this is not a fit case for grant of leave to appeal."

\ Similarly, the apex court of Azad Jammu and Kashmir in case titled Ghulam Asghar versus Muhammad Riaz & 2 others (PLD 2008 Supreme Gourt (AJ&K) 1) has held that;

"......A plaintiff cannot be allowed to amend his plaint so as to alter materially or substitute a cause of action or nature of claim. While in defence or written statement, adding new ground of defence or substituting or altering defence would not raise the same problem as adding, altering or

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substituting a new cause of action. Therefore, the courts are liberal in altowing amendment in the written statement than that of plaint but at the same time the courts have to consider whether the application for amendment of written statement is genuine one and amendment is necessary for the just decision of the case. Where a court finds that the aPPlication for amendment has been moved only for prolonging the case, then of course such kind of amendment shall not be allowed or where by laPse of time a right has accrued to other PartY, then such time-barred claim could not be allowed to be raised through an application for amendment. An amendment will not be it allowed where is ProPosed with the object or making out a new and inconsistent defence or where the amendment totallY changes the character of defence. This view finds suPPort from a cause reported as Tariq Itllehmood Niazi v. Nadim Afzal and others PLD 1996 Lahore The august SuPreme Court of Pakistan reaffirmed the same in case titled Abaidullah Malik versus Additional District Judge, Mianwali & others (PLD 2013 Supreme Court 2391, the relevant portion of the judgment is reproduced below:- "Besides the above, while allowing the amendments of the pleadings, the Courts should also keep in view the admissions, which have been made by the parties therein (pleading), and the principle that the amendments should not be

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allowed, which in a way tantamounts to the withdrawal of the admission or would obliterate the admission;

reference in this regard can be made to the case rePorted as "Secretary to Government (West Pakistan) Now N'-W'F'P' DePartment of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil (PLD 1978 SC 242)". We find that in the Present case, bY virtue of the amendment, the Petitioner wants to withdraw from his admission about the time given in the Plaint and that too after the recording of his statement and statements of other P.Ws and this is not permissible under the law'"

16.The learned appeal court has rightly appreciated the evidence brought on record by the parties. The learned counsel for the petitioners has failed to point out any materia!

irregularity or misreading or non-reading of evidence on record or jurisdictional defect in the impugned judgment and decree passed by the tearned appellate court, thus calling for interference by this court in its revisional jurisdiction.

17.For what has been discussed hereinabove, the instant revision petition alongwith C.l\4.No.169-N2024 being bereft of p 0o* any merit, are herebY dismissed.

Announced:

JUDGE

Aftab PSY