Mst. Minhas Begum & others Vs Manir Akbar Khan & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department) W.P.No.2892-P/2025 Mst. Minhas Begum & Other Versus Manir Akbar Khan & Others

Date of hearing: 06.02.2026.

For petitioner(s): Mr. Fawad Khan, Advocate.

For respondent(s): Mr. Mudassir Nazar, Advocate.

JUDGMENT

Inam Ullah Khan, J.-

1.The petitioners, namely Mst. Menhas Begum and two others, have assailed the judgment and order dated 08.03.2025, passed by the learned Additional District Judge-X, Mardan, in Civil Revision No. 68/CR of 2024. Through the said judgment, the learned revisional Court has set aside the order dated 26.06.2024, passed by the learned Civil Judge-XI, Mardan, in Civil Suit No. 73/1, whereby the suit of the petitioners was rejected in term of Order-VII Rule-11 of Civil Procedure Code (C.P.C).

2.Briefly stated, the relevant facts are that the petitioners / plaintiffs instituted a civil suit for declaration, perpetual injunction, and possession, asserting that they, along with respondents / defendants No.01 to 05, being the legal heirs of late Mir Akbar Khan, are co-owners of the suit property according to their respective shares. The petitioners challenged Tamleek Mutation No. 770 dated 17.08.1998, allegedly executed by their predecessor in favour of respondents / defendants No.01 to 04, terming it false, fraudulent, fabricated, and the outcome of collusion between respondents No.01 to 04 and revenue officials. It was further pleaded that the said Tamleek mutation, as well -1-|P a g e

as subsequent mutations and registries if entered and attested on its basis, have no legal effect upon the rights of the petitioners and are liable to be cancelled.

3.Upon receipt of court notice, respondent / defendant No.01 entered appearance and contested the suit by filing written statement. He also moved an application under Order-VII Rule-11, C.P.C., seeking rejection of the plaint. The petitioners filed a reply to the said application. After hearing arguments from both sides, the learned trial Court, vide order dated 26.06.2024, dismissed the application. Being aggrieved, respondent No.01 filed a civil revision before the learned revisional Court, which, through the impugned judgment and order dated 08.03.2025, allowed the revision petition and accepted the application under Order VII Rule 11, C.P.C., thereby rejecting the suit of the petitioners. Dissatisfied with the said judgment and order, the petitioners have approached this Court by filing the present constitutional petition.

4.This Court heard the detailed arguments of both the learned counsel for the parties, examined the orders of learned trial Court as well as, the learned revisional Court and gone through the available record.

5.In the present case, it is an admitted position that the petitioners and respondents No.01 to 04 are real brothers and sisters inter se, and that the disputed property, which stands mutated in favour of respondents No.01 to 04 through the impugned gift mutation, was the ancestral property of their common predecessor/father. The principal contention of the petitioners is that their predecessor never executed, entered, or knowingly attested any gift mutation in favour of respondents No.01 to 04, and that Gift Mutation No.770, attested on 17.08.1998, is the result of fraud and collusion between the said respondents and the revenue officials. According to petitioners, they are parda-observing ladies who, by settled custom and social practice, ordinarily have no access to revenue records. As a matter of normal prudence, heirs generally approach the revenue record only after the demise of their predecessor and upon the opening of -2-|P a g e

inheritance. Since the father of the parties admittedly died in the year 2017, the assertion of the petitioners that they became aware of the impugned gift mutation only after his death appears to be reasonable and plausible. When viewed from this perspective, the averments contained in the plaint clearly disclose a cause of action. It is by now well-settled that the decisive test for rejection of a plaint under Order VII Rule 11, C.P.C., is whether, upon a meaningful and purposeful reading of the plaint—rather than a formal or pedantic one—a cause of action is made out. The allegations of fraud, collusion, and unlawful deprivation of inheritance rights, as pleaded in the plaint, sufficiently constitute a cause of action that warrants adjudication on merits. At this preliminary stage, the defence set up by the respondents is wholly immaterial and cannot be taken into consideration, as such defence can only be examined after the parties have been afforded an opportunity to lead evidence. Likewise, the objection raised by the respondents regarding the non-challenge to subsequent mutations raises disputed questions of fact, which fall entirely outside the scope of proceedings under Order-VII Rule-11, C.P.C. The Courts, while exercising jurisdiction under this provision, are not permitted to venture into disputed factual realms or to assess the correctness or otherwise of the averments made in the plaint. The grounds taken by the respondents in their application may, at best, be considered during the trial of the suit; however, for the purposes of Order VII Rule 11, C.P.C., the Court is strictly confined to the statutory grounds enumerated therein. Since the contents of the plaint do disclose a cause of action, the question as to whether such cause of action has in fact accrued in favour of the petitioners is a matter to be determined by the learned trial Court after recording pro and contra evidence. In this regard, the Supreme Court, in Ghulam Ali v. Asmat Ullah and another (1990 SCMR 1630) has held that:

While considering the issue of rejection of plaint, held that the assertions made in the plaint had to be seen for the purpose of determining whether the plaint disclosed any cause of action. Lack of proof or weakness of proof in circumstances of case did not furnish any justification for coming to conclusion that there was no cause of action or that the complainant / plaintiff was prevented from invoking the jurisdiction -3-|P a g e

of Civil Court to unearth the mala fides of the officials and by allowing the appeal, remanded the matter to the trial Court for proceedings in accordance with law.

Similarly, in Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826), the Hon'ble Supreme Court held that: “While rejecting a plaint, the trial Court cannot take into consideration the plea of the defendants when such plea is disputed and denied by the plaintiff”. The Honorable High Court of Sindh in Shaheen Nasir Khan v. Mst. Asmat Ara and 06 others (PLD 2002 Karachi 408) has also observed that: “Plaintiffs having no cause of action is something different from the plaint disclosing no cause of action. Whether the plaintiff has a cause of action or not can only be determined on the basis of evidence. It could be rejected under Order-VII Rule-11 of CPC, only in case it did not disclose a cause of action”.

6.It is settled law that a mutation is not a document of title but is maintained primarily for fiscal purposes; therefore, its mere attestation confers no proprietary rights. The burden to prove a disputed gift mutation, especially when it disinherits lawful heirs, lies heavily on the beneficiary. Furthermore, the respondents’ objections regarding res judicata and the bar of limitation are, by their nature, mixed questions of law and fact. Such pleas cannot be decided summarily but require the recording of pro and contra evidence to determine the date of knowledge and the history of prior litigation.

7.Regarding the rejection of the plaint, the law is clear that the Court must confine itself strictly to the averments made in the plaint. As established in authoritative judgments such as Muhammad Saleemullah and others v. Additional District Judge-5, Gujranwala and others (PLD 2005 SC 511); Saleem Malik v. Pakistan Cricket Board (PCB) and 02 others (PLD 2008 Supreme Court 650); and Qayum Nawaz through L.Rs. v. Allah Nawaz through L.Rs. (2012 CLC 1726), a plaint cannot be rejected on the basis of pleas raised in the written statement. If the plaint discloses a cause of action, any contrary defence set up by the respondents is irrelevant at this preliminary stage and must be tested during trial. The Revisional Court, by relying on the defence’s factual -4-|P a g e

objections to reject the plaint, committed a material irregularity.

8.Consequently, this constitutional petition is allowed. The impugned judgment and order dated 08.03.2025 passed by the learned Revisional Court is set aside, and the order dated 26.06.2024 passed by the learned Trial Court is restored. The matter is remanded to the Trial Court to proceed with the trial and decide the case on merits in accordance with the law.

Announced.

(Shahid Ali *JSS*) Sd x x x x x

JUDGE

(S.B)

Justice Inam Ullah Khan

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