Mst. Khursheed & others Vs Mst. Chan Bibi and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department) C. R No. 293-A/2012

Mst. Khursheed & others.

(Petitioner/s)

VS

Mst. Chan Bibi and others.

(Respondent/s)

Present: M/s Abdul Aziz and Asad Ullah Malik, Advocates for the petitioners.

Mr. Muhammad Jehangir Khan, Advocate for the respondents.

Dates of hearing: 18.08.2025

JUDGMENT

SADIQ ALI, J.- Through the instant civil revision petition, the petitioners/defendants have challenged the judgment & decree of learned Additional District Judge-III, Haripur dated 07.05.2012, whereby, appeal filed by the present petitioners against the judgment and decree of the trial Court dated 04.10.2011, was dismissed.

2.Precisely, the facts of the case leading to the filing of the instant civil revision petition are that the respondents/plaintiffs brought a suit for declaration challenging therein inheritance mutation No. 1609 attested on 21.08.2003 on the ground that petitioner/

defendant No. 1 Mst. Khurshed Bibi was not the daughter of Dilbar Khan, rather she was the daughter of Fazal Din and through the impugned inheritance mutation, the share from the legacy of Dilbar Khan was wrongly alienated in her favour. The suit was contested by the petitioners/defendants by filing their written statement. In view of the pleadings of the parties, the learned trial Court framed issues and thereafter the parties were asked to produce their respective evidence which they have accordingly led.

After hearing the arguments of learned counsel for the parties, the learned trial Court decreed the suit of the respondents/plaintiffs vide judgment and decree dated 04.10.2011. The petitioners/ defendants being aggrieved of the aforesaid judgment and decree preferred an appeal, however, the same was dismissed by learned Additional District Judge-VII, Haripur vide the impugned judgment and decree dated 07.05.2012 which judgment and decree has now been challenged by the petitioners/ defendants through the instant revision petition.

3.Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.

4.The record reflects that the respondents/ plaintiffs sought declaration to the effect petitioner/ defendant No. 7 (Mst. Khurshid wife of Muhammad Arshad) was not the daughter of Dilbar Khan, but with the connivance of rest of the petitioners/defendants, inheritance mutation No. 1609 attested on 21.08.2003 was got attested whereby defendant/petitioner Mst.

Khursheed Bibi was also shown to be a legal heir of deceased Dilbar Khan, as such the inheritance mutation was liable to correction. The suit was contested by the petitioners by raising certain legal as well as factual objections, however, the stance of the respondents was totally denied.

5.Learned counsel for the petitioners mainly contended that the respondents/plaintiffs through their suit before the learned trial Court, have sought negative declaration because they claimed that the petitioner/defendant No. 1 was neither the legal heir of deceased Dilbar Khan nor was entitled to get share from the legacy of deceased Dilbar Khan, as such the suit was not maintainable. Upon examining the provisions of Section 42 of the Specific Relief Act, it becomes clear that a person may only file a suit under this section if they claim entitlement to a legal

character or a right concerning a property. In the present case, the plaintiffs have sought relief for themselves regarding the disputed property by claiming the legal character associated with it. Bar contained in Section 42 would operate only against those individuals who merely deny the rights of others without themselves asserting a personal interest, right, title, or legal character in the property. In this case, the respondents/plaintiffs have claimed that their rights in the legacy of their father Dilbar Khan were disturbed pursuant to inheritance mutation in question, whereby the petitioner/defendant No. 1 was also held entitled to the legacy, as such the contention of learned counsel for the petitioners to the extent of negative declaration is misconceived.

6.In order to understand the concept of declaratory relief as envisaged under Section 42 of the Specific Relief Act, whether the person seeking declaration can file a suit for declaration which actually may be negative circumstantially but may be positive by implication of its outcome, it is necessarily directly associated to the legal right, character, or legal status of the person who is seeking declaratory relief from the competent court of law. Section 42 of the Specific

Relief Act must necessarily be referred for clear understanding of the concept and intent of the legislature. The phraseology of section 42 of the act does not demonstrate that seeking a negative form of declaration cannot be made. Sometimes negative form of declaration is nothing but the assertion of a particular positive nullification in the form of declaration in terms of the relief claimed by a person, whether to his legal right, character or status, such a complicit form of declaration can vividly legitimately be sought under section 42 of the Act.

Section 42 (Specific Relief Act 1877):

“Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.

Bar to such declaration. Provided that no Court shall make any such declaration where the

plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation.--- A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be trustee.”

Illustrations

(a)A is lawfully in possession of certain land.

The inhabitants of a neighboring village claim a right of way across the land. A may sue for a declaration that they are not entitled to the right so claimed.

(b)A bequeaths his property to B, C and D, “to be equally divided amongst all and each of them, if living at the time of my death, then amongst their surviving children”. No such children are in existence. In a suit against A’s executor, the Court may declare whether B, C and D took the property absolutely, or only for their lives, and it may also declare the interests of the children before their rights are vested.

(c)A covenants that, if he should at any time be entitled to property exceeding one lakh of rupees, he will settle it upon certain trusts.

Before any such property accrues, or any persons entitled under the trusts are ascertained, he institutes a suit to obtain a declaration that the covenant is void for uncertainty. The Court may make the declaration.

(d)A alienates to B property in which A has merely a life interest. The alienation is invalid as against C, who is entitled as reversioner. The Court may in a suit by C against A and B declare that C is so entitled.

(e)The widow of a sonless Hindu alienates part of the property of which she is in possession as such. The person presumptively entitled to possess the property if he survive her may, in a suit against the alliance, obtain a declaration that the alienation was made without legal necessity and was therefore void beyond the widow’s lifetime.

(f)A Hindu widow in possession of property adopts a son to her deceased husband. The person presumptively entitled to possession of the property on her death without a son may, in

a suit against the adopted son, obtain a declaration that the adoption was invalid.

(g)A is in possession of certain property. B, alleging that he is the owner of the property, requires A to deliver it to him. A may obtain a declaration of his right to hold the property.

(h)A bequeaths property to B for his life, with remainder to B’s wife and her children if any, by B, but if B die without any wife or children, to C.

B has a putative wife, D, and children, but C denies that B and D were ever lawfully married.

D and her children, may, in B’s lifetime, institute a suit against C and obtain therein a declaration that they are truly the wife and children of B.

Thus, by reading the above provision of law one can safely conclude that a court can issue a declaration in a suit for declaration in favour of a person who is entitled to any legal character or to any right as to any property which another person is denying. A suit for declaration would not lie in all cases, as it directly or indirectly does not affect the right of a person in respect of his legal character or ascribe to the property of that person.

In order to obtain this relief of declaration, the plaintiff must establish:

 That he, at the time of filing the suit, is entitled to any legal character or legal right to his property.

 That the defendant has denied or was interested in denying the character or the title of the plaintiff.

 The declaration asked for was a declaration under which the plaintiff was entitled to legal character or to a right to property.

 The plaintiff was not in a position to claim further relief than a bare declaration of his title.

 The legal character must be real, recognized by law, as such no suit involving any abstract, imaginary, or hypothetical right would be competent under Section 42 of the Specific Relief Act.

 The relief of declaration must of a person/plaintiff be related to his own rights or entitlements and most commonly to the right of the other person.

Thus, keeping the above parameters in view, it is not inconsistent with the mandate of the provision of Section 42 of the Specific Relief Act that negative declaration is always maintainable under this provision of law, but sometimes negative form of declaration may vary form case to case. In appropriate cases, courts are not debarred from issuing negative declarations, as court essentially deals with legal character, right, or status, the form of declaration is not material.

In Case of Narhar Raj by LRs and others Vs Tirpathybibi and other 2022 SCC Online AP 1032 It was held that a suit for a relief of negative declaration is maintainable.

Furthermore, in case of Abdul Ghani

and other Vs Province of Sindh through Secretary Board of Revenue and others reported as PLD 2019 Sindh 317 the court has held that:-

“----S. 42---Suit for declaration---Claim for negative declaration---Scope---Claim of negative declaration was not barred under the law but in order to reach on just conclusion, the pith and substance of the suit matters”

Similarly, in case of Mst. Jan Ara and others Vs Muhammad Zubair and others reported as 2012 CLC 1630 the court has held that

“----S. 42---Negative declaration---Scope--- Where in plaint, relief sought for is in negative form of declaration its refusal is not justified, as there is no absolute bar contained anywhere in law.”

7.The words ‘character’ and ‘property’ actually are of expansive nature. The word character may include the status and relation of one person with another person. The character may encompass within its scope and effect the privileges and position with respect to one’s activity. All attributes that the law recognizes in a person on account of office, position, status, or relationship may fall within the ambit of the term “legal character”.

8.So, declaration can be sought against any person who denies the first title to such a legal character or right, or against any person who intends to deny that title to such legal character or right.

9.A declaratory decree serves to affirm and strengthen the legal character, right, or status asserted

by a person and disputed by another. Such a declaration provides protection against future challenges or adverse claims regarding that right, character, or status. It also helps to prevent further litigation by placing a judicial imprimatur on the matter. In the majority of cases, declaratory relief is sought under Section 42 of the Specific Relief Act.

However, this provision is not the sole source of the court’s power to grant declaratory relief.

10.A civil court in excercise of its ordinarily civil jurisdiction referable to section 9 of civil procedure code may grant a declaration dehors the provisions contain in section 42 of Act. In appropriate cases when matter also not fall within the ambit of section 42 of Specific Relief Act.

11.In the present case, the

plaintiff/respondent has sought a declaration challenging Inheritance Mutation No. 1609 on the ground that the petitioner/defendant No. 1, Mst.

Khursheed Bibi, is not the daughter of Dilbar Khan, but rather the daughter of Fazal Din. It is alleged that the legacy of Dilbar Khan has been wrongly transferred in her favour. Apparently, a negative form of declaration carries a corresponding positive effect,

and therefore, a composite or consequential positive declaration can legitimately be sought under Section 42 of the Specific Relief Act, 1877. The most vital aspect of the case is the plaintiff's specific allegation that the petitioner/defendant No. 1 is not the daughter of Dilbar Khan, but rather the daughter of Fazal Din’s sister. This material point has been rightly addressed in D.F. Mulla’s Muhammadan Law, particularly under Section 344, which outlines the conditions for a valid acknowledgment of paternity.

Section 344 (4)

(4)the person acknowledged must not be known to be the child of another man.

Section No. 344(4) clearly stipulates that the person acknowledged must not be the child of another person.

In this case, plaintiff/respondent had specifically alleged that petitioner/defendant No.1 is the daughter of Fazal Din’s.

12.The fact that Mst. Khursheed Bibi was the daughter of Mst. Channan Jan, has not been denied.

The evidence of Azal Khan (PW-03) reveals that he clearly stated that at the time of marriage of Mst.

Channan Jan with Dilbar Khan, the age of Mst.

Khursheed Bibi was two or two and half years. He has been subjected to lengthy cross-examination, but his stance could not be shattered. It is also imported to be noted here that it was mentioned in the plaint that Mst.

Channan Jan had two daughters i.e.,

petitioner/defendant No. 1 Mst. Khursheed Bibi as well as Mst. Hafeeza Bibi. It was however, contended that Mst. Khursheed Bibi was daughter of mst.

Channan Jan from the wedlock of Fazal Din where as Mst. Hafeeza Bibi was born out of the wedlock of Mst.

Channan Jan with Dilbar Khan. If there had been any malafide intention of the plaintiff’s/respondents to deprive the petitioners from the legacy of Dilbar Khan, they could have claimed that Mst. Hafeeza Bibi was also not the daughter of Dilbar Khan which is not the case.

13.Another important aspect of the case is that Mst. Khursheed Bibi, despite being alive, has never turned up to deny the stance of

respondent/plaintiffs. Her husband Muhammad Arshad appeared and recorded his statement, but he failed to substaintiate the fact that Mst. Khursheed Bibi was the daughter of Dilbar Khan, through any documentary evidence. The impugned mutation No. 1606 was

entered on the behest of husband of

petitioner/defendant No. 1 where too, the respondents/plaintiffs raised on objection and the mutation was kept pending for sufficient period, but was later on attested. In the said mutation, father in law of the petitioner/defendant No. 1 was a verifying witness. The petitioner produced and examined the representative of NADRA as DW-03, but he failed to bring on record the “Form Bay” of the of the Mst.

Khursheed Bibi. He admitted during cross-examination that Ex.DW-3/1 was prepared at the instance of Mst.

Khursheed Bibi which does not bear any CNIC number, signature or thumb impression of Dilbar Khan. There is no plausible reason on record, which could justify the non-appearance of the petitioner/defendant Mst. Khursheed Bibi for the purpose of evidence. As such the learned Courts below have rightly decided the suit.

14.It is well settled that the High Court's jurisdiction under Section 115 of the C.P.C. is limited in cases of concurrent findings by competent Courts. It can only intervene if there are serious legal flaws, such as insufficient evidence, misreading or ignoring material evidence, reliance on inadmissible evidence,

abuse of jurisdiction, or perverse conclusions. Mere disagreement with factual findings or reappraisal of evidence does not justify interference unless there is gross misreading or overlooking of crucial evidence. In the case of “Aamir Afzal and another vs. S. Akmal (deceased) through L.Rs and 2 others” reported as 2024 SCMR 1649 the Hon’ble Apex Court has held that;

“While exercising jurisdiction under Article 115 of the C.P.C. the High Court has to first satisfy itself: (i) that the order of the subordinate court is within its jurisdiction, (ii) that the case is one in which the court ought to exercise jurisdiction; and that in exercising jurisdiction that court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. Section 115 applies only to cases in which no appeal lies, and where the legislature has provided no right of appeal. The manifest intention of the legislature is that the order of the trial court, right or wrong, shall be final, except in specific circumstances. It is, therefore, obvious that unless the case is not covered under Section 115 of the C.P.C. and the High Court was satisfied in this regard, then in such a case no power could be exercised to interfere simply because it differs, however profoundly, with the conclusions of the subordinate court regarding questions of law and facts.

Kanwal Nain and others v. Fateh Khan and others PLD 1983 SC 53 and Umar Dad Khan and another v. Tila Muhammad Khan and others PLD 1970 SC 288 ref.

The scope of jurisdiction of the High Court under Section 115 of the C.P.C. is limited in relation to concurrent findings of the competent courts. The exceptions to this rule are when the findings are based on insufficient evidence, misreading of evidence, non- consideration of material evidence, patent errors of law, consideration of inadmissible evidence, abuse of jurisdiction, and when the conclusions

drawn are perverse and based on conjectural presumptions. The erroneous decisions of fact are ordinarily not revisable and the mere fact that the High Court may differ on a question of fact or mixed question of law and fact is not a valid ground for interfering with concurrent findings. Moreover, the concurrent findings recorded on the basis of evidence are not susceptible to further review to justify interference by the High Court in revisional jurisdiction. The interference by a High Court in such jurisdiction would not be justified on the ground that reappraisal of evidence might suggest another view of the matter unless there has been a gross misreading of evidence and material evidence was ignored”.

15.Similarly, in the case of “Nasir Ali vs.

Muhammad Asghar” reported as 2022 SCMR 1054 the hon’ble apex court has held that:- “section 115, C.P.C empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in

the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the courts below while exercising power under section 115, C.P.C. Similarly, in the case of “Salamat Ali and others vs. Muhammad Din and others” reported as PLD 2022 Supreme Court 353, it was also held that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below. Similar view also reiterated by the Hon’ble Apex Court in the case of “Muhammad Sarwar and others vs. Hashmal Khan and others” PLD 2022 Supreme Court 13, where in para-6 it was held that it is well settled exposition of law, deducible from plethora of dictums laid down by superior Courts that section 115, C.P.C.

empowers and meted out the High Court to satisfy and reassure itself that the order of the subordinate court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or

with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law.

16.In view of the above discussion, the impugned judgments and decree of the two Courts below are neither the result of misreading and non- reading of evidence nor the petitioners could point out any material irregularity nor jurisdictional defect in the same, therefore, the same are upheld and maintained and consequently the instant revision petition is dismissed.

Announced

Shahid. /*

Sd/ J U D G E