Muhammad Ishraq etc. vs Haji Ghazanfar Hussain etc.

Stereo. H C J D A 38 Judgment Sheet

IN THE LAHORE HIGH COURT

RAWALPINDI BENCH, RAWALPINDI

(JUDICIAL DEPARTMENT)

C.R.No.938 of 2014

Muhammad Ishraq (deceased) through L.Rs. etc.

Vs.

Haji Ghazanfar Hussain etc.

JUDGMENT

Date of Hearing 26.10.2026 Petitioners by: Syed Asghar Hussain Sabzwari, Advocate Respondents by: M/s.Malik Muhammad Asghar and Amir Sultan, Advocates In person:Faisal Alam s/o.Haji Ghazanfar Hussain Ghulam Nabi s/o.Khan Muhammad Mr.Muhammad Idrees Rafiq Bhatti, Assistant Advocate General along with Zamir Hussain Girdawar Safdar, Record Keeper Shahid Nawaz, Patwari Nadeem Record Keeper for respondent No.10.

Syed Ahsan Raza Kazmi, J. Through the instant Civil Revision under Section 115 of the Code of Civil Procedure, 1908 (“C.P.C.”), the petitioners have called into question the judgment and decree dated 27.06.2014 passed by the learned Appellate Court, whereby the judgment and decree dated 03.04.2012 passed by the learned Trial Court, dismissing the suit instituted by the respondents, were set aside and the suit was decreed.

2.Briefly stated, the facts necessary for the disposal of the instant Civil Revision are that the respondents instituted a suit for declaration, permanent injunction and mandatory injunction against the petitioners, seeking cancellation of gift Mutation No.556 dated 19.02.1991, including the entry relating to the share in shamlat, as well as subsequent Mutations No.562 dated 09.03.1991, Nos.576 and 577 dated 24.03.1991, No.631 dated 11.05.1991, and registered Sale Deed No.372 dated 22.10.2003. The respondents asserted that Faju and others, their

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predecessors-in-interest, had transferred an 8/9 share in the land comprised in Khata No.99/186, Khasra Nos.685/415, 686/416 and 687/417, measuring 29 kanals and 06 marlas, equivalent to 6 kanals and 01 marla, situated in Mouza Mangal, District Rawalpindi, in favour of Samand Khan through Mutation No.348 dated 17.03.1906, allegedly without transferring any share in the shamlat. Subsequently, Karam Noor, Muhammad Zaman and Muhammad Siddique, successors-in- interest of Samand Khan, transferred the aforesaid land in favour of Nazar Muhammad, predecessor-in-interest of the petitioners, through Mutations Nos.1158 and 1166 sanctioned during 1953–54. It was further alleged that Nazar Muhammad, instead of transferring the land to the extent of 26 kanals and 01 marla, gifted land measuring 30 kanals and 08 marlas in favour of his sons, Muhammad Ishraq and Muhammad Ikhlaq, petitioners Nos.1 and 2, through Gift Mutation No.556 dated 19.02.1991, wherein the share in shamlat was also incorporated. The respondents maintained that the subsequent mutations, having been sanctioned on the basis of an erroneous inclusion of the shamlat share, were illegal and liable to be cancelled.

3.The petitioners contested the suit by filing written statements, controverting the allegations levelled against them. Upon completion of the pleadings, the learned Trial Court framed issues and afforded the parties an opportunity to produce their respective evidence. After recording and appraising the evidence brought on record, the learned Trial Court dismissed the suit vide judgment and decree dated 03.04.2012. However, the appeal preferred by the respondents was accepted by the learned Appellate Court vide judgment and decree dated 27.06.2014, whereby the judgment and decree of the learned Trial Court were set aside and the suit was decreed. Hence, the instant Civil Revision.

4.Learned counsel for the petitioners contends that the learned Appellate Court reversed the well-reasoned judgment and decree passed by the learned Trial Court without properly appreciating the evidence available on record and thereby committed material illegality and irregularity. It is further contended that the suit was hopelessly barred by limitation, a material legal objection which was not properly considered

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by the learned Appellate Court. Learned counsel, therefore, prays that the instant Civil Revision be allowed, the impugned judgment and decree be set aside, and the suit instituted by the respondents be dismissed.

5.Conversely, learned counsel for the respondents supports the impugned judgment and decree and submits that the learned Appellate Court rightly decreed the suit after appreciating the evidence on record. Dismissal of the instant Civil Revision is accordingly sought.

6.Arguments heard. Record perused.

7.The controversy, in essence, concerns the validity of the impugned mutations and registered sale deed, which the respondents seek to challenge on the premise that the relevant revenue entries and subsequent transactions were tainted by fraud, misrepresentation and an unlawful inclusion of the share in shamlat. The question requiring determination is whether the respondents established their claim through legally admissible and sufficient evidence and whether the learned Appellate Court was justified in reversing the findings recorded by the learned Trial Court.

8.The first and foremost consideration is that allegations of fraud, misrepresentation and collusion cannot be sustained on the basis of vague, general or unsubstantiated assertions. Order VI Rule 4, C.P.C. specifically requires that, wherever a party relies upon fraud, misrepresentation, breach of trust, wilful default or undue influence, the necessary particulars shall be stated in the pleadings. The object of this requirement is to ensure that the opposite party is apprised of the precise nature of the allegations and is afforded a fair opportunity to meet the same. A party cannot be permitted to travel beyond its pleadings or to establish a case through evidence which was never specifically set up in the plaint.

9.In the present case, examination of the plaint does not disclose the requisite particulars explaining the precise manner in which the alleged fraud or misrepresentation was perpetrated, the persons responsible therefor, or the circumstances rendering the impugned

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transactions fraudulent. The respondents have relied upon general allegations without setting out the material particulars necessary to substantiate the plea of fraud. Such an omission is material and cannot be cured merely by producing evidence in support of an inadequately pleaded case.

10.The Hon’ble Supreme Court of Pakistan, in Bashir Ahmed through legal representative and others v. Muhammad Hussain and others (PLD 2019 SC 504), reiterated the settled principle that a plea of fraud or concealment must be specifically pleaded with clear and sufficient particulars. The Court also referred to its earlier decisions in Ghulam Shabbir v. Mst. Nur Begum and others (PLD 1977 SC 75), Izzat Bakhsh v. Nazir Ahmad and 13 others (PLD 1976 SC 508), Faizum alias Toor v. Nander Khan and others (2006 SCMR 1931), Akbar Ali Khan and others v. Mukamil Shah and others (2005 SCMR 431), and Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315). The principle enunciated in the aforesaid authorities squarely applies to the controversy in hand. In the absence of specific pleadings and convincing proof of the alleged fraud, the respondents’ challenge to the impugned transactions could not lawfully be accepted merely on the basis of general assertions.

11.The question of burden of proof also assumes significance. In terms of Articles 117 and the succeeding provisions of the Qanun-e- Shahadat Order, 1984, the burden of proving a fact ordinarily lies upon the party who asserts it and seeks a judgment of the Court on its basis. Accordingly, where the respondents sought cancellation of the impugned transactions on the ground of fraud and misrepresentation, the initial burden rested upon them to establish the material facts constituting such fraud. The legal consequences of a failure to discharge that burden cannot be avoided by requiring the petitioners, at the outset, to disprove allegations which have not been established.

12.It is, of course, necessary to distinguish between the burden of proving the alleged fraud and the evidentiary obligation of a party relying upon a particular transaction or document. The legal effect and evidentiary value of a mutation depend upon the nature of the transaction,

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the evidence produced and the applicable law. A revenue entry, by itself, does not confer title where none otherwise exists; nevertheless, an existing revenue record cannot be discarded merely on the basis of an unsubstantiated allegation. The party challenging the relevant entry or transaction must establish legally sustainable grounds for the relief claimed.

13.In the present case, the evidence produced by the respondents does not satisfactorily establish the precise mode, manner or circumstances in which the alleged fraud was committed. The respondents have, therefore, failed to discharge the burden resting upon them in respect of the principal ground on which cancellation of the impugned transactions was sought.

14.A comparative appraisal of the evidence further lends support to the conclusion reached by the learned Trial Court. The depositions of PW-1 to PW-3, as reflected in the record, do not provide a clear and cogent account of the alleged fraudulent conduct. Their statements, when examined in the context of the pleadings and the documentary record, do not sufficiently establish the respondents’ allegations. Of particular significance is the admission of the respondents’ witnesses that the land transferred through Mutation No.348 dated 17.03.1906 was recorded along with the shamlat. Notably the enquiry report/Exh.D2 also depicts that the revenue authorities on the application filed by the respondents observed that mutation No.348 dated 17.03.1906 was recorded along with the shamlat land. This admission as well as enquiry report materially bears upon the respondents’ assertion that the original transaction was confined to the land excluding the relevant shamlat share.

15.On the other hand, the evidence produced by the petitioners was found by the learned Trial Court to be consistent on the material aspects of the controversy and to have remained substantially unshaken during cross-examination. The learned Trial Court, having had the opportunity to assess the evidence as a whole, concluded that the respondents had failed to establish their claim, whereas the petitioners’ version was better supported by the material available on record.

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16.In Mushtaq ul Aarifin and others v. Mumtaz Muhammad and others (2022 SCMR 55), the Hon’ble Supreme Court of Pakistan emphasized the significance of comparative assessment of the quality of evidence produced by the contesting parties. The principle emerging therefrom is that the determination of a civil dispute must rest upon the quality, consistency and probative value of the evidence rather than upon the mere number of witnesses produced by either side. Applying the standard of preponderance of probabilities, the learned Trial Court’s assessment of the evidence cannot be termed arbitrary or contrary to the record. The learned Appellate Court, while reversing that assessment, was required to demonstrate cogent reasons founded upon the evidence and the applicable law. A mere difference of opinion, without identifying a material defect in the findings of the learned Trial Court, would not justify reversal of its decision.

17.The question of limitation furnishes an additional ground requiring consideration. During his cross-examination, respondent No.1 admitted that an application had been moved before the Tehsildar during 1990–91 for correction of the mutations in question. This admission is material for determining the respondents’ knowledge of the impugned revenue entries and the circumstances in which the subsequent civil proceedings were instituted. The suit was filed in 2005, whereas the relevant gift mutation was sanctioned in 1991. The admitted recourse to the revenue authorities during 1990–91 prima facie demonstrates that the respondents were aware of the controversy concerning the relevant entries substantially earlier than the institution of the suit. The plea that limitation does not apply to inheritance matters, as a general proposition, cannot be accepted without qualification. Although a claim to inheritance may involve rights accruing by operation of law, the applicability of limitation must be determined in accordance with the nature of the relief sought, the accrual of the cause of action, the date of knowledge where legally relevant, and the circumstances of the case. Where a claimant seeks to challenge an earlier transaction or revenue entry and third-party rights have subsequently intervened, the question of limitation assumes particular significance and cannot be disregarded merely because the

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dispute has an inheritance-related background. Reliance in this regard has been placed upon the judgments reported as Khaleel Ullah and others vs. Muhaim Khan and others(PLD 2024 SC 600) and Salamat Ali and others vs. Muhammad Din and others (PLD 2022 SC 353). The principle relied upon by the petitioners is that the question of limitation must be examined in the context of the nature of the claim and the intervening rights, rather than treated as automatically inapplicable to every dispute involving inheritance.

18.In the present case, the admission of respondent No.1 concerning the proceedings initiated before the Tehsildar during 1990–91, read with the dates of the impugned transactions and the institution of the suit in 2005, materially supports the objection of limitation. The learned Trial Court’s conclusion in this regard could not lawfully be displaced without a proper examination of the admitted facts and the applicable provisions of the law of limitation. The learned Appellate Court has not demonstrated a legally sustainable basis for disregarding this material circumstance.

19.It is also relevant that the predecessors-in-interest of the respondents did not challenge the impugned transactions during their lifetime, as borne out by the record. Although the respondents seek to rely upon subsequent mutations as independently affecting their rights, the controversy, as presented, substantially emanates from the original transaction recorded through Mutation No.348 dated 17.03.1906 and the subsequent chain of transfers. The legality of the later entries could not be determined in isolation from the foundational transaction and the nature of the rights actually transferred thereunder. The respondents were, therefore, required to establish not only the precise defect in the impugned transactions but also their entitlement to the relief claimed, having regard to the original transaction, the subsequent transfers and the applicable law. Their failure to establish the pleaded fraud, coupled with the material circumstances bearing upon limitation, substantially undermines the basis of the suit.

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20.The record further indicates that the respondents did not successfully challenge the order passed by the learned Additional District Collector concerning correction of the mutation. The legal effect of that circumstance must, of course, be assessed in the context of the nature of the order and the relief sought in the civil suit; nevertheless, it is a relevant feature of the procedural history which could not be overlooked while assessing the respondents’ claim.

21.The fact that the learned Trial Court and the learned Appellate Court have recorded divergent findings does not, by itself, determine the outcome of the instant Civil Revision. It is settled that the jurisdiction of this Court under Section 115, C.P.C. is supervisory and is to be exercised where the subordinate Court has acted contrary to law, exercised jurisdiction not vested in it, failed to exercise jurisdiction so vested, or acted illegally or with material irregularity in the exercise of its jurisdiction, subject to the statutory requirements governing revisional interference. It is equally well settled that the findings of the learned Appellate Court, merely because it is the final Court of fact, are not immune from scrutiny in revisional jurisdiction. Where such findings are vitiated by misreading or non-reading of material evidence, disregard of a material admission, or misapplication of the governing legal principles, this Court is competent to interfere within the confines of Section 115, C.P.C. Conversely, a mere possibility of taking another view of the evidence would not, by itself, justify interference.

22.In the present case, the learned Trial Court examined the evidence in the light of the parties’ respective pleadings and concluded that the respondents had failed to establish the alleged fraud and their entitlement to cancellation of the impugned transactions. The material admissions appearing in the evidence, the absence of specific particulars of fraud, and the circumstances bearing upon limitation lend support to that conclusion. The learned Appellate Court, while reversing the judgment and decree of the learned Trial Court, did not adequately address these material aspects in a manner sufficient to sustain the decree passed in favour of the respondents. Its findings, therefore, suffer from

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material infirmities warranting interference in the exercise of revisional jurisdiction.

23.For the foregoing reasons, this Court is of the considered view that the learned Appellate Court fell into error in reversing the judgment and decree passed by the learned Trial Court without properly addressing the material deficiencies in the respondents’ case. The respondents failed to establish the pleaded fraud through specific particulars and convincing evidence, while the admitted circumstances concerning their prior knowledge of the impugned mutations materially support the objection of limitation. The impugned judgment and decree, therefore, cannot be sustained in law.

24.Consequently, the instant Civil Revision is allowed. The impugned judgment and decree dated 27.06.2014 passed by the learned Appellate Court are set aside, and the judgment and decree dated 03.04.2012 passed by the learned Trial Court are restored, albeit for the additional reasons recorded herein. Resultantly, the suit instituted by the respondents stands dismissed.

(Syed Ahsan Raza Kazmi) Judge

Approved for reporting.

Judge

Amjad