M. Aslam Khan etc. vs M. Afzal etc.

Stereo. H C J D A-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH,

MULTAN

JUDICIAL DEPARTMENT

Civil Revision No.569 of 2019

Muhammad Aslam Khan & others Versus Muhammad Afzal & others

JUDGMENT

Date of hearing: 24.09.2026.

Petitioners by: M/s Muhammad Masood Bilal and Rana Muhammad Imran, Advocates.

Respondents by: M/s Syed Tajammal Hussain Bokhari and Tauqeer Tabassum Sheikh, Advocate for respondents No.1 to 3.

Ms. Samina Mehmood Rana, Assistant Advocate General along with Muhammad Rafique, Qanungo, and Junair, Patwari.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through the instant civil revision petition, the petitioners have assailed the judgment and decree dated 13.01.2014 passed by the learned Civil Judge (“the Trial Court”), whereby their suit was dismissed, and the judgment and decree dated 30.04.2019 passed by the learned Additional District Judge (“the Appellate Court”), whereby their appeal was dismissed.

2.Briefly stated, the dispute relates to agricultural land originally held by Ali Mardan, who died on 02.02.1935. Mutation No.9 was sanctioned on 28.05.1935 in favour of his widow, Mst. Gul Begum, under Section 20(b) of the Colonization of Government Lands Act, 1912 (“the Colony Act”). Proprietary rights were thereafter granted in 1944, a Conveyance/Crown Deed (Baynama Shahi) was executed in 1951, and Mutation No.35 was attested in 1953. On 15.01.1995, Mst. Gul Begum sold the land to the petitioners for Rs.21,25,500/- through Mutation No.82. She died in 1996. In 2002, an application was moved before the District Officer (Revenue)

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challenging Mutations No.9, 35 and 82. The revenue hierarchy, by orders dated 06.05.2003, 09.07.2003 and 17.05.2008, interfered with the said mutations. The petitioners consequently instituted the suit seeking declaration of their title and invalidation of the revenue orders. It is also relevant that the predecessors-in-interest of the respondents had earlier instituted proceedings concerning the inheritance, which culminated in dismissal of the suit on 26.06.1982 (Exh.P-24). The said decree attained finality. The learned Trial Court dismissed the petitioners’ suit on 13.01.2014, and the learned Appellate Court maintained the dismissal on 30.04.2019. Hence, the instant revision petition.

3.Learned counsel for the petitioners submits that the revenue authorities could not have reopened mutations attested in 1935, 1953 and 1995 after several decades, particularly without sanction contemplated by Section 163 of the West Pakistan Land Revenue Act, 1967 (“LRA”) and beyond the prescribed period for review. According to learned counsel, the controversy involved questions of title, inheritance and fraud falling within the jurisdiction of the Civil Court under Section 53 of the LRA, and Section 172 thereof could not oust such jurisdiction. It is further contended that, after grant of proprietary rights and execution of the 1951 conveyance, the land ceased to be Government land and the executive authorities could not subsequently unsettle the title. Learned counsel also submits that the plea of limited estate was neither properly pleaded nor made the subject of an issue; that the decree dated 26.06.1982 operates as res judicata; that the learned Courts below proceeded on inconsistent legal premises; that the Appellate Court failed to discharge its duty under Order XLI Rule 31 CPC; and that the petitioners, being bona fide purchasers for value, are protected under Section 41 of the Transfer of Property Act, 1882 (“TPA”). He has placed reliance upon Muhammad Hussain and others v. Khuda Bakhsh (1989 SCMR 1563), Waris Khan and 18 others v. Col. Humayun Shah and 41 others (PLD 1994 Supreme Court 336), Raja Hamayun Sarfraz Khan and others v. Noor Muhammad (2007 SCMR 307), Ajmir Shah, Ex-Sepoy v. The Inspector-General, Frontier Corps Khyber Pakhtunkhwa and another (2020 SCMR 2129), Ahsan Ali through

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L.Rs. and others v. Province of Sindh through District Coordination Officer Thatta and 4 others (2007 MLD 884), Muhammad Akhtar v. Senior Member, Board of Revenue, Punjab, Lahore and another (2008 CLC 825), Mst. Khurshid Bibi and others v. Liaqat Ali and others (2010 VLR 2729), Shahid Iftikhar and another v. Mst. Tasneem Rani and 4 others (2017 CLC 264), Muhammad Munawar v. Abdul Razaq and 6 others (2018 CLC 1227), Hayat Ullah v. Senior Member, Board of Revenue, Peshawar and 4 others (2020 YLR 1776), Brig. (R) Masood Salam through Legal Heirs v. Sohail Ahmad and others (PLD 2020 Lahore 478), Muhammad Hanif and 6 others v. Syed Zakir Hussain Shah and 8 others (2022 MLD 143), Province of Punjab and others v. Waseem Arshad and others (PLD 2023 Lahore 564) and Muhammad Suleman and others v. Member (Judicial-II), B,O.R. and others (2023 YLR 1182).

4.Conversely, learned counsel for the respondents supports the impugned judgments. He submits that Mst. Gul Begum succeeded to the tenancy under Section 20(b) of the Colony Act subject to the restriction contained in Section 30-A thereof and that acquisition of proprietary rights did not enlarge her power of alienation. He further contends that the birth and survival of Mst. Anar Begum stand established through documentary evidence, that Section 41 of the TPA has no application, and that the concurrent findings of the learned Courts below do not warrant interference in revisional jurisdiction. He has referred to Mst. Began v. Mst. Bai (1983 SCMR 80), Muhammad Kasim v. Khair Muhammad and others (1987 SCMR 1560), Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1), Nazir Ahmad and others v. Abdullah and others (1997 SCMR 281), Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others (PLD 2005 Supreme Court 511), Muhammad Zubair and others v. Muhammad Sharif (2005 SCMR 1217), Mst. Jhando and 6 others v. Muhammad Sharif and 9 others (2006 SCMR 882), Abdul Ghafoor and others v. Kallu and others (2008 SCMR 452), Muhammad Idrees and others v. Muhammad Pervaiz and others (2010 SCMR 5), Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another (2010 SCMR 817), Shabla and others v. Ms. Jahan Afroz Khilat and others (2020

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SCMR 352) and Muhammad Khalid and others v. Additional District Judge and others (2022 MLD 1363).

5.Arguments heard. Record perused.

6.The controversy cannot be satisfactorily resolved on the basis of the impugned judgments in their present form. The learned Courts below have reached the same ultimate conclusion, but on materially different legal premises. The Trial Court proceeded on the basis that the limited nature of Mst. Gul Begum’s interest was customary and stood extinguished by Section 3 of the Shariat Act, whereas the Appellate Court held that the restriction flowed from Section 20(b) of the Colony Act and was statutory in character, thereby holding the Shariat Act inapplicable. These are not merely different routes to the same conclusion; they constitute distinct legal foundations requiring independent determination. The Appellate Court also accepted the validity of Mutation No.9 while maintaining the consequences flowing from orders which had subsequently disturbed that very mutation. The resulting inconsistency renders the concurrent nature of the findings largely illusory and requires reconsideration of the matter on a proper legal footing.

7.The first question requiring determination is the nature and extent of Mst. Gul Begum’s interest. The respondents rely upon Sections 20(b) and 30-A of the Colony Act and the judgments in the cases of Mst. Began and Mst. Jhando, supra, whereas the petitioners rely upon the subsequent grant of proprietary rights and the 1951 conveyance. The mere execution of a conveyance does not, without examination of the governing statutory restrictions, conclusively answer whether the grantee acquired an unrestricted power of alienation. Conversely, the proposition that the restriction survived proprietary grant also requires examination in the light of the precise statutory scheme and the authorities relied upon by both sides.

8.A further question, not adequately addressed by either Court, is the legal consequence of the alleged restriction: whether it rendered the 1995 alienation void ab initio, voidable at the instance of the persons entitled upon Mst. Gul Begum’s death, or otherwise ineffective, particularly when she died in 1996. This question is

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material and cannot be determined without first identifying the source, nature and duration of the alleged restriction.

9.The plea of res judicata also requires fresh consideration. The learned Court below appears to have rejected the plea substantially on the premise that the subsequent application of Shariat law displaced the earlier adjudication. Such an approach does not, by itself, answer the requirements of Section 11 CPC. The applicability of res judicata depends upon the identity of the matter directly and substantially in issue, the parties or persons claiming under them, the competence of the former Court and final adjudication of the matter. Explanation IV to Section 11 CPC further requires consideration of matters which might and ought to have been made a ground of attack or defence. The Appellate Court's own reference to Exh.P-24 indicates that Issue No.10 in the earlier suit concerned the status of Mst. Gul Begum and the position of the respondents' predecessors. The complete pleadings, issues and judgment of the 1982 suit, however, have not been examined with the degree of precision necessary to determine the scope and effect of that decree. Since the present proceedings seek to disturb mutations which are connected with the same chain of title, the effect of Exh.P-24 cannot be determined on assumption.

10.Equally significant is the objection regarding the jurisdiction of the revenue authorities. The petitioners challenge the reopening of Mutations No.9, 35 and 82 after several decades and contend that the orders dated 06.05.2003, 09.07.2003 and 17.05.2008 were made without the sanction contemplated by Section 163 of the LRA and beyond the period prescribed for review. They further contend that the proceedings involved questions of title, inheritance and fraud falling within the jurisdiction of the Civil Court under Section 53, notwithstanding Section 172 of the LRA. This objection goes to the root of the matter. If the impugned revenue orders were made without jurisdiction, their legality cannot be sustained merely by lapse of time. At the same time, invalidity of the revenue orders would not, by itself, establish the petitioners' title. The title dispute and the legal effect of Sections 20(b) and 30-A of the Colony Act would still require

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adjudication. The jurisdictional question must, therefore, be determined independently with reference to the nature of the proceedings before the revenue authorities, the powers exercised, the applicable statutory limitations and the orders actually passed.

11.The petitioners' plea under Section 41 TPA also remains undecided in the manner required by law. Protection under the said provision depends upon, inter alia, the transferor being the ostensible owner with the consent, express or implied, of the person interested in the property, the transferee having taken reasonable care to ascertain the transferor's authority and having acted in good faith. Whether these ingredients existed in the present case depends upon the legal status of Mst. Gul Begum at the time of the 1995 transaction, the state of the revenue record, the circumstances in which the petitioners acquired the land, and their knowledge thereof. Neither learned Court has recorded a proper finding on these questions. The plea, therefore, cannot be accepted or rejected without such determination.

12.It is a settled principle that a party cannot ordinarily be non- suited on a ground which was neither properly pleaded nor made the subject of an issue, as the opposite party must have a fair opportunity to meet the case. Order XIV Rules 1 and 5 CPC require the material propositions of fact and law to be translated into appropriate issues. The petitioners specifically contend that the “limited estate” theory, which proved decisive, was neither pleaded in the written statement nor made the subject of a specific issue. If the plea was not pleaded, reliance upon it raises a question of fair trial; if it was pleaded but no appropriate issue was framed, the parties were still denied a structured adjudication on the decisive questions arising from Sections 20(b) and 30-A of the Colony Act and the Shariat Act. Either way, the matter requires reconsideration at the appellate stage after affording the parties an opportunity to address the relevant questions in accordance with law.

13.The learned Appellate Court was also required, under Order XLI Rule 31 CPC, to formulate the points arising for determination, record its findings thereon and furnish reasons for its conclusions on

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every material issue arising from the pleadings, evidence and grounds of appeal. The jurisdiction of a first appellate Court is not merely corrective or supervisory; it constitutes a valuable statutory right of rehearing, requiring independent consideration of both questions of fact and law. Where material grounds urged before it remain undecided, or the controversy is disposed of on a legal premise materially different from that adopted by the Trial Court without resolving the competing questions arising from the record, the appellate jurisdiction cannot be regarded as having been properly exercised. In the present case, the learned Appellate Court did not adequately determine, inter alia, the jurisdiction of the revenue authorities, the effect of Sections 53, 163 and 172 of the LRA, the legal consequence of Exh.P-24, the precise source and duration of the alleged restriction upon Mst. Gul Begum's power of alienation, the effect of the 1995 transaction, and the petitioners' plea under Section 41 of the TPA. These questions are not peripheral; rather, they go to the root of the controversy and may materially affect the ultimate result of the appeal. The omission to determine them has deprived the parties of a meaningful first appellate adjudication. In these circumstances, it would neither be appropriate for this Court, in revisional jurisdiction, to undertake the entire first appellate exercise itself nor would it be just to affirm a decree on the basis of legal premises which have not been coherently examined by the learned Courts below. The appropriate course is, therefore, to restore the appeal to the learned first Appellate Court for fresh decision in accordance with law.

14.This Court, however, would not disturb findings which are supported by the record and have not been shown to suffer from misreading or non-reading of evidence. In particular, the finding regarding the date of birth of Mst. Anar Begum and the death of Ali Mardan is based upon documentary evidence, including Exh.D-4 and Exh.D-5, and no specific misreading or non-reading thereof has been demonstrated before this Court. Such findings shall remain available to the learned first Appellate Court for consideration while

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undertaking the fresh appellate exercise. Likewise, the question whether Section 19-A of the Colony Act applied to Mutation No.9 shall be determined by the learned Appellate Court in accordance with the applicable law and the evidence already available on record.

15.The jurisprudential rationale underlying the requirement of a reasoned first appellate adjudication is that the first appeal ordinarily constitutes a valuable statutory right of rehearing on questions of both fact and law. The appellate Court is consequently required to independently evaluate the material evidence, consider the grounds of challenge, formulate the points arising for determination and record reasons for its conclusions. Where that jurisdiction has not been meaningfully exercised, a higher Court should ordinarily avoid converting revisional jurisdiction into a substitute for the first appellate forum, particularly where determination of disputed legal and factual questions depends upon appreciation of the existing record. Restoration of the appeal in such circumstances serves both the interests of the parties and the orderly hierarchy of adjudication, while preserving to the parties the statutory right of first appellate consideration. The power of an appellate Court to deal with additional evidence is likewise structured by Order XLI Rules 27 to 29 CPC and is not intended to provide a party an unrestricted opportunity to fill lacunae in its case. Where additional evidence is considered necessary, the appellate Court must act within the statutory parameters and retain the ultimate responsibility for deciding the appeal.

16.In view of the foregoing, this Court is not persuaded either to decree the suit or to maintain its dismissal at this stage. The controversy involves substantial questions concerning jurisdiction, the legal character and extent of Mst. Gul Begum's interest, the effect of the decree dated 26.06.1982, the validity and legal consequence of the 1995 alienation, and the applicability of Section 41 of the TPA, besides other connected questions arising from the revenue record and the statutory scheme. These questions require a proper first appellate determination upon consideration of the entire record and the respective contentions of the parties. To undertake such exercise for

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the first time in revisional jurisdiction would, in effect, substitute the jurisdiction of the first Appellate Court rather than correct its exercise. The object of remand, in such circumstances, is not to afford either party a second opportunity to improve its case, but to ensure that the statutory appellate forum performs the adjudicatory function entrusted to it and that the controversy is determined on all material questions in accordance with law. Conversely, maintaining the impugned judgment would perpetuate a decision rendered without determination of material grounds urged before the first Appellate Court. The interests of justice would, therefore, be served by setting aside the impugned appellate judgment and restoring the appeal to the learned first Appellate Court for fresh decision.

17.Consequently, this civil revision petition is allowed. The judgment and decree dated 30.04.2019 passed by the learned Additional District Judge are set aside, and the appeal filed by the petitioners before the learned first Appellate Court is restored to its original number for fresh decision in accordance with law. The learned first Appellate Court shall undertake the appellate exercise afresh, independently and uninfluenced by any observation contained herein, except to the extent of the legal guidance expressly recorded in this judgment. The learned first Appellate Court shall formulate appropriate points for determination in terms of Order XLI Rule 31 CPC, encompassing all material questions arising from the pleadings, evidence and grounds of appeal, including:

(a)whether the revenue authorities had lawful jurisdiction to reopen Mutations No.9 (1935), No.35 (1953) and No.82 (1995) and pass the orders dated 06.05.2003, 09.07.2003 and 17.05.2008, particularly in view of Sections 53, 163 and 172 of the LRA;

(b)whether, after grant of proprietary rights in 1944 and execution of the 1951 conveyance, Mst. Gul Begum retained any statutory or other legally enforceable restriction upon her power of alienation, particularly in view of Sections 20(b) and 30-A of the Colony Act;

(c)whether Section 3 of the Shariat Act had any application to the interest held by Mst. Gul Begum and,

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consequently, what was the legal effect of the alienation made by her in 1995, particularly in view of her death in

(d)whether the decree dated 26.06.1982 (Exh.P-24) operates as res judicata, including by virtue of Explanation IV to Section 11 CPC, and what is its precise effect upon the controversy involved in the present suit;

(e)whether the petitioners are entitled to protection under Section 41 of the TPA in respect of the transaction dated 15.01.1995; and

(f)whether, in view of the above questions and the evidence available on record, the judgment and decree of the learned Trial Court dated 13.01.2014 call for interference in appeal.

18.The learned first Appellate Court shall examine the complete record of the suit and, if necessary, summon the complete record of the earlier proceedings culminating in the decree dated 26.06.1982 (Exh.P-24), including the pleadings, issues, evidence, judgment and decree, and shall determine the precise scope and effect thereof in accordance with law. If, upon consideration of the record, the learned Appellate Court finds that any material issue was not framed by the Trial Court, it shall exercise the powers available to it under the Code of Civil Procedure in accordance with law. Likewise, if additional evidence is considered necessary, the learned Appellate Court shall deal with the matter strictly within the parameters of Order XLI Rules 27 to 29 CPC. The learned first Appellate Court shall afford the parties adequate opportunity of hearing and shall decide the appeal by a speaking and reasoned judgment, addressing each material point arising for determination and recording independent findings thereon. The evidence already available on record shall be duly considered and the findings of the Trial Court shall be examined independently rather than merely affirmed or reversed on the basis of the conclusions already recorded. The appeal shall, preferably, be decided within three months from the date of receipt of this judgment. The parties shall appear before the learned first Appellate Court on 12.10.2026 and shall cooperate in expeditious disposal of the appeal, avoiding

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unnecessary adjournments. Till decision of the appeal, the parties shall maintain the existing position with regard to possession of the subject land and shall not create any third-party interest therein. Nothing contained herein shall be construed as a final expression of opinion on the merits of the parties' respective claims. The learned first Appellate Court shall decide the appeal independently, strictly in accordance with the pleadings, evidence, applicable law and the observations contained herein. No order as to costs. The Office shall transmit the record to the learned first Appellate Court forthwith along with a copy of this judgment.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*Sultan*