Walayat Hussain Shah vs Khursheed Hussain Shah etc.

Stereo. HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

(JUDICIAL DEPARTMENT)

Civil Revision No. 3799 of 2011 Walayat Hussain Shah.

Versus Khursheed Hussain Shah (deceased) through legal heirs and others.

JUDGMENT

Date of hearing 24.09.2026 For the Petitioner M/s Ali Aun Muhammad and Mubashir Iqbal Tarar, Advocates.

For the Respondents M/s Bilal Haider Khan and Asif Shahzad Sahi, Advocates.

ASIM HAFEEZ, J. Concurrent decisions are hereby assailed, in terms whereof petitioner’s suit for declaration, seeking declaration of invalidity of gift-mutation No. 423 dated 22.02.1995 and exchange- mutation No.427 dated 27.03.1995, was dismissed. Appeal preferred was also dismissed.

2.Petitioner and respondent No.1 [represented through heirs] are brothers. In terms of gift-mutation No. 423 property was gifted by mother in favour of respondent No.1, who exchanged it with respondent No.2 [which transaction was subject matter of exchange-mutation No.

427]. Petitioner brought suit, wherein he claimed interest in the property by virtue of oral gift by his mother and questions validity of gift-mutation No. 423 on premise of fraud by his brother. Respondent No.1 had also sold property acquired from respondent No.2 by virtue of exchange-transaction – petitioner had challenged that transaction

through another suit, unsuccessfully. Trial court dismissed suit and appellate court had affirmed the decision.

3.Learned counsel contends that respondent No.1 had made conceding statement in favour of petitioner, where he expressed no objection if petitioner’ suit was decreed. Adds that execution of gift- mutation No. 423 was not proved.

4.Heard. The most crucial finding recorded by both courts is that mother of the petitioner and respondent No.1 had equally gifted property to sons – this fact is admitted by the petitioner. Hence, petitioner was aware of gift in his brother’s favour but waited till January 1998. Then respondent No.1 made conceding statement, who had already exchanged property with respondent No.2 and had also sold the property got in exchange – petitioner’s suit with respect to said transaction was dismissed for failing to produce evidence. This explains purpose of initiation of litigation – to re-claim property through frivolous legal proceedings. Argument that respondent No.1 had made a conceding statement therefore courts erred in dismissing suit, while ignoring admission of respondent No.1 is misconceived. Statement of respondent No.1 or alleged admission is inadmissible because before making the statement he had no proprietary or pecuniary interest in the subject matter of the proceedings – which relates to the property subject matter of gift-mutation No. 423 and exchange-mutation No. 427.

Hence, alleged admission is inadmissible and had no effect to prejudice respondent No.2. For ease of understanding Article 31 of Qanun-e- Shahadat Order 1984 is reproduced hereunder, which reads as,

“31. Admission by party to proceeding or his agent, etc. (1) Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.

(2)Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

(3)Statements made by

(a)persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or (b) persons from whom the parties to the suit have derived their interest in the subject-matter of the suit. are admissions if they are made during the continuance of the interest of the persons making the statements.”

5.In addition to aforesaid defects and deficiencies, which are sufficient to non-suit petitioner, sufficient evidence is available to believe in the execution of mutations. No interference warranted.

6.Civil Revision is, hereby, dismissed.

(Asim Hafeez) Judge

Approved for reporting.

(Asim Hafeez) Judge

*M. Nadeem/*