Abdul Waheed Khan vs Hamid Majeed etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH

MULTAN.

JUDICIAL DEPARTMENT

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Abdul Waheed Khan (deceased) through his legal heirs Versus

Hamid Majeed & others

JUDGMENT

Date of hearing: 08.10.2026.

Petitioners by: Malik Muhammad Latif Khokhar, Advocate.

Respondents by: M/s Shahid Iqbal Khan, Mujtaba Aziz and Aftab Abbas, Advocates.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through this revision petition, the petitioners, legal heirs of Abdul Waheed Khan (deceased), have challenged the concurrent judgments and decrees dated 29.10.2014 and 23.06.2015, passed by learned Civil Judge and Additional District Judge, Khanewal, respectively, to the extent of dismissal of their suit for partition of the property mentioned at Serial No. 2 of the amended plaint.

2.The petitioners filed a suit for partition of several properties, claiming co-ownership with respondents No. 1 to 5 through their predecessor, Abdul Hameed Khan. A decree dated 18.04.2005 was set aside on 11.05.2010 under Section 12(2), C.P.C., on an application filed by Mst. Saeeda Begum, and the suit was thereafter adjudicated afresh. Respondent No. 6, who asserts independent ownership of the property at Serial No. 2, was impleaded on 09.07.2012. The learned Trial Court decreed the claim in respect of Serial Nos. 1, 3, 4 and 5, but dismissed it in respect of Serial No. 2, holding that the petitioners had failed to establish that the disputed property formed part of their predecessor’s estate. The learned Appellate Court upheld that dismissal, hence this revision petition.

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3.Learned counsel for the petitioners submits that the impugned judgments suffer from misreading and non-reading of evidence, as the petitioners produced a chain of sale deeds, inheritance mutations and revenue documents tracing the property to their predecessor. He argues that the documentary evidence could not lawfully be discarded without reconciling them with the rival documents and determining the precise nature and extent of the property in dispute. He further submits that the controversy concerning ownership could not be resolved merely by relying only on the documents produced by respondent No. 6, particularly when the petitioners had also produced documentary material supporting their claim.

4.Conversely, learned counsel for the respondents supports the impugned judgments and submits that the petitioners failed to establish the identity of the property claimed by them and its connection with the estate of Abdul Hameed Khan; that respondent No. 6 relied on independent registered instruments and corresponding revenue entries; that the petitioners produced no satisfactory demarcation or authoritative site plan connecting the property in respondent No. 6’s possession with the inherited property; and that other co-sharers had not been joined.

5.Arguments heard. Available record perused.

6.The controversy concerning the property at Serial No. 2 raises three related but distinct questions: first, the identity and extent of the property, namely, whether the land claimed by the petitioners is the same as, or includes, the land covered by the rival instruments; secondly, whether the property formed part of the estate of Abdul Hameed Khan and consequently devolved upon the petitioners by inheritance; and thirdly, what legal effect is to be given to the competing chains of title, including the deeds of 1964 and 1966 relied upon by the petitioners and the deeds of 1992, together with the related mutations, relied upon by respondent No. 6. These questions must be examined separately and then considered together. Failure to establish the precise identity of the land may defeat a claim for partition, but it does not, by itself, establish the validity of the rival

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title. Likewise, the production of documents purporting to evidence title does not dispense with the need to determine the land to which those documents relate.

7.In a suit for partition, a plaintiff must establish a subsisting co- ownership interest in the property sought to be partitioned. Under Article 117 of the Qanun-e-Shahadat Order, 1984, the burden of proving a fact ordinarily rests upon the party who would fail if no evidence were produced on either side. The petitioners, therefore, cannot succeed merely by pointing to deficiencies in respondent No. 6’s case; they must establish the identity of the property and their own asserted interest in it. It is a settled principle that a party who approaches the Court for relief must discharge his own burden and stand on his own legs, and cannot take advantage of any weakness in the case of the opposite party. Reference can be made to Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) and Nasir Ali v. Mst. Raheela Mahdi (2025 CLC 885). The philosophy of the rule is that a claim of right must be established by the claimant’s own proof; the inability of a defendant to prove his own title does not supply the missing links in the claimant’s chain of title. At the same time, where respondent No. 6 sets up an independent title, the transactions on which that claim rests must be assessed in accordance with law.

8.Registration of an instrument is relevant, but it does not, by itself, conclusively establish every fact concerning the transaction recorded in it. A registered instrument carries the presumptions attached to it under sections 35, 47 and 60 of the Registration Act, 1908 and Article 90 of the Qanun-e-Shahadat Order, 1984, and the Court presumes its correctness unless it is disputed or rebutted. Reference can be made to Abdul Aziz v. Abdul Hameed (Deceased) through L.Rs. (2022 SCMR 842). Where, however, its execution is denied, the presumption extends only to the regularity of the registration proceedings, is rebuttable, and does not dispense with proof of execution and of the transaction by the party asserting it. Reference is made to Syed Ayoob Ali Shah v. Mst. Rabia Begum (2013

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CLC 419), Muhammad Younas and another v. Ghazanfar Abbas and 12 others (2017 YLR 2229) and Mst. Rahim Khatoon (deceased) through LRs v. Muhammad Yasin and others (2025 SCMR 1694).

9.Similarly, a mutation is primarily a fiscal entry; it neither creates nor extinguishes title and must be considered in the context of the underlying transaction and the other evidence. The rationale is that a mutation is merely a reflection of the revenue record, whose authenticity is to be ascertained from the underlying transaction, the onus of proving which lies on the person deriving title through it. Reference is made to Noor Muhammad and others v. Mst. Azmat-e- Bibi (2012 SCMR 1373), Mst. Kalsoom Begum v. Rizwan Shah and others (2020 SCMR 2029) and Mst. Jehan Bano and others v. Mehraban Shah and others (2024 SCMR 1096). Entries in the periodical record of rights, though carrying a presumption of truth under section 52 of the Land Revenue Act, 1967, remain open to rebuttal. The rival documents consequently require examination as to their execution, subject matter, scope and legal effect, including, where the conditions are met, any presumption available under Article 100 of the Qanun-e-Shahadat Order, 1984, in respect of a document thirty years old. Article 100 makes a document thirty years old, produced from proper custody and free from suspicion, admissible without formal proof of its execution and allows the Court to presume that it was signed and executed by the persons purporting to have done so; the Court is not, however, bound to presume its contents to be true, and where genuineness is disputed it must itself determine that question, admissibility and evidentiary value being distinct matters. Such a presumption may be relevant to the deeds of 1964 and 1966 but could not have attached to the deeds of 1992, which were not thirty years old when produced.

10.The framing of issues is intended to identify the material propositions of fact and law affirmed by one party and denied by the other, thereby informing the parties of the controversy they must meet and guiding the Court in the appraisal of evidence. Order XIV, Rules 1 and 3, C.P.C., require issues to be drawn from the pleadings and the

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material appearing from the record, while Rule 5 empowers the Court to frame additional issues where necessary before passing a decree. A separate issue expressly captioned “title” is not invariably indispensable. If the substance of the controversy was clear to the parties, they had a fair opportunity to lead evidence on it, and the Court in fact determined it, the mere omission of a separately worded issue may not invalidate the adjudication. The principle is well settled: where the allegations in the plaint are challenged in the written statement and the Court has allowed the parties to lead evidence on the point, a decision rendered without framing a specific issue is not illegal, and the non-framing of an issue is not by itself a ground for remand or retrial unless prejudice to a party is shown. Reference is made to The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 Supreme Court 82), Syed Abdullah Shah and others v. Abdul Ghaffar Khan and others (1987 SCMR 925) and Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018). The philosophy is that issues serve the fair trial of the real dispute and procedure is the handmaid of justice; a defect of form that has caused no prejudice does not defeat a decision on the merits. The inquiry is therefore not confined to the form of the issues; the pleadings, evidence, issues and findings must be read together to determine whether the real controversy was fairly and effectively tried. Conversely, where a material proposition pleaded by a party has not been put in issue and the omission has resulted in uncertainty about the burden of proof or deprived a party of a fair opportunity to address the case against it, the defect may materially affect the adjudication. Where the issues as framed do not enable the parties to know upon whom the burden of proving a material proposition lay, the necessary issues may be directed to be framed afresh so that each party is saddled with its proper burden. Order XLI, Rule 25, C.P.C., enables the Appellate Court to frame an issue omitted by the Trial Court where that issue is essential to the right decision of the suit on the merits. The governing test is thus substantive: whether, in the circumstances of the case, the

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omitted issue was necessary for a fair and complete determination of the dispute.

11.In the present case, respondent No. 6 was impleaded on 09.07.2012. His written statement, filed before the framing of issues, asserted independent ownership of the property at Serial No. 2 on the basis of the deeds of 1992. No specific additional issue was framed to address that plea. This omission must, however, be considered in the context of the issues that were framed and the findings actually recorded. Issue No. 1 directly concerned whether the property at Serial No. 2 was joint property of the petitioners and respondents No. 1 to 5. Its determination necessarily called for consideration of the identity of the property and the petitioners’ asserted co-ownership. A finding against the petitioners on that issue could sustain dismissal of their claim if their own evidence failed to establish those essential elements, regardless of whether respondent No. 6 independently proved his title. Such a finding, however, would not necessarily amount to a determination that the property belonged to respondent No. 6 or his wife. Issue No. 2, which placed an onus upon the respondents, does not appear to identify with sufficient precision the particular proposition to be proved by each respondent or to address respondent No. 6’s independent claim of title. The competing claim founded on the deeds of 1992 was thus pleaded and documentary evidence was produced in support of the rival positions, yet the issues do not expressly identify that claim for determination. The omission is not automatically fatal; its significance depends upon whether the Courts below independently examined the petitioners’ chain of title and the identity of the land, or instead rejected their claim substantially on the basis of respondent No. 6’s documents without clearly determining the respective evidential burdens and the legal effect of the competing material.

12.The impugned judgments do not adequately clarify this point. If the petitioners’ claim was dismissed because they failed to establish that the property at Serial No. 2 was identifiable with, and formed part of, the estate of Abdul Hameed Khan, the failure to prove their own

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case could be decisive. If, however, the conclusion was reached principally by relying on respondent No. 6’s documents and the absence of demarcation, without a reasoned appraisal of the petitioners’ own documentary chain, the central controversy was not fully resolved. In the latter situation, the omission to frame an appropriate issue may have contributed to an incomplete determination of the competing claims. It is, therefore, necessary to examine not merely whether a specific issue was omitted, but whether that omission, viewed alongside the findings recorded, affected the proper decision of the suit. That assessment requires a reasoned appraisal of the evidence by the first Appellate Court.

13.A first appeal under Section 96, C.P.C., is a continuation of the suit, and the first Appellate Court is ordinarily the final forum for appraisal of facts. Under Section 107, read with the relevant provisions of Order XLI, C.P.C., it possesses broad powers to determine the controversy and must independently assess the material evidence and record its own conclusions. Order XLI, Rule 31, C.P.C., requires an appellate judgment to state the points for determination, the decision thereon and the reasons for that decision. Although substantial rather than merely technical compliance is required, the judgment must demonstrate that the material controversy has been examined and decided through a proper appraisal of the evidence and the applicable law. In the present case, the impugned judgments refer to the documents relied upon by respondent No. 6 and to the absence of satisfactory demarcation. They do not, however, sufficiently reconcile the petitioners’ documents, particularly Ex.P-54, Ex.P-56 and the inheritance mutations, with the rival documents, including Ex.P-17 and Ex.P-19. Nor do they adequately explain how the property claimed by respondent No. 6 relates, if at all, to the estate of Abdul Hameed Khan. Merely referring to documents does not constitute a reasoned determination of their evidentiary value, the land to which they relate, or their legal effect when considered alongside the rival material. These matters were central to the decision concerning Serial No. 2. The failure to address them adequately

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discloses a material defect in the appellate appraisal, warranting interference within the scope of Section 115(1)(b) and (c), C.P.C. Although concurrent findings of fact are ordinarily not disturbed in revision, the Court is not denuded of its power to interfere where such findings suffer from misreading or non-reading of evidence, or from illegality or material irregularity affecting the merits of the case.

14.It is also material that the decree dated 18.04.2005 was set aside under Section 12(2), C.P.C. The petitioners’ entitlement to partition in respect of Serial No. 2, therefore, cannot be founded merely upon that decree. Any concession or admission previously made by respondents No. 1 to 5 must be considered according to its legal effect and cannot, without more, prejudice respondent No. 6, who asserts an independent title. Following his impleadment, the competing claims had to be adjudicated on the basis of the operative pleadings and the evidence legally available, rather than by treating the earlier decree or any concession made by other parties as conclusive against him.

15.The identity of the property is of particular importance in a partition suit, because a decree must specify with reasonable certainty the property in which partition is to take place. The fact that different parcels are recorded within a common revenue holding does not, by itself, establish that every parcel is jointly owned by the same persons. Equally, separate sale deeds and revenue entries cannot be treated as conclusive without examining their subject matter, authenticity, scope and legal effect. At the same time, a discrepancy in the description of land in an instrument is not by itself determinative where, on the totality of the evidence, the property is otherwise identifiable; civil disputes are decided on the preponderance of the whole evidence and not on a single circumstance read in isolation. Reference is made to Mst. Amtul Karim and others v. Roshan Din and others (2004 YLR 879). If the existing record does not permit the disputed land to be identified with sufficient certainty, the competent Court may consider whether a local investigation under Order XXVI, Rule 9, C.P.C., or demarcation through the revenue authorities would assist in resolving the issue. The power under Order XXVI, Rule 9, C.P.C. is meant to

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elucidate the controversy and verify the position on the ground, not to create evidence for any party; the report of the Local Commission is not binding, the parties must be given an opportunity to file objections before it is relied upon, and the Court may reject it or appoint a fresh commission. Reference is made to Mst. Hafeezan Bibi and others v. Nazar Muhammad and others (2026 CLC 782). A decree, however, cannot rest on a local commission’s report, particularly an irregular one, together with weaknesses in the opposite side’s case, in place of proof of the claimant’s own case.

16.The objection regarding non-joinder must likewise be considered in accordance with law. Under Order I, Rule 9, C.P.C., a suit is not ordinarily defeated by non-joinder, except where a necessary party has not been impleaded. In a partition suit, persons whose interests are necessary for an effective and binding adjudication may need to be joined. Where such an omission is found, the Court should consider the power conferred by Order I, Rule 10(2), C.P.C., and ordinarily afford an appropriate opportunity to cure the defect before dismissing the claim solely on that ground.

17.The remaining question is whether this Court should determine the controversy itself or remit the matter for fresh appellate consideration. The dispute involves the identity of the land, the relationship between the rival parcels and instruments, the proof and legal effect of the competing chains of title, and the petitioners’ asserted inheritance. Resolving those matters would require a detailed appraisal of disputed documentary and potentially revenue evidence. The first Appellate Court is the appropriate forum to undertake that exercise. Depending upon the state of the record, it may determine the case finally under Order XLI, Rule 24, C.P.C.; where an issue essential to the decision has been omitted and requires determination, it may proceed under Rule 25; and any request to produce additional evidence must be considered strictly in accordance with Rule 27. Rule 27 is not intended to allow a party to fill up lacunae in its evidence which it failed to remedy at trial despite opportunity; the party must show that it could not, for plausible reason and sufficient cause,

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produce the evidence at the proper stage. Reference is made to Abdul Majid through General Attorney v. Anjum Akhtar (2024 CLC 1727). Remand is not to be ordered as a matter of course. In the present circumstances, however, a limited remand to the first Appellate Court is justified because the material controversy has not been addressed with the clarity and completeness required of a final appellate determination.

18.For the foregoing reasons, this revision petition is allowed to the extent stated below. The impugned appellate judgment and decree are set aside insofar as they relate to the property described at Serial No. 2 of the amended plaint, and the matter is remanded to the learned Appellate Court for fresh decision in accordance with law, subject to the following directions:

i. The learned Appellate Court shall first examine the issues framed by the learned Trial Court, read with the pleadings and evidence, and determine whether the questions of identity and title were adequately covered and effectively decided. If they were, it shall re-appraise the evidence and render a reasoned judgment in compliance with Order XLI, Rule 31, C.P.C. ii. If the existing issues do not adequately cover a material proposition necessary for deciding the competing claims, the learned Appellate Court shall frame an appropriate additional issue. If the evidence already on record is sufficient, it may determine the issue itself under Order XLI, Rule 24, C.P.C. Where further findings on an omitted issue are necessary, it shall proceed in accordance with Order XLI, Rule 25, C.P.C., by referring the issue to the learned Trial Court for recording the requisite findings and returning the evidence, if any, together with its findings. Any application for additional evidence shall be considered independently and strictly in accordance with Order XLI, Rule 27, C.P.C.

iii. The learned Appellate Court shall examine the identity and extent of the property; the petitioners’ claim of inheritance from Abdul Hameed Khan; the proof, scope and legal effect of the competing sale deeds and revenue entries; and the objection regarding non-joinder. If a necessary party has not been impleaded, it shall consider whether the defect can be cured by exercising the power under Order I, Rule 10(2), C.P.C. It may also consider a local investigation under Order XXVI, Rule 9, C.P.C., if such a course is necessary to identify the property.

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iv. The parties shall be afforded a fair opportunity of hearing and shall appear before the learned Appellate Court on 26.10.2026. Any further evidence shall be received only if, and to the extent that, it is permissible under the applicable provisions of law and necessary for a proper decision.

v. The learned Appellate Court shall decide the matter expeditiously, preferably within three months of receipt of the record.

19.It is clarified that this judgment does not declare title in favour of either side, nor does this Court express any concluded opinion on the merits of the competing claims. The learned Appellate Court shall decide the matter independently, in accordance with law, and uninfluenced by any observation herein except to the extent of the legal directions expressly given. The judgments and decrees concerning the properties described at Serial Nos. 1, 3, 4 and 5 of the amended plaint shall remain undisturbed.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*Sultan*