Sardar Khan vs Munawar Hussain etc.

Stereo.HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

C.R. No.3221 of 2010

Sardar Khan (deceased) through L.Rs. etc.

Vs.

Munawar Hussain etc.

JUDGMENT

Date of Hearing 04.05.2026 The Petitioners by Mr. Irfan Younas Dar, Advocate The Respondents by M/s. Muhammad Asif Shahzad & Ahmad Kamal Khan, Advocates

MALIK WAQAR HAIDER AWAN, J. This civil revision is filed by Sardar Khan (Predecessor in interest of the present petitioners) against the judgment and decree dated 15.12.2008 passed by the learned Civil Judge 1st Class, Kharian, District Gujrat whereby the suit for declaration coupled with consequential relief instituted by Munawar Hussain/plaintiff (hereinafter referred to as “respondent No.1”) was decreed. The revision petition further assails the judgment and decree dated 22.06.2010 passed by the learned Addl. District Judge, Kharian, District Gujrat whereby the appeal preferred by Sardar Khan/defendant No.1 was dismissed. During the pendency of this civil revision, Sardar Khan died and consequently his legal heirs, impleaded as petitioners No.i to viii, have been brought on record and shall hereinafter collectively be referred to as “the petitioners.”

2.Brief facts of the case are that respondent No.1 filed a suit for declaration on the premise that land measuring 02-kanal 14-marlas situated in Mouza Bansarian was originally owned by the vendors (mentioned in the plaint), out of which 17-marlas was purchased by his brother and the remaining 01-kanal & 17-marlas was purchased by him after payment of full consideration; that possession was delivered to him and he raised construction thereupon; that mutation to the extent of 13-marlas could not be sanctioned due to absence of some vendors,

however, subsequently the said land was collusively exchanged by the attorney of the vendors in favour of predecessor in interest of the petitioners through mutations No.3264 and 3265 dated 27.07.2004; that the said mutations were challenged as being fraudulent, illegal and ineffective upon his rights. Suit was contested by predecessor in interest of the petitioners and respondents No.2 to 4. Learned trial court after framing seven key issues including one of relief decreed the suit vide impugned judgment and decree dated 15.12.2008 and cancelled the impugned mutations which findings were affirmed by the learned appellate court vide impugned judgment and decree dated 22.06.2010. Hence, this civil revision.

3.Learned counsel for the petitioners submits that out of total land measuring 02-kanal & 14-marlas only 13-marlas remained, which admittedly belonged to respondents No.2 and 3 who validly transferred the same in favour of predecessor in interest of the petitioners through duly sanctioned exchange mutations, which carry presumption of truth. Further submits that the entire case of respondent No.1 is based upon an alleged oral agreement attributed to Bashir Ahmad/respondent No.4 who categorically denied the existence of any such agreement and also denied having any authority or power of attorney from the true owners at the relevant time. Further adds that the alleged oral agreement was neither specifically pleaded nor proved through cogent evidence and lacks material particulars such as date, time, place and mode of payment. Further maintains that in absence of lawful authority, respondent No.4 could not bind the true owners, therefore, the alleged transaction is legally unenforceable. Further avers that the proper remedy, if any, was a suit for specific performance and not a suit for declaration and that the learned courts below have wrongly shifted the burden of proof upon the predecessor in interest of the petitioners. He places reliance upon various judgments including “Muhammad Riaz and others Vs. Mst. Badshah Begum and others” (2021 SCMR 605), “Hafiz Qari Abdul Fateh through L.Rs. Vs. Ms. Urooj Fatima and others” (2024 SCMR 1709), “Saddaruddin (since deceased) through L.s Vs. Sultan Khan (since deceased) through LRs and others” (2021 SCMR 642), “Mubarik Ali through L.Rs. Vs. Amroo Khan through

L.Rs.” (2007 SCMR 1714), “Mai Rashid Beg Vs. Rehmat Ullah Khan and 4 others” (PLD 2001 Supreme Court 443) and “Muhammad Younis and others Vs. Mst. Muhammad Bibi and others” (2001 YLR

4.Conversely, learned counsel for the respondents supports the impugned judgments and decrees and submits that both the learned courts below have correctly appreciated the evidence on record. Further adds that respondent No.4 while appearing as DW-1 admitted receipt of entire sale consideration from respondent No.1 and also admitted that possession of the suit property is with respondent No.1. Further submits that despite receiving full consideration, respondent No.4 subsequently exchanged 13-marlas of land in favour of predecessor in interest of the petitioners in order to defeat the lawful rights of respondent No.1. He places reliance upon judgments reported as “Muqarrab Khan and others. Vs. Haji Guli Shah and others” (PLD 2026 Peshawar 7), “Javaid Iqbal Vs. Abdul Aziz and another” (PLJ 2006 SC 127), “Mst. Arshan Bi through Mst. Fatima Bi and others Vs. Muala Bakhsh through Mst. Ghulam Safoor and others” (2003 SCMR 318) and “Muhammad Ayub and 14 others Vs. Salim and 6 others”

(2022 CLC 1740).

5.Arguments heard. Record perused.

6.It is not disputed that the land measuring 13-marlas originally belonged to respondents No.2 & 3. Even if, for the sake of argument, it is presumed that Bashir Ahmad/respondent No.4 acknowledged or entered into an oral agreement regarding this portion on behalf of respondents No.2 & 3 in favour of respondent No.1, such an arrangement could not confer any legal right upon respondent No.1. At the relevant time, respondent No.4 admittedly had no power of attorney or lawful authority from respondents No.2 and 3 to deal with their property. Any subsequent power of attorney executed in his favour in the year 2004 cannot operate retrospectively as it is not the case of respondent No.1 that any deal ever directly struck between him and respondents No.2 & 3 nor such fact is alleged in plaint so as to validate an earlier alleged transaction. It is a settled principle of law that no person can transfer a better title than he himself possesses, nor

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can he bind another in respect of property without express authorization.

7.A bare reading of paragraph No.5 of the plaint further fortifies this legal position wherein respondent No.1 himself pleaded as under:- ہیہکدماعمیلع2اور3ریبونکلموہےنیکوہجےسارایضدعتادی0-13Mاکااقتنلقحبرہظمدمیع ہنرکواےکساور دماع ہیلع ربمن 4ےن ارقار ایک ہک دماع ہیلع ربمن 3-2اک اتخمر انہم احلص رکےن ےک دعب ارایض دعتادی 0- 13Mرہظم دمیعےکانمااقتنلدصتقیرکوادےاگ۔

This admission in the plaint clearly establishes that at the relevant time respondent No.4 had no authority from respondents No.2 & 3 and will transact in future with a contingency i.e. obtaining power of attorney. Such a conditional arrangement in absence of direct striking of deal of respondents No.2 & 3 with respondent No.1 demolish the whole case of respondent No.1.

8.Furthermore, paragraph No.7 of the plaint exposes inherent contradictions in the plaintiff’s case. On the one hand, he relies upon an alleged oral sale whereas on the other, he admits lack of formal transfer. The relevant pleading reads:- ہی ہکدماع ہیلع ربمن 1ےن دماع ہیلع ربمن 4ےک رمہاہ اسز ابز رکےک ارایض دعتادی 0- 13Mوج ہک رہظم دمیع ےندماع ہیلع2اور 3ےسہعیب زابینرخدییکوہیئےہاور ومعقرپاچردویاریانبیئوہیئاوراساب اک ملدماعہیلعربمن1وکوخبیب ملےہ،اسےنااقتنلربمن3265-3264ابتدہلقحبوخددصتقیرکواےئلاتہکارا یضدنمرہجنمضربمن1ںیماھکہت رشکی نب ےکس وج ہک ااقتنال ربمنی 3264اور 3265دصمہق ومرہخ 2770772004وقحق دمیع رپ اکدعلم اور ریغومرثںیہویکہکنارایضدعتادی0- 13Mرہظمدمیعےنرعہصدرازےسغلبماکیالھکسیتزہارروےپںیمدماع ہیلعربمن2اور3ےسرخدیرکریھکےہاورومعقرپاچردویاریانبیئوہیئاوراکیرمکےاوررٹیمیلجباوروارٹپمپبصن رکواای وہا ےہ اور رہظم دمیع اکلم امکل و اقضب ارایض ےہ۔ ااقتنل ربمنی 3264اور 3265ابتدہل رفیض اور یلعج ںیہومعقرپوکیئہضبقاج دبتلیہنوہےئںیہ۔اورومعقرپارایضاکاکلمامکلواقضبرہظمدمیعےہ۔دماعہیلعربمن 2اور3ارایضذموکرہوکرہظمدمیع وکہعیبرکےندعبارایضوکابتدہلایہعیبرکےنےکاجمزہنےھتاوردماعہیلعربمن4ےن دوھہک دیہ اور رفاڈ رکےت وہےئااقتنلدتموعہیقحب دماع ہیلع ربمن 1دصتقی رکواےئ اس ےئل ااقتنل ربمن 3264اور 3265وقحقدمیعرپاکدعلموریغومرثںیہاوررہظمدمیع یہتحتہعیب زابیناکلمامکلواقضبارایضدتموعہیےہ۔ The above averments not only lack material particulars but are mutually inconsistent. A plea of completed oral sale coupled with simultaneous assertion that no effective transfer or mutation took place reflects uncertainty in the very foundation of the claim. Such

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pleadings fall short of the requirement of specific and definite averments mandated by law. It is necessary to mention here that inspite of the fact that respondent No.1 failed to even reiterate the ingredients of oral sale i.e. time, date, place and names of witnesses in his plaint.

9.The learned trial court while relying upon the statement of Bashir Ahmad/respondent No.4 who appeared as DW-1 has selectively reproduced portions of his testimony without appreciating its entirety, particularly the absence of authority at the relevant time. A holistic reading of his evidence reveals material admissions which negate the plaintiff’s case. DW-1 deposed during cross-examination that:-

رمےل ےک ابیق امتم ارایض اک وسدا13 بج ایمں اخں ےک اسھت وسدا ایک وت وکیئ ااٹشم ہن اھکل ایگ اھت۔ اموساےئ ںیمےنیہایکاھت۔

thereby confirming that no written agreement or document was executed and deal had taken place except 13-Marlas of land . Likewise, he stated:-

یسکدرگیامکلےنوسداہنایکےہ،ہیدرتسےہہکاسہگجاکوسداںیمےنیہایکاھت which clearly indicates that the alleged transaction was carried out by him alone without participation or proven authority from the true owners. He further deposed that:-

ارایضاچردویاریرپبجےسااقتنلوفغراورونمروریغہوہےئاسوتقےس2K-14Mہیدرتسےہ رمےلےک13ہضبقاناکےہ۔ازوخد اہکاموساےئ

which itself reflects uncertainty and ambiguity regarding the exact subject matter and extent of the alleged transaction. These crucial assertions and facts, when read cumulatively, demolish the plaintiff’s assertion of a valid and enforceable transaction. Even otherwise, the evidence of DW-1 reflects uncertainty regarding the essential terms of the transaction. He deposed that the amount was received on a per

marla basis without clarity of total consideration and further deposed that:-

رمےلیکرمقووصلیکیھت۔2K-14Mہیطلغےہہکںیمہلمجارایض

The omission of the learned courts below to consider these aspects amounts to misreading and non-reading of evidence. Both the learned courts below failed to give due weight to the legal consequence flowing from the admitted lack of authority which goes to the root of the matter and renders the alleged agreement wholly unenforceable.

10.Even otherwise, the entire case of respondent No.1 rests upon an alleged oral agreement to sell. It is well settled that such an agreement must be specifically pleaded with full particulars including the date, time, place, consideration and names of witnesses. A bare perusal of the plaint reveals that these essential details are conspicuously absent. The omission is fatal. The law under Order VI Rules 2 and 4 CPC mandates that material facts and allegations of fraud or misrepresentation must be pleaded with specificity so as to prevent subsequent elaboration. In the absence of such pleadings, no amount of evidence can be looked into.

11.When confronted on this aspect, learned counsel for the respondents argued that the learned courts below have the authority to treat or convert a suit for declaration into one for specific performance. While there is no cavil with this general proposition, such conversion cannot cure foundational defects in pleadings. The court cannot supply missing facts or reconstruct a case which was never properly set up. Even if the present suit was to be treated as one for specific performance, the absence of necessary pleadings and proof of an enforceable oral agreement to sell would still be fatal to the claim of respondent No.1.

12.The learned courts below have also failed to appreciate that the predecessor in interest of the petitioners derived title through duly sanctioned mutations No.3264 and 3265 dated 27.07.2004 which form part of official revenue record and carry a presumption of correctness unless rebutted through strong and unimpeachable evidence. In such

circumstances, the entries in favour of predecessor in interest of the petitioners could not have been set aside.

13.In contrast, respondent No.1’s own pleadings and evidence create serious doubt about the existence of any lawful transaction which remained insufficient to rebut the presumption of correctness attached to the impugned mutations.

14.Furthermore, the burden of proof was incorrectly shifted by the learned lower fora. The initial onus lay squarely upon respondent No.1 to establish the existence of a valid and enforceable oral agreement. This burden was never discharged. As it is trite law that he who asserts must prove and burden of proof or onus of proof lies on that person who would fail in case no evidence at all was given on either side. Predecessor in interest of the petitioners was under no obligation to disprove an unsubstantiated claim. The approach adopted by the learned courts below is contrary to the settled principles embodied in Articles 117 and 118 of the Qanun-e-Shahadat Order,

15.Although this Court always shy away from interfering with concurrent findings of fact but such restraint is not absolute. Where the findings are the result of misreading or non-reading of evidence or where settled principles of law have been misapplied, interference becomes not only permissible but necessary to prevent miscarriage of justice. In the present case, respondent No.1 based his claim upon an alleged oral transaction purportedly entered into by a person who admittedly lacked lawful authority from the true owners at the relevant time. Such a claim could not legally be recognized merely on the basis of possession or vague assertions. Acceptance of such transactions in the absence of clear pleadings and reliable evidence would undermine the settled principles governing transfer of property as well as the sanctity attached to official revenue record. Respondent No.1 not only failed to establish the existence of a valid and enforceable agreement but also failed to rebut the presumption of truth attached to the sanctioned mutations in favour of predecessor in interest of the petitioners. Both the learned courts below, therefore, fell into grave

error by misreading the evidence and misapplying settled legal principles, rendering their findings unsustainable in law.

16.For the foregoing reasons, it is held that the impugned judgments and decrees passed by the learned courts below are unsustainable in law. This civil revision is, therefore, allowed. The impugned judgments and decrees are set aside and the suit filed by respondent No.1 stands dismissed. Consequently, mutation Nos.3264 & 3265 which had been cancelled by the learned courts below, are hereby restored.

(MALIK WAQAR HAIDER AWAN)

JUDGE

Signed on

*Sadheer Ahmad*

APPROVED FOR REPORTING

JUDGE