Haji Muhammad Naeem Vs Malik Aman etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

(Judicial Department) CR No. 256-A/2016 With CM No. 153-A/2023

Haji Muhammad Naeem & another .....(Petitioners) vs Malik Aman & others.

....(Respondents)

Present: Chaudhary Hassan Murtaza, Advocate for the petitioners.

M/s Ikram ul Qayyum and Bakht Jamal Khan, Advocates for the respondents.

Date of hearing: 18.09.2025

JUDGMENT

SADIQ ALI, J.- This order is directed to dispose of instant Civil Revision petition as well as Civil Revision No. 295-A/2016, as both the petitions are the outcome of single consolidated judgment of the learned appellate Court dated 28.06.2016, whereby the appeals filed by the parties were dismissed and the judgment and

decree passed by the learned trial Court dated 29.09.2012, was maintained.

2.Malik Aman etc. (respondents No.

1 to 3) filed a declaratory suit to the effect that their mother Mst. Rehmat Jan was the daughter of Akbar Khan. Akbar Khan (the grand predecessor of the parties) was originally the owner of the property detailed in the heading of plaint. He had one son namely Abdul Rauf along with four daughters namely Rehmat Jan, Hukam Jan, Hazrat Jan and Basray. Upon death of Akbar Khan, his entire legacy was devolved upon Abdul Rauf through inheritance mutation No. 274 dated 17.02.1921, depriving the daughters of the deceased. It was further claimed in the plaint that the plaintiffs being the legal heirs of Mst. Rehmat Jan, were entitled to 7/48 shares in the legacy of deceased Akbar Khan but were unlawfully deprived of their due right. It was also the claim of the petitioners that Abdul Rauf son of Akbar Khan died issueless in the year 1965, while he was in Thailand while

Abdul Rasheed and Abdul Hameed were introduced as sons of Abdul Rauf, just to get favourable decision in earlier suit No. 432/1 filed on 19.02.1975 by Faiz Rasan and Abdul Sattar. Since the decree in suit No. 432/1 was obtained ex-parte through fraud, as such, the plaintiffs also sought its reversal. The suit was contested by the defendants by filing their written statement, wherein they have raised legal as well as factual objections. Learned trial Court framed issues, recorded pro and contra evidence and upon conclusion of trial, decreed the suit of the plaintiffs vide judgment and decree dated 29.09.2012. The contesting defendants as well as proforma defendants in the suit, filed their separate appeals against the judgment and decree of the learned trial Court.

The profroma defendants only challenged the judgment and decree of the learned trial Court to the extent of findings on issue No. 2, whereas the contesting defendants sought dismissal of the suit. Vide consolidated judgment dated

28.06.2016, learned Additional District Judge- III, Mansehra dismissed all the appeals. Not contended with the findings recorded by the learned appellate Court, the petitioners have approached this Court through these connected Civil Revisions.

3.I have heard arguments of learned counsel for the parties and perused the record.

4.Perusal of record reveals that the plaintiffs claimed that their predecessor Mst.

Rehmat Jan was the daughter of Akbar Khan and through inheritance mutation No. 274 dated 17.02.1921, she was deprived from the legacy of her father, therefore, the said mutation is liable to cancellation to the extent of rights of Mst. Rehmat Jan. The learned trial Court decreed the suit of the respondents/plaintiffs. On appeal, the learned appellate Court also dismissed the appeals by holding that the limitation would not operate against the inheritances rights and therefore, maintained the

decreed. The plaintiffs/respondents remained successful in proving that the Mst. Rehmat Jan was the daughter of Akbar Khan, by producing Syed Muzamil Shah (APW-5), Usman Shah (APW-6) and Mir Ahmed Shah (APW-7).

Therefore, the moot question for determination before this Court is “whether the respondents/plaintiffs could maintain a suit, challenging a mutation attested long ago, as a result whereof, third-party rights were created?” No doubt in ordinary cases of inheritance, the limitation is not given much worth and mostly, the cases are decided on the basis of evidence brought before the Court.

However, it is when an heir is deprived of his right in the legacy of his predecessor, by way of attestation of inheritance mutation and upon getting knowledge about infringement of his such right, he approaches the Court of law, seeking a declaration, the matter is tried and decided in the light of available evidence, however, such a right could only be claimed by

the person injuriously affected as a result of such inheritance mutation, or any other person, acting on his behalf in good faith. However, in cases where after attestation of inheritance mutation, third-party rights have accrued because of the afflux of time, the limitation is a pivotal question and cannot be left in vacuum merely on the ground that the question pertains to inheritance. In the instant case, the inheritance mutation of deceased Akbar Khan was attested on 17.02.1921 and it is the claim of the respondents/plaintiffs that by way of such mutation, the rights of their predecessor Mst.

Rehmat Jan, were infringed. Mst. Rehmat Jan has never questioned said mutation during her life time and as per available evidence, she died in the year 1936. Even after her death, the mutation was not called in question before any forum and for the first time, the plaintiffs/ respondents questioned the validity of said mutation through suit, filed in the year 1998 and admittedly by that time, the rights of third-party

had been created as a result of impugned mutation. The plaintiffs have claimed that some portion of the suit property has been acquired for the purpose of construction of Grid Station, however, the acquiring department was not arrayed as party to the suit. Recently, honourable Supreme Court of Pakistan, while giving judgment in the case of “Khaleelullah & Others Vs. Muhaim Khan & others” reported as PLD 2024 SC 600, was pleased to hold;

“In the case of denial of the inheritance to an heir, the cause of action to sue accrues to him, when the co-sharer(s)/ legal heir(s) in actual possession of the inherited property denies (actually) or is interested to deny (threatens) the share of the claimant legal heir in the inherited property. The actual denial of right of a co-sharer by the other co-sharer may occur, when the latter does something explicit in denial of the rights of former, such as by making a fraudulent sale or gift deed. This Court has recently

clarified that the transfer of property to a third party, be it through sale or gift, constitutes an actual denial of rights. In contrast, a simple annotation in the revenue record is regarded as a threatened or apprehended denial of rights.”

Reference may also be made to the cases of “Haji Muhammad Yunis v. Mst. Farukh Sultan (2022 SCMR 1282) and “Salamat Ali v.

Muhammad Din” (PLD 2022 SC 353).

5.The plaintiffs/respondents have never remained in possession of the suit property, nor their predecessor could be considered to be in constructive possession of the property. Thus the right of inheritance of the predecessor of plaintiffs/ respondents was actually denied during the lifetime of predecessor of Mst. Rehmat Jan, when the possession of the property was taken over by the predecessor of the defendants. In the case titled “Mst. Granan through legal heirs and others v.

Sahib Kamala Bibi and others” (PLD 2014 SC

167)the apex Court has held that the law of limitation would be relevant when the conduct of the claimant demonstrates acquiescence and particularly when third party interest is created in the inherited property. Relevant observations of the apex Court are reproduced for ready reference;

“The plaintiff had assailed the registered sale-deed dated 08.06.1916 and the sale mutation No. 1273 dated 23.12.1917. She had also question inheritance mutations No. 281 dated 05.12.1930, 2089 dated 01.09.199 and gift mutations of 11.11.1959 and further mutations made from time to time attested on 18.10.1956,

and 30.07.1987 and further all subsequent sale and gift mutations. The challenge was thrown in the year 1991 when she was more than 80 years old; as according to the evidence she was 6/7 years old when her father had died somewhere in the year 1911/12. Upon her father’s death the entire property was inherited by her as limited owner, which, upon her marriage in the year 1930, she had to

give up in favour of her step-sister, Mst. Bibi, born out of her mother’s wedlock with one, Rasool. Since then she had remained out of possession. It cannot be said that she was unaware as to how the property was handled there-after and of her rights therein. Rather her awareness is demonstrated by the order of the Collector, Mardan, dated 15.04.1942 where she was marked personally present. In the appeal before the Collector she had questioned the permanent transfer by Mst. Bibi of certain property alleging that the respondent was a limited owner. However, she had neither then or ever questioned the sale deed of the year 1916 till filing of the suit in the year, 1991, being well aware of such transfer. Again, as the above order of the Collector shows that the plaintiff was conscious and aware that a limited owner was not empowered to transfer permanently property inherited by him or her, she did not question the gift mutation by Mst. Bibi in favour of the latter’s mother, Mst. Habib Khanum, also the plaintiff’s mother, in the year 1945. It may also be noted that by then the North-West Frontier Province Muslim Personal

Law (Shariat) Application Act, 1935 had come into force and the plaintiff could have asserted her right of inheritance. While the property was further sold and resold, constructed and reconstructed, the plaintiff took no action to annul or prevent such transfers. When she filed the suit there were as many as 251 transferees of the property. The conduct of t he plaintiff clearly demonstrated acquiescence in all the impugned transfers of the property which amounting to waiver of her right. The transferees were, on account of the plaintiff’s inaction, led to believe that the transferors had valid titled in the suit property. The plaintiff had died during early stages of the litigation and has now represented by her legal heirs. The impugned concurrent findings of the two Courts on the above questions therefore, do not call for any interference.”

Reliance may also be placed on the case of “Mst. Phaphan v. Muhammad Bakhsh (2005 SCMR 1278)”, “Lal Khan v Muhammad Yousaf (PLD 2011 SC 657)” and “Atta Muhammad v. Maula Bakhsh (2007 SCMR

1446)”. Similarly, this Court in the case of “Muhammad Nawaz & others V. Ameer Bahadur & others (PLD 2023 Peshawar 12)”, held that;-

“After perusing the aforesaid judgments of the Apex Court I have reached at the conclusion that when a legal heir is deprived of his/her right of inheritance and he/she remains alive for a considerable period and do not challenge his/her deprivation from the legacy of the predecessor, then at later stage when the legacy changes many hand, the further legal heirs have no locus- standi to challenge the said inheritance mutation which remained unchallenged during the life time of their predecessor. In the present case, the immediate legal heirs of Muhammad Khan during their lifetime never challenged the said mutation, therefore, the suit which was filed in 2006 was barred by time as by then as evident from record a good number of transaction had taken place.”

6.In view of the above referred case law, it has now a well-developed law that in case where a legal heir was deprived of his right in the legacy of his/her predecessor and after attestation of the inheritance mutation, he/she remains alive for sufficient period without challenging the inheritance mutation, injuriously affecting his/her rights, upon his/her death, the legal heirs would have no locus-standi to question such injuriously affecting inheritance mutation, more particularly, when third-party rights have accrued in the suit property and the inheritance mutation remained unchallenged during life-time of the affected legal heir. The inheritance mutation in question was attested on 17.02.1921 and Mst. Rehmat Jan remained alive till 1936, but she never challenged said mutation. It was also admitted on record that the parties remained locked in litigation in respect of landed properties at different forums, however, the suit mutation was never questioned in the former proceedings. Even

after the death of Mst. Rehmat Jan, the respondents/ plaintiffs have not challenged the suit mutation and for the first time, the suit was filed in the year 1998, therefore, their suit was hit by Article 120 of the Limitation Act. The knowledge, as disclosed by the

respondents/plaintiffs in their suit, cannot be considered true, because it is admitted position on record that the parties had civil litigation inter-se, much prior to the filing of present suit.

Similarly, the acquiescence and waiver also operate against the predecessor of the respondents/plaintiffs because admittedly the actual possession of the property was with the predecessor of the petitioners/ defendants.

7.The second moot question for

consideration before this Court is “Whether the suit of the plaintiff would be maintainable in presence of order, judgment and decree dated 13.05.1999 passed in suit No. 351/1 where in the order, judgment and decree dated 30.07.1974, passed in suit No. 432/1 of 1974

was challenged?” Here it is important to mention that suit No. 351/1 was finally decided on 13.05.1999 where all the legal heirs of Akbar Khan were party to the suit and the respondents No. 1 to 3 never challenged the aforesaid decree by filing an application under Section 12(2) CPC, despite of the knowledge of the proceedings and instead challenged the same through separate suit and learned trial Court while recording its findings left this issue for further intrication in future. This finding of the learned trial Court was upheld by the learned appellate Court without application of mind. It is well settled principle of law after the insertion of provisions of Section 12(2) CPC that no separate suit would lie in respect of same cause of action. Section 12(2) CPC specifically bars fresh suit, which is reproduced hereunder for ready reference;

“12. Bar to further suit.—(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of

any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies.

(2)Where a person challenges the validity of a judgment, decree order on the plea of fraud, mis- representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.”

The legislative intent underlying Section 12 CPC is to secure finality of litigation and to prevent multiplicity of proceedings on the same cause of action. Sub-section (1) enacts a categorical bar upon the institution of a subsequent suit where the rules of procedure preclude a plaintiff from doing so. The object is to ensure that once a cause of action has been exhausted before a competent forum, the same is not revived or agitated again under the guise of a fresh suit. In other words, the law intends

that no party shall be permitted to re-litigate matters which either were, or could have been, put forward in the earlier proceedings. This provision, therefore, reflects the principle of interest “reipublicae ut sit finis litium” (it is in the interest of the State that there should be an end to litigation). Sub-section (2) further clarifies that where the validity of a judgment, decree, or order is assailed on serious grounds such as fraud, misrepresentation, or inherent want of jurisdiction, the proper recourse is not the filing of a new and independent suit, but rather an application to the very Court which rendered the impugned judgment, decree, or order. The rationale of the legislature is two- fold: first, to avoid conflicting decisions which may arise if separate suits are entertained by different forums; and second, to confer upon the Court which originally adjudicated the matter the exclusive jurisdiction to examine allegations which strike at the root of its own proceedings.

This mechanism also serves to maintain judicial

discipline, preserve the sanctity of decrees, and discourage collateral attacks upon judgments in a manner inconsistent with the orderly administration of justice. Collectively, both subsections embody a legislative policy aimed at curbing abuse of process, protecting the finality of judicial determinations, and directing litigants towards the appropriate and limited remedies available in law. The underlying theme is that litigation must come to a lawful conclusion and parties must not be permitted to indulge in endless recourse to the Courts by instituting fresh suits under one pretext or another.

8.The respondent/ plaintiff brought suit No. 161/1 on 11.03.1998 when the earlier suit No. 351/1 was pending. Instead of seeking their impleadment in the earlier suit under Order-I Rule-10 CPC or filing an application under Section 12(2) CPC for annulling the order/judgment and decree dated 13.05.1999 in

suit No. 351/1, they preferred to file fresh suit, which was barred by law.

9.The record shows that through CM No. 153-A/2023, permission was sought to bring on record the legal heirs of respondents No. 2, 3 and 5. Moreover, it was also contended that respondent No.1 also expired, but his legal heirs could not be brought on record. The Vakalatnama filed by Mr. Bakht Jamal Khan, Advocate, shows that the same was signed by the legal heirs of respondent No. 1. The august Supreme Court of Pakistan in the case reported as "Said Muhammad and others v. M. Sardar and others" (PLD 1989 SC 532) held as under:- "The Legislature in its wisdom by enacting Order XLI, Rule 20, C.P.C. empowered the Court to allow a party to be added in an appeal already filed when none could be added after the limitation had run out. The purpose more or less is the same as that with investing the Court with the powers to condone the delay under section 5 of the Limitation Act which is not in

terms applicable. The purpose is not far to seek as the Legislature must be presumed to have visualized situations where there could be an omission to implead the necessary parties either as a result of bona fide mistake or on account of no mistake of a party seeking addition of the necessary party or for some other justifiable reason"

Similarly, in the case of “Province of the Punjab through Deputy Commissioner/District Collector Rawalpindi and another Vs.

Muhammad Akram and others” reported as 2023 SCMR 755, it was held;

“The Court, in exercise of powers conferred under Order I, Rule 10, C.P.C may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined be struck out and add the party who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to

adjudicate upon and settle all the questions involved. The object of the Rule is to bring on record all the persons who are parties to the dispute relating to the subject matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings.”

Following the said judgment of the apex Court, this court, while giving its judgment in the case of “Niaz Muhammad Vs. Muhammad Naveed Khan and 2 others” (PLD 2025 Peshawar 21), held that;

“Section 153, C.P.C. preserves the power of the Court to amend, inter alia, any proceedings in a suit or all necessary amendments at any time for the purpose of determining the real question or issue and a party should not be denied relief on account of mere technicalities in the procedural law, which is intended and designed to foster the cause of justice and not to defeat it. This power can be exercised at any time not only during pendency of the lis and even after the passage of the decree at

the appellate stage. In this context, reliance can be placed on the judgment reported as "Ghulam Nabi v. Sardar Nazir Ahmad" (1985 SCMR 824).

10.Moreover, the persons intended to be impleaded in the instant petition, have already been arrayed as party in the connected Civil Revision Petition bearing No. 295-A/2016. Thus taking guidance from the law laid down by the august Supreme Court of Pakistan (as cited above) and in exercise of the powers under Order XLI Rule 20 read with Section 153, C.P.C., the CM for impleadment bearing No. 153-A/2023 is allowed.

Similarly, legal heirs of respondent No. 1, as mentioned in the wakalatnama of Mr. Bakht Jamal, Advocate, are also impleaded as respondents in the petition. The Office shall forthwith carry out the necessary incorporation in the memo of petition and all other relevant records, marking the addition in red ink.

11.Since both the learned Courts

below have thus fallen into error, while wrongly decreeing suit of the plaintiffs, which requires interference by this Court. Accordingly, this

Civil Revision petition is allowed and the impugned judgments and decrees passed by the learned Courts below are set-aside.

Consequently, the suit of the plaintiffs/ respondents stands dismissed. The connected Revision petition bearing No. 295-A of 2016, brought by the legal heirs of other daughters of Akbar Khan, based on the claim of plaintiffs in the main suit, as such, the same also stands dismissed.

Announced Dt: 18.09.2025 Tufail./*

JUDGE