Ajmal Kan vs Mst. Zeenat Jan etc.

Stereo.HCJDA 38.

Judgment Sheet

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

CIVIL REVISION NO.112-D of 2015

AJMAL KHAN

Versus Mst. ZEENAT JAN and others

JUDGMENT

Date of hearing: 11.03.2026

Applicant by: Mr. Mubaris Khan Alizai, Advocate. Respondent No.1 by: Mr. Abdullah Samiullah, Advocate. Respondents No.3, 4, 6 & Ex-parte.

8 by:

Respondents No.2, 5, 7, Nemo.

9, 11 & 12 by:

Amici Curiae: M/s Muhammad Ilyas Sheikh and Ch. Imran Hassan Ali, Advocates.

MIRZA VIQAS RAUF, J. This application in terms of Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “C.P.C.”) originates from the concurrent findings of the two courts, whereby suit for declaration instituted by respondent No.1 (hereinafter referred to as “respondent”) has been decreed.

2.Facts in brief necessary for adjudication of this revision application are that being aggrieved of gift mutation No.1150 dated 8th December, 1994, the respondent instituted a suit averring therein that she is residing in Birmingham, England and her father namely Muhammad Jan (hereinafter referred to as “deceased”) passed away on 27th January, 1995, leaving behind the applicant as well as the respondents herein as his legal heirs. It is asserted in the plaint that

the applicant succeeded in getting mutation No.1150 dated 8 th December, 1994 sanctioned, whereby property measuring 11 Kanal 18 Marla of the deceased was transferred in his name as a purported gift, excluding all other legal heirs, including the respondent and thus, she asserted that it is the result of fraud and is ineffective upon her rights. Suit was resisted by the applicant, who submitted his written statement wherein he controverted the assertions contained in the plaint, while justifying the gift mutation. From the divergent pleadings of the parties, multiple issues were framed and ultimately suit was decreed vide judgment dated 12th September, 2011. Feeling aggrieved, the applicant preferred an appeal before learned Additional District Judge, Attock but remained unsuccessful, as his appeal was dismissed by way of judgment and decree dated 17 th December, 2014.

3.Learned counsel for the applicant submitted that there was a previous suit during the pendency of which all the legal heirs of the deceased except the respondent effected compromise in the light whereof suit was dismissed. It is contended that in view of previous litigation, the present suit was not proceedable and was clearly hit by principle of res judicata. Learned counsel submitted that even otherwise present suit is suffering with numerous defects and the impugned judgments and decrees are not tenable. Learned counsel emphasized that findings of the two courts are though concurrent but are not tenable at all, being the outcome of gross misreading and non-reading of evidence. Placed reliance on HAZRATULLAH and others versus RAHIM GUL and others (PLD 2014 Supreme Court 380).

4.Conversely, learned counsel for the respondent defended the impugned judgments and decrees with the contention that same are founded on proper appraisal of evidence and are unexceptionable.

5.In the light of respective contentions of learned counsel for the parties, on 18th February, 2026 matter in controversy was encapsulated in two tiers and M/s Muhammad Ilyas Sheikh as well as Chaudhary Imran Hassan Ali, Advocates were appointed as amici

curiae for the purpose of assistance. The said order is reproduced below for ready reference and convenience :-

“This civil revision application arises out of a suit for declaration and injunction, instituted by respondent No.1 primarily questioning the validity of Mutation No.1150 dated 05th December, 1994. It is an admitted fact that initially the mutation in question was challenged by the respondents No.2 to 4 by filing suit for declaration and injunction wherein respondent No.1 and 5 were defendants. Respondent No.1 was however, proceeded against ex-parte and ultimately rest of the parties got settled their matter and recorded their statements and suit was dismissed by way of order dated 29th July, 1999. The applicant then got executed Mutation No.1659 dated 03rd April, 2002 transferring land measuring 07 kanal 3, 3/4 marla in favour of respondents No.3 and 4.

2.Though suit has been concurrently decreed by the two courts but two pivotal questions remained unaddressed. Firstly, the competency of the suit in presence of the previous litigation interse parties and secondly, the effect of Mutation No.1659 dated 03rd April, 2002, which is still unchallenged.

3.In order to resolve the controversy effectively, M/s Muhammad Ilyas Sheikh and Chaudhary Imran Hassan Ali, Advocates are appointed as amici curiae to assist the Court. Office to deliver copies of all necessary documents to the learned amici.”

6.Chaudhary Imran Hassan Ali, Advocate as amicus curiae, while addressing arguments submitted that Section 11 of the C.P.C. is not attracted to the present case, as the previous suit was neither heard nor decided. In furtherance of his contentions, learned amicus curiae has also drawn attention of this Court towards Order XVIII of the C.P.C. He also pointed out significance of the words used in the order dated 29th July, 1999 passed by learned Senior Civil Judge, Attock in the previous round on the basis of statement of the parties. Learned amicus submitted that in the light of previous statements of the parties and more specifically of the applicant, the latter mutation is of no adverse bearing on the rights of respondent. Placed reliance on GHULAM NABI AND OTHERS versus Seth MUHAMMAD YAQUB AND OTHERS (PLD 1983 Supreme Court 344), GHULAM ALI and 2 others versus Mst. GHULAM SARWAR NAQVI (PLD 1990 Supreme Court 1), KHAN MUHAMMAD LATIF KHAN, ADVOCTE versus NAJAM ALI (1999 CLC 1409) and GHULAM QADIR versus AHMAD ALI and 8 others (2002 MLD 632).

7.On the other hand, Mr. Muhammad Ilyas Sheikh, Advocate learned amicus submitted that in the light of previous statement of

the applicant recorded in the proceedings before the court, there is estoppel in his way to claim any right under the impugned mutation. It is contended by learned amicus curiae that gift mutation even otherwise is not proved by the applicant through any cogent and convincing material. Learned amicus submitted that the concurrent findings are based on proper reasoning. Placed reliance on HIDAYAT KHAN and others versus Mst. NASREEN and others (PLD 2025 Supreme Court 502) and Mst. FARZANA ZIA and others versus Mst. SAADIA ANDALEEB and others (2024 SCMR 916).

8.Heard. Record perused.

9.Parties to the suit are descendants of deceased, who passed away on 27th January, 1995. The root cause of controversy is mutation No.1150 (Exhibit-P7) whereunder land measuring 11 Kanal 18 Marla was purportedly gifted in favour of applicant by deceased. The respondent, being daughter of the deceased and sister of the applicant, while being offended from the gift mutation challenged the same by instituting the suit on the ground that it was fake and had been prepared to deprive her from the legacy of deceased. Suit was, however, contested by the applicant, being the defendant by filing written statement wherein he not only defended the gift mutation but raised multiple objections on maintainability of the suit. One of the objections on behalf of the applicant was that suit is barred by time to which effect, it is noticed that while instituting the suit, the respondent specifically asserted that she was residing abroad and was not having knowledge about the impugned mutation and when her husband came to Pakistan on 28th March, 2004, she became acquainted with the impugned gift mutation. To this effect Muhammad Sultan, being attorney of the respondent appeared as PW1, who reiterated the facts asserted in the plaint. He was though confronted with certain questions during cross-examination but his statement could not be shattered with regard to date of knowledge, so in view of availability of overwhelming evidence, suit was well within time and it was rightly adjudged so by both the courts.

10.Now adverting to the other merits of the case, it is noticed that suit property was admittedly owned by deceased regarding which mutation No.1150 was sanctioned by the revenue department in the name of applicant. It evinces from the record that initially a suit was instituted by respondents No.2 to 4 and Mukhtar Bibi predecessor- in-interest of respondent No.6 challenging the gift mutation before learned Senior Civil Judge, Attock, wherein the applicant and respondent alongwith respondent No.5 were impleaded as defendants. It would not be out of context to mention here that the respondent was proceeded against ex-parte whereas the remaining effected compromise in terms whereof, they got recorded their statements and ultimately suit was dismissed vide order dated 29th July, 1999. The question now arises before the Court is as to “whether the previous litigation would operate as hurdle by any means in the way of respondent to institute the present suit”.

11.Before pondering upon above question, it would be apt to first have an understanding of the principle of res judicata embodied in Section 11 of the C.P.C. which for ready reference is reproduced below :-

“Sec. 11.—Res Judicata—No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

From bare perusal of the above referred provision of law it is manifestly clear that in order to attract the rigours of Section 11 (principle of res judicata), one has to prove co-existence of five pre- conditions, which are as follows :-

i)The matter directly and substantially in issue in subsequent suit or the issue must be the same matter which was directly and substantially in issue either actually or constructively in former suit.

ii)The former suit must have been a suit between the same parties or between parties under whom they or anyone of them claim.

iii)The parties must have litigated under the same title in the former suit.

iv)The Court who decided the former suit must have been a Court competent to try subsequent suit in which such issue is subsequently raised.

v)The matter directly and substantially in issue in subsequent suit must have been heard and finally decided by the Court in the first suit.

There is no cavil that the matter in issue inter se parties is the same but it clearly evinces that the previous suit was not finally heard and decided by the court rather it was dismissed merely in the light of statements of the parties, excluding the respondent.

12.Order XVIII of the C.P.C. provides the mode of hearing of the suit and examination of witnesses and unless a suit reaches at such stage and passes through the test provided in the said provision of law one cannot say that suit was heard. Furthermore, if the statements of the parties recorded in the previous suit are examined, it is noticed that all the legal heirs of deceased except the respondent agreed that impugned mutation shall be cancelled. Moreover the widow as well as other daughters of the deceased agreed to relinquish their share in favour of the applicant and respondents No.3 & 4. Needless to observe that the relinquishment of the rights in the property/estate by the woman folk is always discouraged by the superior courts, being against the injunctions of Islam. To this effect guidance can be sought from GHULAM ALI and 2 others versus Mst. GHULAM SARWAR NAQVI (PLD 1990 Supreme Court 1).

The relevant extract from the same is reproduced below :- “The main points, of the controversy in this behalf get resolved on the touchstone of Islamic law of inheritance. As soon as an owner dies, succession to his, property opens. There is no State intervention or clergy's intervention needed for the passing of the

title immediately, to the heirs. Thus it is obvious that a Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only when the property has thus vested in the heir after the succession opens, that he or she can alienate it in a lawful manner. There is enough comment and case-law on this point which stands accepted.

Reverting to the vesting of the property in a Muslim heir, as a corollary to what has already been said, it is further to be held that if the State, the Court, the clergy, the executor, the administrator does not intervene, no other body intervenes on any other principle, authority, or relationship--even of kinship. Thus the brother, the father, husband, son or vice versa, does not or cannot intervenue as an intermediary. Here we are dealing with the brothers trying though illegally, as if a guardian-in- inheritance-so-called, of a sui juris sister, on allegedly "moral" basis, to oust her. It is clearly prohibited by Islam. The females cannot be treated so in our system. And we cannot in the present constitutional and legal system import or apply any foreign system or so-called common law, or law of nature in preference to our own. (See Haji Nizam's case PLD 1976 Lahore 930); as approved in Mohammad Bashir's case (PLD 1982 Supreme Court 139).

In this behalf, it would be of advantage to quote here the views, even of some non-Muslims, on two subjects of Islamic system:

(a)Law of inheritance; and

(b)females' position in it.

Islamic Law of Inheritance:

"The Muslim Law of Succession, Ilm-ul-Faraiz, which has been derived from the rules of succession to be found in the Quran" (See the L Text of the Quran at p. 98-101 of the 2nd Edition of Muslim Law by Saksena), "or in the Traditions, as well as from such of the Pre-Islamic customs, as were approved of by the Prophet (P.B.U.H.)is a great achievement of the Muslim jurists. As coherence and logic have imparted perfection to the system, it deserves our admiration". F.B. Tyabji observes, "The Muslim law of inheritance has always been admired for its completeness as well as the success with which it has achieved the ambitious scheme of providing not merely for the selection of a single individual or homogenous group of individuals, on whom the estate of the deceased should devolve by universal succession, but for adjusting the competitive claims of all the nearest relations." As to the excellence of the system in a formal sense, Sir William Jones has observed: "I am strongly disposed to believe that no possible question could occur on the Muslim Law of succession which might not be rapidly and correctly answered." (Jones Works, VIII, 204).

S. Viscy-Fitz Gerald's remark (S. V. Fitz Gerald, Muslim Law p.

20)in this connection is also very instructive, "In all systems of law, the doctrine of succession is, it has been said, the touchstone of the lawyer; the legal mind delights in its inevitable intricacies, the layman is repelled; and it is this truth of legal education of,

rather than any calculation of, material advantage, which is enshrined, in the 'Hadis': 'Learn the laws of inheritance and teach them to the people, for they are one-half of useful knowledge.' To Muslims the Sharia law of inheritance is ideally perfect; founded on the sure rock of divine revelation and worked out in the utmost detail by that mental ingenuity which God gave man for the purpose of understanding revelation. The logical strength of the system is beyond question; and, the fact that the results are sometimes impracticable does not in the Muslim eyes detract from its divine character. Human ingenuity admittedly cannot always carry out the fine distinctions of divine justice; and the system is reverenced as a matter of theological dogma even by those Muslims who, as a matter of custom, do not follow it." The claims of near relations have been rightly and justly adjudicated upon and in the words of Macnaghten: "In these provisions we find ample attention paid to the interests of all those whom nature places in the first rank of our affections; and indeed it is difficult to conceive any system containing rules more strictly just and equitable." (Macnaghten's preliminary remarks in 'Principles and Precedents of Muslim Law). The tribute paid to the system by Rumsey is no less exalted. He observes: "The Mohammedan Law of inheritance comprises beyond question the most refined and elaborate system of rules for the devolution of property that is known to the civilised world." (Preface, p. 1).

[See Saksena, Third Edition, on "Muslim Law Chapter XV Section 1 for these and other observations].

Females Position in Muslim Law.

"We shall deal briefly with the rights of females to inheritance as given the Quran. The Prophet lays down in effect, that blood relationship is the cause of title to succession. Then the Quran goes on to describe the rights of females to succession. "Covet not the grace by which God hath preferred some of you to others; unto men there is a portion of what they have earned, and unto women the portion of what they have earned." "Men ought to have the portion of what their parents and kindred leave, women a part of what their parents and kindred leave, whether it be little or much, let them have a determinable portion." "With regard to children, God commandeth you (to give) the male portion of two femals, and if there be females more than two, they shall have 2/3rd of that which the deceased leaves; and if there be only one, she shall have a half." "Half of what, your wives leave, shall be yours, if they leave no issues, but if they leave issues, then a fourth of what they leave shall be yours. And your wives shall have a fourth part of what you leave if you have no issues, but if you have issues, they shall have an eighth (1/8th) part of what you leave after paying the bequests and debts". "In short, Quranic heirs called "sharers" consist of those relations who were previously excluded in favour of the customary heirs, but whose claim on the score of proximity was not inferior to them. They may be grouped under the following heads:--

(1)husband or wife,

(2)female agnatic descendants,

(3)heirs, ancestors, including female ancestors, who are not customary

(4)sisters and brothers". collaterals, such as full and consanguine sisters and uterine sisters and brothers”.”

Recently, in the case of Syeda FOUZIA JALAAL SHAH versus FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad

and 14 others (PLD 2025 Federal Shariat Court 1) the Federal Shariat Court has also held that any custom or usage, which affects the rights of inheritance of women in any manner whatsoever, irrespective of the name by which it is called or known in any area of the country, is un-islamic and illegal and calls for actions against the perpetrator of such crime under Section 498-A of P.P.C., as such actions by the relevant authorities of the State falls within the scope of Amr bil Maroof Wa Nahi Anil Munkar, which is an important duty of the State under the Act X of 1991 (Enforcement of Shari’ah Act, 1991).

13.To the above effect it is noticed that while deciding the previous suit on the basis of statements of respective parties the learned Senior Civil Judge, Attock has recorded certain pivotal observations, which too are very pertinent for the proposition at hand. Same are reproduced below :-

“3. The parties have entered into compromise. The plaintiff No.3 Mst. Mukhtar Bibi and plaintiff No.4 Akbar Jan appeared in the court on 27.7.99 and made a statement of relinquishment of their rights. At the same time plaintiff No.1 appeared as general attorney on behalf of the defendant No. 2. The defendant No.1 Muhammad Ajmal also made a statement to the effect that sisters have relinquished their rights to the property and the property gifted to him by his father vide mutation No. 1150 dated 5.12.94 be distributed amongst the real brothers in equal shares. Since the plaintiff No.1 has become general attorney for the defendant No.2 who is sister of the plaintiffs No.1 and 2 and defendant No.1 whereas defendant No.3 being sister of the parties did not appear, as such, it has become a sort of consent decree which otherwise can not be granted specially in absence of the legal heirs viz defendants No.2, 3. In these circumstances the suit is dismissed, however, the defendant No.1 can transfer the property if standing legally in his name to his real brother if so interse decided by them subject to all just exceptions and legal restraint, with no order as to cost. File to records.”

The above noted discussion and survey make the answer to the framed question very unequivocal and specific. Thus I feel no cavil to hold that in the circumstances principle of res judicata does not attract at all to the present case. Reliance to this effect can be placed on GHULAM NABI AND OTHERS versus Seth MUHAMMAD YAQUB AND OTHERS (PLD 1983 Supreme Court 344) wherein somewhat similar facts and circumstances, the Supreme Court of Pakistan held as under :-

“9. Another objection to the maintainability of the suit proceeds from the contention that the matter had become res judicata in the appellants' suit. This suit, as already stated, had been filed against Sh. Fazal Elahi and respondent Seth Muhammad Yaqub for a permanent injunction. Sh. Fazal Elahi having conceded the suit in his written statement filed on 15-6-1966 the appellant's counsel prayed to the Court on 16-6-1966 that the suit be dismissed " "بعینہ دادرسیwithout any further proceeding, whereupon the suit was dismissed the same day in the following words:

"دعوی بعینہ داد رسی خارج کیا جاتا ہے۔ ٰ "بروۓ بیان باال It is submitted that the order in terms it was made was, though not a decree, an executable order and that Seth Muhammad Yaqub who had notice of the suit but had stood-by and let the order be passed was bound by it and could not collaterally bypass it. His failure to object to the withdrawal of the suit as having borne fruit operated as res judicata in regard to his interest in the property qua the appellants as also his co-defendant Sh. Fazal Elahi and as such his present suit was barred by the principle of res judicata particularly of constructive res judicata. Reference was made to Phillips v. Mitchell (1), in which it had been held that a ground of attack in a subsequent suit, if could have been alleged as ground of defence in a former suit but was omitted, was hit by the principle of res judicata. It was also submitted in this connection that at least Sh. Fazal Elahi who had conceded the suit was bound by the order and as such any decree for specific performance passed against him for transferring the property would be ineffective. It was further submitted that for the matter to be res judicata it was not necessary that there must have been passed a judgment or decree but that even an order passed by consent, express or implied, binds the parties. Reliance for this was placed on Muhammad Salim v. Mohiuddin (2) and Bakhtawar v. Amin (3). But the same as we will presently see have no relevance.

10.It is to be noted that in the appellants' suit, Seth Muhammad Yaqub had filed a written statement contesting the suit and the validity of any deal in regard to the property between Sh. Fazal Elahi and the appellants. Obviously his interest was in conflict with that of his co-defendant Sh. Fazal Elahi. The applicability of the principle of res judicata as between co-defendants in a suit has been repeatedly and consistently held by the Privy Council and the Courts in the sub-continent to be dependent upon the fulfilment of the following conditions

(1)The co-defendants were necessary and proper parties in the previous suit;

(2)there was conflict of interest between them;

(3)there was a necessity of decision on that conflict in order to give the plaintiff the appropriate relief; and (4) there was a final decision on that conflict. The principles, on the point bad been laid down as early as 24-7- 1886 by West, J., in Ramchandra Narayan v. Marayan Mahadev and another (4) in the following words "Where an adjudication between the defendants is necessary to give the appropriate relief to the plaintiff, there must be. such an adjudication—Cottingham v. Earl of Shrewsbury, 3 Hare.'s Rep. 627, and in such a case the adjudication will be res judicata between the defendants as well as between the plaintiff and defendants. But for this effect to arise, there must be a conflict of interest amongst the defendants and a judgment defining the real rights and obligations of the defendants inter se........"

The above view has prevailed throughout and a number of cases decided subsequently not only followed the principles set forth by West, J., but also elaborated on it, See Mt. Munni Bibi and others v. Tirloki Nath and others (5), Kishun Prasad v. Durga Prasad (6), Maung Sein Done v. Ma Pan Nyun (7), Kedar Nath v. Munshi Ram (8), Mohammad Saadat All v. Wiquar Ali (1), Chandu Lal Agarwalla v. Khalil-ur-Rahman (2), Ramaswami lyer v. Thumboyasami (3), Sukh Dial v. Mt. Bhop' (4), Bhola v. Sheo Chand (5), Radharani v. Binodamoyer (6), Kuppan Chettiar v. Ramaswami Chettiar (7), Allah Bukhsh v. Taggia (8), Sana Ullah v. Ghulam Qadir (9), and Fazal Dad v. Ahmad All (10). The written statements filed by Seth Muhammad Yaqub and Sh. Fazal Elahi in the appellant's suit made it clear that there was conflict of interest between them and that in order to give relief to the appellants, a decision in regard to the same was necessary but this was not done and no adjudication took place. The order of the Civil Court dismissing the appellant's suit was neither a decree nor a decision because no adjudication had taken place. Much stress was laid on the use of the words "" بعینہ دادرسی in the order, but those words had appeared in the order merely because such statement had been made by the appellant's counsel and not that the Court itself had come to any such finding. In fact the order was complete even without a mention of those words and all that the civil Court meant was to dismiss the appellant's suit as withdrawn. Obviously the order does not meet the requirements laid down as aforesaid for the applicability of the principle of res judicata. It is established law that a mere withdrawal of a suit does not operate as res judicata for the reason, if for nothing else, that there was no adjudication on merits See Ram Mal v. Upendra Datt (11) and Nand Lal v. Mt. Lakhmi (12). The order, therefore, passed in the appellant's suit on 16-6-1966 did not operate as res judicata and the suit of the Seth Muhammad Yaqub was as such not barred under section 11,

C. P. C.”

Even this Court has also adopted the same principles in the cases of GHULAM QADIR versus AHMAD ALI and 8 others (2002 MLD 632), KHAN MUHAMMAD LATIF KHAN, ADOVCATE versus NAJAM ALI (1999 CLC 1409) and Malik NAJIBULLAH KHAN ETC. versus Malik MUHAMMAD BAHADAR ETC. (1980 CLC 1216). The Peshawar High Court in the case of MUHAMMAD SAJJAD and others versus RAMESH and others (PLD 2025 Peshawar 59) observed that when litigation ended on the basis of a statement of parties, without conclusive determination of the disputed question of fact on merits between the parties, the same can at best be termed a decision on the basis of a compromise/settlement and; under such circumstances, the principle of res judicata would not attract to subsequent litigation.

14.Looking at the effect of latest mutation bearing No.1659 dated 3rd April, 2002 executed by applicant in furtherance of gift mutation; suffice to observe that for justifying the former, the applicant first

has to establish the validity and genuineness of the latter mutation. It is well established principle of law that whenever person(s) claim(s) title under gift orally or in writing, she/he/they has/have to independently plead the transaction of gift. To this effect, when written statement is examined, it is bereft of any necessary details as to time, date, place and the witnesses in whose presence offer and acceptance was made. Learned counsel for the applicant though contended that evidence was duly led to prove the ingredients of gift but suffice to observe that unless a fact is asserted in the pleadings no evidence can be led to that effect. Law is well settled that evidence beyond pleadings cannot be treated as a valid piece of evidence and is inadmissible. Guidance if needed, can be sought from Messrs PAK SUZUKI MOTORS COMPANY LIMITED through Manager versus FAISAL JAMEEL BUTT and another (PLD 2023 Supreme Court 482) and Sardar MUHAMMAD NASEEM KHAN versus RETURNING OFFICER, PP-12 and others (2015 SCMR 1698).

15.It is also pertinent to mention here that whenever it is asserted that gift orally or in writing has been effected, the donee(s)/ beneficiary(ies) is/are obliged to prove the transaction(s) independently, while leading tangible evidence with regard to the basic ingredients in the shape of offer, acceptance and delivery of possession. From the comparative analysis of the respective statements of the witnesses produced by the applicant in support of his claim it appears that the statements are wavering. In this eventuality, it is duly established on the record that the applicant has failed to prove the necessary three basic ingredients of gift. Reliance in this respect can be placed on BILAL HUSSAIN SHAH and another versus DILAWAR SHAH (PLD 2018 Supreme Court 698), Mst. SAADIA versus Mst. GUL BIBI (2016 SCMR 662) and RAB NAWAZ and others versus GHULAM RASUL

(2014 SCMR 1181).

16.It is well entrenched principle of law that the Courts will take a hard look at the transaction(s) in which donee(s) claiming right under gift(s), resulting into exclusion of other heir(s) is/are required by law to establish the original transaction(s) of gift irrespective of

the fact whether such transaction(s) was/were reduced into writing or not. Guidance in this respect can be sought from HIDAYAT KHAN and others versus Mst. NASREEN and others (PLD 2025 Supreme Court 502).

The relevant extract from the same is reproduced below :- “4. It is an irony that despite being a Muslim Society, we have, out of greed, shunned the teachings of Islam especially in respect of matters of inheritance involving property/land of the deceased propositus and such designs are achieved by using a tactic as to gift, tamleek by the deceased propositus. When such situation arises and a person knocks the door of the Court in order to get his/her lawful right(s)/share from the legacy of propositus, the Court(s) have to ponder upon and plunge deep into the facts of the case, so as to fetch the truth by evaluating and scrutinizing evidence of the parties. As such, when such a transaction is put under challenge, the following principles are to be fulfilled and considered:

a) Beneficiary of the impugned transaction of gift/transfer of immovable property(s) bears the heavy onus to prove the transaction;

b) The beneficiary of a gift has to plead and prove three mandatory ingredients of gift i.e. declaration/ offer by the donor, acceptance of gift by the donee and delivery of possession in pursuance of the gift; c) The possession of immovable property by one of the siblings/ L.Rs. to the exclusion of other legal representatives will be treated as constructive possession on behalf of all others unless proved otherwise;

d) In case of oral transactions, it is compulsory for a beneficiary of oral transaction to prove the same through unimpeachable evidence by stating and averring mandatory material particulars in the pleadings i.e. time, date, venue/place, the witnesses in whose presence the alleged transaction was brought about; e) The oral transaction of transfer of immovable property (original transaction), be it sale, gift/tamleek, relinquishment or will etc. has to be proved separate from its incorporation/ attestation in revenue record by way of sanctioning of the mutation since a mutation cannot by itself be considered a document of title; f) Where a gift, which excluded a legal heir, irrespective of whether such transaction is in the form of registered deed, the donee is required to prove original transaction and must justify the exclusion of a legal heir from the estate;

g) Parties are bound by their pleadings; no amount of evidence can be led beyond the scope of pleadings; and in case any such evidence is brought on record, the Court cannot consider and rely upon the same and has to discard it;

h) Mere efflux of time does not extinguish the right of inheritance, therefore, the question of limitation in case of inheritance and fraud is not attracted and becomes insignificant.

Now, when facts of the instant case are weighed on the touchstone of the principles settled by this Court in the precedents developed from decades with the evolution, it can

safely be concluded and observed that the gift in the case in hand was conditional because the possession was not delivered to the petitioner(s) rather it is evident from the recital of the gift deed that the donor would retain the possession during his lifetime, meaning thereby one of the ingredient(s) of a valid gift was missing and when a document creates a future obligation(s) or right(s), it has to be compulsorily registered and when position remains otherwise, as in the present case, such document does not consider any right(s) in view of command of section 49 of the Registration Act, 1908 read with section 123 of the Transfer of Property Act, 1882; therefore, the learned High Court has rightly construed law on the subject in this regard. Moreso, when such a document, creating future obligation(s) and right(s) is executed, the same, when challenged, requires to be proved by producing two marginal witnesses as per mandate of Article 79 of the Qanun-e- Shahadat Order, 1984, which is lacking in this case as none of them was produced and the witnesses produced in the witness box for identification of their signature(s) were not sought to be produced as secondary evidence by moving an application disclosing the incapability, inability or death of the marginal witnesses; therefore, this aspect of the case has also rightly been considered and pondered upon by the three Courts below, concurrently. Additionally, the scribe of the purported gift deed was also not brought into the witness box and the grandson of the scribe, who was produced as P.W.2, categorically admitted that his father was alive but being immediate successor of the scribe, he did not appear in the witness box and even the register maintained by the scribe was not brought on record through proper custody. All this establishes that the petitioner(s) could not prove their case by leading unimpeachable, confidence inspiring and strong evidence qua the purported gift deed.

5.More and above, the petitioner(s) could not plead and prove as to which were the circumstances and incidents that the propositus despite being a Muslim proceeded to deprive his legal heirs/sons and gifted out his property to the present petitioner(s)/grandsons/sons of Murad Khan. Pleading and proving of such facts was necessary and sine qua non, which are missing in the instant case.”

Reference to the above effect can also be made to Mst. FARZANA ZIA and others versus Mst. SAADIA ANDALEEB and others (2024 SCMR 916), Mirza ABID BAIG versus ZAHID SABIR (DECEASED) through LRs and others (2020 SCMR 601), FAREED and others versus MUHAMMAD TUFAIL and another (2018 SCMR 139) and MUHAMMAD AHMAD CHATTA versus IFTIKHAR AHMAD CHEEMA and others (2016 SCMR 763).

17.It would not be out of context to mention here that mutation(s) by itself is/are not the original transaction(s) of gift, rather it is/are the outcome of actual transaction(s) which may has/have taken place prior to the incorporation of mutation(s). The applicant was thus obliged to plead the original transactions if any in order to prove the

validity of mutation in question. To this effect Section 42 of the Punjab Land Revenue Act, 1967 is also clear, which reads as under:- “42. Making of that part of periodical records which relates to land-owners.– (1) Subject to the other provisions of this Chapter, a person acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a land- owner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate, who shall–

(a)record such report in the Roznamacha to be maintained in the prescribed manner,

(b)furnish a copy of the report so recorded, free of cost, to the person making the report; and

(c)send a copy of the report, within a week of its receipt by him, to the office of the Union Administration within which the estate is situated.

(2)If the person acquiring the right is a minor or is otherwise unable to report, his guardian or other person having charge of his property shall make the report to the Patwari.

(3)The Patwari shall enter in his register of mutations every report made to him under sub-section (1) or sub-section (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those sub-sections and has not been so made.

(4)The report made to the Patwari under sub-section (1) or sub-section (2) or recorded by him under sub-section (3) shall be displayed in such manner as may be prescribed.

(5)If the Patwari fails to record or to display a report made to him under sub-section (1) or sub-section (2), the person making the report may make the report, in writing, to the Revenue Officer concerned and the Union Nazim of the Union in which the estate is situated, by registered post acknowledgement due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations.

(6)A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the Patwari and entries made in that register, and, shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.

(7)Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under sub-section (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Zila Council, Tehsil Council or Town Council

concerned, whose signatures or thumb-impressions shall be obtained by the Revenue Officer on the register of mutations.

(8)An inquiry or an order under sub-section (6) shall be made in the common assembly in the estate to which the mutation, which is the subject matter of the inquiry, relates.

(9)Where a Revenue Officer makes an order under sub-section (6) in regard to the acquisition of any right, an entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of any entry in any record previously prepared, which, by reason of the acquisition, has ceased to be correct.

(10)If within three months of the making of a report of the acquisition of a right under sub-section (1) or sub-section (2), or the recording by the Patwari of an entry in the Roznamcha under sub-section (3) respecting the acquisition of any right, no order is made by the Revenue Officer under sub-section (6), he shall report the cause of delay to the Collector in the prescribed manner.

(11)The Revenue Officer shall, in the prescribed manner, send or cause to be sent, the gist of an order made by him under sub- section (6), to the person whose right is acquired, and also to the office of the Union Administration in which the estate is situated.”

(Underlining supplied for emphasis)

Guidance to the above effect can be sought from Mst. RAMZANU BIBI versus IBRAHIM (deceased) through L.Rs. and others (2025 SCMR 955).

18.It is trite law that mutation(s) by itself does/do not confer any right or title upon the person(s) claiming benefit therein. Once a mutation is challenged, the party that relies on such mutation(s) is/are bound to revert to the original transaction(s) and to prove such original transaction(s) which resulted into the entry or attestation of such mutation(s) in dispute. This oft repeated principle of law is quite logical because a mutation not being a title deed, is merely evidence of some original transaction between the parties that had been struck somewhere prior to entry of a mutation. Reliance can safely be placed on the cases of MUHAMMAD IQBAL and another versus MUKHTAR AHMAD through L.Rs. (2008 SCMR 855) and MUHAMMAD AKRAM and another versus ALTAF AHMAD (PLD 2003 Supreme Court 688).

19.There is yet another important aspect; it is duly established on the record that in the previous round, the applicant himself got recorded his statement before the court agreeing on the cancellation

of gift mutation in furtherance whereof suit was dismissed, he is thus now precluded to take a summersault on the principle of estoppel as ordained in Article 114 of the Qanun-e-Shahadat Order, 1984.

20.So far judgment in the case of Hazratullah supra heavily relied upon by learned counsel for the applicant is concerned; it is observed that facts in the said case are entirely distinct and different from the present case. Even otherwise in the said case, the defendant therein was proceeded against ex-parte and ultimately ex-parte decree was passed, which was not challenged by the aggrieved party through an appeal and instead later on instituted a suit for the same cause, so the principles laid down therein are not attracted to the present case at all.

21.There are concurrent findings of facts recorded by both the courts below. After having scrutinized the record, I am of the considered view that concurrent findings arrived at by both the courts below are based on proper appraisal of evidence and there is no misreading or non-reading of evidence on part of any of the courts below. The revisional jurisdiction is to be exercised, while keeping in view the principles enshrined in Section 115 of the C.P.C. The superior courts are always reluctant to interfere with the concurrent findings, unless some patent illegality or material irregularity crept up on the record or pointed out by the applicant(s). The exercise of revisional powers is always guided by the necessary pre-conditions laid down in the above referred provision of law. The scanning of evidence and the perusal of impugned judgments do not reflect any illegality or material irregularity, justifying interference by this Court. Reference in this respect can be made to Mst. ZARSHEDA versus NOBAT KHAN (PLD 2022 Supreme Court 21), MUHAMMAD SARWAR and others versus HASHMAL KHAN and others (PLD 2022 Supreme Court 13) and GHULAM QADIR and others versus Sh. ABDUL WADOOD and others (PLD 2016 Supreme Court 712).

22.Before parting, it would be apposite to observe that the applicant, being brother succeeded in incorporating the mutation in question depriving all the other legal heirs including the respondent.

Being aggrieved initially a suit was instituted by respondents No.2 to 4 wherein despite agreeing on the cancellation of mutation through his statement before the court of law, the applicant remained persistent to claim himself owner of the property on the basis thereof. This constrained the respondent to institute the present suit and she being overseas remained suffering with the agony of protracted trial in the suit, which lasted about ten years. Now a days, it has become a trend that the chronic litigants use the process of law to fulfill their personal designs through baseless proceedings. It is thus high time to curb such tendency in order to lessen the unnecessary burden upon the dockets of the courts and to pave way for the litigants, who have genuine claims to agitate their grouse for the consideration of the courts. In somewhat similar circumstances, in the case of Qazi NAVEED UL ISLAM versus DISTRICT JUDGE, GUJRAT and others (PLD 2023 Supreme Court 298), the Supreme Court of Pakistan has held as under:-

“11. Such frivolous, vexatious and speculative litigation unduly burdens the courts giving artificial rise to pendency of cases which in turn clogs the justice system and delays the resolution of genuine disputes. Such litigation is required to be rooted out of the system and one of the ways to curb such practice of instituting frivolous and vexatious cases is by imposing of costs under Order XXVIII, Rule 3 of the Supreme Court Rules, 1980 ("Rules"). The spectre of being made liable to pay actual costs should be such as to make every litigant think twice before putting forth a vexatious claim or defence before the Court. These costs in an appropriate case can be over and above the nominal costs which include costs of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost, besides the amount of the court fee, process fee and lawyer's fee paid in relation to the litigation. Imposition of costs in frivilous and vexatious cases meets the requirement of fair trial under Article 10A of the Constitution, as it not only discourages frivilous claims or defences brought to the court house but also absence of such cases allows more court time for the adjudication of genuine claims. It also incentivizes the litigants to adopt alternative dispute resolution (ADR) processes and arrive at a settlement rather than rushing to courts. Costs lay the foundation for expeditious justice and promote a smart legal system that enhances access to justice by entertaining genuine claims. The purpose of awarding costs at one level is to compensate the successful party for the expenses incurred to which he has been subjected and at another level to be an effective tool to purge the legal system of frivolous,

vexatious and speculative claims and defences. In a nutshell costs enourage alternative dispute resolution; settlements between the parties; and reduces unnecessary burden off the courts, so that they can attend to genuine claims. Costs are a weapon of offence for the plaintiff with a just claim to present and a shield to the defendant who has been unfairly brought into court.”

Reliance to this effect can also be placed on ZAKIR MEHMOOD versus SECRETARY, MINISTRY OF DEFENCE (D.P), PAKISTAN SECRETARIATE, RAWALPINDI and others (2023 SCMR 960) and CAPITAL DEVELOPMENT AUTHORITY, CDA through Chairman, CDA, Islamabad versus AHMED MURTAZA and another (2013 SCMR 61).

23.For the foregoing reasons, this application is hereby dismissed with costs of Rs.5,00,000/-, which shall be recovered from the applicant and shall be deposited in any approved Charitable Trust within one month. In case of failure, it shall be recovered as arrears of land revenue.

(MIRZA VIQAS RAUF)

JUDGE

APPROVED FOR REPORTING

JUDGE

Shahbaz Ali*