Abdullah Hassan Vs Zahid Mehmodo & 2 Others

Form No: HCJD/C-1121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Civil Revision No.133451/2018

Abdullah Hassan Versus Zahid Mehmood, etc.

S.No. of order/ Date of order/ Order with signature of Judge, and that of parties of proceeding Proceeding counsel, where necessary 29.09.2026 Ch. Ali Muhammad, Advocate for petitioner. Malik Noor Muhammad Awan, Advocate for respondent No.1.

This Civil Revision is against concurrently passed decisions, whereby petitioner’s suit for declaration seeking invalidity of mutations No.377 and 968 was dismissed by the Trial Court. And, thereafter, appeal preferred by the petitioner was also dismissed.

2.Facts essential for adjudication are that petitioner, claimed to be a nephew of one Nizam Din, who was the owner of the property, which allegedly was gifted through mutations 377 dated 16.08.1999 and 968 dated 04.09.1999 (‘impugned mutations’). Petitioner claimed share in the estate of deceased Nizam Din and threw challenge to impugned mutations through suit for declaration, which was instituted on 18.12.2012. Respondents, being beneficiary, defended mutations on inter alia various grounds but two grounds need mentioning, which are; firstly, it is claimed that donee had sought declaration qua rights qua gift and donor, that is Nizam Din, appeared before the Court and recorded affirmation in favour of gift, and secondly, plea of res judicata is raised as

defence against petitioner on the premise that said decree in favour of donee was questioned by petitioner through proceedings under section 12(2) of the Code of Civil Procedure 1908 but remained unsuccessful, throughout. Hence, subsequently suit for declaration could not be filed. Trial court dismissed suit on the basis of judgment in favour of donee and unsuccessful attempt to challenge under section 12(2), ibid, regime. Appellate Court affirmed dismissal of suit.

3.Learned counsel for the petitioner argued that factum of gift was not proved by the beneficiary and only beneficiary himself appeared as witness, which is insufficient for the purposes of proving execution and transaction of gift. Learned counsel cites following decisions, reported as Ghulam Haider V. Ghulam Rasool and others (2003 SCMR 1829), Hakim Khan V. Aurangzeb and another (1979 SCMR 625), Phul Peer Shah V. Hafeez Fatima (2016 SCMR 1225) and Peer Baksh through LRs and others V. Mst. Khanzadi and others

(2016 SCMR 1417).

4.Learned counsel for respondents contends that donor affirmed factum of gift, which affirmation was recoded in judicial verdict and such verdict remained firm despite challenge by petitioner. Adds that subsequent suit is hit by doctrine of res judicata. And following decisions are referred, which are Muhammad Afzal (decd.) through L.Rs. and others V. Muhamamd Bashir and another (2020 SCMR 197), Abrar Ahmed and another V. Irshad Ahmed (PLD 2014 Supreme Court 331) and Ghulam Abbas and others V. Mohamamd Shafi through LRs and others (2016 SCMR 1403).

5.Heard.

6.Both courts heavily relied on the documentary evidence and non-suited petitioner on premise of his failure to shake the validity of the judgment, claimed to be the cornerstone of respondent’s case. Notably, respondent had not produced evidence to meet the requirements of Article 79 of the Qanun-e-Shahadat Order, 1984 (Order 1984) but sought exemption thereto on the premise that donor admitted factum of gift and reiterated his willingness before the court of law, therefore, protection of Article 81 of the Order 1984 was claimed. Respondent pleaded previous judgment as bar to subsequent suit, which apparently is the mandate of Article 54 of the Order 1984. Courts proceeded on aforesaid basis.

This premise is flawed in the context of facts of the case at hand. Evidence of petitioner, who appeared and identified as PW-1, is meaningful, wherein petitioner denied factum of engaging any counsel; denied filing of application and filing of revision against order of dismissal of application under section 12(2) of the Code. This denial is relevant and attracts exception to relevance of previous judgments and orders, as the case may be. It is appropriate to reproduce text of Article 58 of Order 1984, which reads as:-

“Fraud or collusion in obtaining judgment, or incompetency of Court may be proved. Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Article 54, 55 or 56, and which has been proved by the adverse party, was

delivered by a Court not competent to deliver it, or was obtained by fraud or collusion”.

7.Whether requirements of Article 58 of the Order 1984 were met by the petitioner while testifying as witness. This determination was not carried out by courts, which relied on the decisions of dismissal of application under section 12(2) of the Code. If fraud vis-à-vis orders of dismissal of application under section 12(2) of the Code is established then whether such orders can be employed to protect the edifice raised. I perused cross-examination on PW-1 and found that he was not confronted with his signatures on power of attorney, application or grounds of revision petition. In absence of confrontation how material effect could be extended in oblivion to the mandate of Article 140 of the Order 1984. All issues / matters, narrated above, require through determination.

8.There is another angle to the controversy. Respondent pleaded relevancy of the statement by donor and judgment passed pursuant thereto. This argument is flawed when examined in the context of exception provided qua applicability of Article 47 of the Order 1984. Such statement cannot be used against the petitioner when same had no right to cross examine the donor, hence, such statement loses its relevance and becomes inadmissible, once it falls beyond the realm of relevancy.

9.In view of aforesaid defects, deficiencies and legal irregularities in the exercise of jurisdiction, I am inclined to remand the matter

to Appellate Court, which shall decide the appeal of petitioner afresh in light of aforesaid observations.

10.This Civil Revision is allowed in aforesaid terms and judgment and decree of the Appellate Court dated 12.10.2017 is, hereby, set aside. No order as to the costs.

(ASIM HAFEEZ)

JUDGE

Approved for reporting.

(ASIM HAFEEZ)

JUDGE

Imran/*