Mst. Habib Un Nisa Vs Mst. Jameela Khatoon

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Civil Revision No. 368-A/2009

JUDGMENT

Date of hearing...................09.02.2026..............................

Petitioners (Mst. Habib-un-Nisa and others) By Qazi Ghulam Raufi, Advocate.

Respondents (Mst. Jameela Khanum and others) By M/S Tahir Faraz Abbasi and Malik Waseem Fazal, Advocates.

AURANGZEB, J.- This revision petition is directed against the judgment and decree dated 04.05.2009, passed by the learned Additional District Judge-V, Abbottabad, whereby appeal filed by the respondents against the judgment and decree dated 24.01.2005 of the Civil Judge-VII, Abbottabad was accepted.

2.The facts of the case, in brief, are as follows: The real respondents/plaintiffs filed a civil suit for declaration and possession concerning the suit property, Khasra Nos.2129, 2130, 2131, 2133, and 2136, measuring 39 kanals 04 marlas, situated at Seer Sharqi, against the petitioners and proforma respondents/defendants. It is alleged in the plaint that the suit property was

previously owned by Non-Muslims prior to the partition of the sub-continent. Following partition, the original owners left Pakistan, and the suit property was declared evacuee property. Plaintiff No. 2, Muhammad Mohsan, submitted a claim form before the Settlement Commissioner, which was accepted and confirmed in RL-II. Subsequently, plaintiff No.2 transferred the suit property to plaintiff No. 1, Mst. Jameela Khanum, through a sale deed, and plaintiff No. 1 is now the rightful owner of the suit property. During the pendency of the RL-II petition, one Ghulam Qadir Kikroo was allotted the suit property;

however, this allotment was later cancelled, and the sale mutation No. 3319, attested in favour of the defendants by the Central Government, was also set aside. Plaintiff No.2 filed a revision petition before the appellate court against the cancellation order, which was allowed, and the case was remanded to the Tehsildar for

reconsideration. Meanwhile, mutation Nos.3690 and 3691 were attested in favour of the defendants. Following the acceptance of plaintiff No. 2’s revision petition, a revision application was filed before the Tehsildar,

Abbottabad, to set aside the mutations attested in favour of the defendants, but the same was rejected. The suit property was declared to be owned by plaintiff No. 2 upon the acceptance of his revision petition.

Therefore, the impugned mutation Nos. 3690 and 3691, attested in favour of the defendants, are alleged to be erroneous, fraudulent, and contrary to the facts, and thus, should be set aside. The plaintiffs claim entitlement to the decree as sought in the present suit. The petitioners/defendants appeared before the learned trial court and contested the suit by filing their written statement. The learned trial court, after framing the issues, recording evidence, and hearing arguments from the learned counsel for both parties, dismissed the suit by judgment and decree dated 04.01.2005.

Dissatisfied with this decision, the real respondents/plaintiffs filed an appeal before the learned appellate court, which was accepted, resulting in a judgment and decree dated 04.05.2009. As a result, the present revision petition has been filed.

3.Arguments heard and record

perused.

4.Perusal of the record reveals that, after thoroughly reviewing the case and the evidence presented, the error in dismissing the suit was correctly identified. The learned trial court had failed to give due consideration to the critical fact that the original allotment of 20.44 units to Ghulam Qadir Kikroo was subsequently revised to 214 units. This excess allotment, which originally included the suit land, was later cancelled. The revision was recorded in the settlement documents, which showed that the allotment was no longer valid for the suit land. Despite this, the earlier erroneous revenue record was upheld without properly addressing the correction and cancellation that had occurred in the settlement process.

5.It was rightly observed that the cancellation of the excessive allotment, as reflected in the settlement records, was a pivotal fact that directly impacted the legitimacy of the claim made by Ghulam Qadir Kikroo. The documentary evidence clearly indicated that the original allotment of

20.44 units to Kikroo had been overstated and later revised to 214 units, which did not include the suit land. The cancellation of the excess allotment was a decisive step that rendered Kikroo’s earlier claim invalid.

Despite this correction, the earlier erroneous record was relied upon.

6.It was also noted that Ghulam Qadir Kikroo, having already availed his rights to land in other areas, could not be entitled to any further claim over the suit land. This principle, as outlined in the settlement and revision records, precluded him from asserting ownership over the suit property.

Kikroo had already secured allotments in other areas, and once his rights in those areas were realized, his claim to the suit land was extinguished. The legal limitation on Kikroo’s rights was not appreciated. Kikroo’s assertion of entitlement to the suit land, after having already availed his rights elsewhere, was legally untenable.

7.In this regard, the failure to consider the broader context of Kikroo’s prior land allotments was criticized. It was pointed out that it was imperative to examine Kikroo's history of land allocation and rights in other

areas, as this history played a crucial role in determining the legitimacy of his claim to the suit property. The oversight of this aspect of the case significantly impacted the analysis and conclusion. The earlier allotment of 20.44 units, and its subsequent revision and cancellation, should have been the basis for the judgment. Instead, reliance was placed on an outdated and erroneous document without considering the cancellation of the excessive allotment.

8.Furthermore, there was incorrect reliance on the presumption of truth generally attached to the revenue record. While it is true that the revenue record holds a presumption of correctness, this principle does not apply when the record has been corrected or revised. The failure to take into account the fact that the original allotment was later revised and corrected, and as such, the presumption of truth no longer applied to the outdated record, was crucial. This oversight needed to be addressed by weighing the reality of the revised settlement documents, which clearly indicated that the excessive allotment had been cancelled.

9.In addition to the issue of the cancelled allotment, the procedural history of the case was addressed, specifically the failure to file an appeal before the Settlement Commissioner. Emphasis was erroneously placed on the requirement for an appeal before the Settlement Commissioner, but it was noted that this was not a necessary step in the circumstances of the case. The corrected allotment and its subsequent cancellation had already been clearly documented in the settlement records, which formed the basis of the plaintiffs’ claim. The insistence on an appeal before the Settlement Commissioner was misguided and

unnecessary, as the plaintiffs had already demonstrated their entitlement to the suit land based on the revised and corrected records.

10.The failure of the plaintiffs to challenge the cancellation before the Settlement Commissioner was not a bar to their claim. The revised settlement records had already established that Kikroo’s claim to the suit land was invalid, and the plaintiffs were the rightful owners. The plaintiffs were entitled to the suit property as a result of the cancellation of the excessive allotment, and

no further legal action was required to prove this fact. The insistence on procedural formalities such as filing an appeal before the Settlement Commissioner was irrelevant in light of the substantial evidence of ownership presented by the plaintiffs.

11.The contention advanced by the petitioners that they are entitled to the protection envisaged under Section 41 of the Transfer of Property Act, 1882, on the premise that they had purchased the suit property from a vendor who was allegedly its ostensible owner, is devoid of substance and carries no legal weight in the peculiar facts and circumstances of the case. The doctrine of ostensible ownership embodied in Section 41 ibid is attracted only where the transfer is made by a person who, with the express or implied consent of the real owner, is held out as the owner, and the transferee, after exercising due care and acting in good faith, purchases the property. In the present matter, the record does not reflect any such consent, express or implied, on the part of the true owner, nor have the petitioners been able to establish that the vendor possessed lawful authority or semblance of title capable of

conferring valid ownership rights. Once the title of the vendor itself is found to be defective or non-existent, the plea of protection under Section 41 of the Transfer of Property Act cannot be pressed into service to defeat the lawful rights of the true owner. It is a settled principle of law that no better title can pass to a vendee than that possessed by the vendor. Reliance in this regard is aptly placed upon the authoritative pronouncement of the august Supreme Court of Pakistan rendered in the case titled Talib Hussain and others versus Member, Board of Revenue and others (2003 SCMR 549), wherein it has been categorically held that the benefit of Section 41 is not available where the foundation of ostensible ownership is not established through the consent of the real owner and where the transferee fails to prove good faith and due diligence. The relevant portion of the judgment of apex court is reproduced for ready reference:- “Now the next question is as to whether petitioners who are the vendees can enjoy the protection as it has been envisaged under section 41 of the Transfer of Property Act suffice it to observe that in respect of evacuee property no such protection is available to a vendee as it has been held in

the judgments (1) Karwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53), (2) Manzoor Hussain v. Fazal Hussain and others (1984 SCMR 1027), (3) Gul Muhammad and others. The Additional Settlement Commissioner and others (1985 SCMR 491), (4) Ejaz Ahmad Khan v. Chahat and others (1987 SCMR 192), (5) Mst. Resham Bibi v. Mst. Elahi Sain (PLD 1991 SC 1034) and (6) Sufi Zaheer Ahmad (deceased) through legal heir v. Chief Settlement and Rehabilitation Commissioner and others (1993 MLD 195). It is important to emphasize that petitioner's entitlement is based upon the entitlement of Syed Nizamuddin, therefore, petitioner either to have survive or sink depending upon determination of legal as of the property which was transferred to him and as now he has failed to keep his entitlement alive, therefore, petitioner’s claim is bound to be rejected.”

Further reliance is placed on another judgment of apex court rendered in case titled Bashir Ahmad and others versus Additional Commissioner with Power of Settlement Commissioner (L) and others (1983 SCMR 1199), wherein it was held that:- “Aggrieved the petitioners have sought leave to appeal. The contention raised on their behalf is that they being bonafide purchasers for value, the sale in their favour should not have been effected and they should have been protected on the principle of

section 41 of the Transfer of Property Act. Such a plea had been held by this court as not available in settlement matters. In Muhammad Yamin v.

Settlement Commissioner (1), decided on 01.03.1974, it had been held:

“As to the argument that the petitioners are bonafide purchasers for value, it is clear that no protection be afforded to them when it has been found that their vendor had no right, title or interest in the demised property.”

In another case subsequently decided on 18.12.1975, that is, Maryam Begum v. Shah Muhammad appearing in the same report at page 342, the view taken was:

“The allotment being in the nature of a grant, we do not see how the counsel for the petitioner can press section 41 of the Transfer of Property Act to seek protection of the transfer when the grant itself is subject to section 10 of the Displaced Persons (Land Settlement) Act, 1985, that is, it could be cancelled on fraud being established. This being the essential condition of the grant, it would exclude the applicability of the transfer of property Act, as in the case of grants made under the Crown Grants Act, 1985.”

The same view has been re-affirmed by the Lahore High Court in case titled Rasheed Ahmad and 2 others versus Additional Commissioner (Rev) Notified Officer Gujranwala Division, Gujranwala

and others (2007 CLC 1801), the relevant para is reproduced below:- “8. Abdul Baqi is the original allottee. His claim was found bogus. Sale in favour of respondents will not confer better title to them. They will sink or swim with him and thus, are not protected under section 41 of the Transfer of Property Act. We respectfully follow the above view. After holding so, the next question which crops us as to whether allotment of the land can be made in favour of informants against their un- utilized produce index units. The Honourable Supreme Court in the case of Muhammad Ramzan and others v. Member (Rev.)/CSS and. others 1997 SCMR 1635, held as under:--

"It may be seen that after repeal of evacuee laws, no provisions were made for allotment of land against any pending verified P.I.Us. Therefore, this Court while examining effect of above referred notification and repealing Act ruled that any allotment order for adjustment against P.I.U. procured by private persons was completely devoid of lawful authority. Relevant observation supporting this view appears in case of Syed Saifullah v. Board of Revenue, Balochistan through its Member (RJT) and 4 others 1991 SCMR 1255, and are reproduced here under:-- "(8) With the repeal of the Evacuee Laws in 1975, the un- allotted agricultural land vested in the Provincial Government against price paid for it. Thereafter, its disposal had to take place according to the

Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no provision for allotments to be made against the pending verified produce index units. For this reason the allotment made after 1975 in favour of the persons from whom the appellant was .claiming was wholly without jurisdiction and lacking in authority.

Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently, its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and the correct status of the property. On this view of the matter the decree of the Civil Court could also not remain intact.

(9)We find, therefore, though for reasons somewhat different recorded by the High Court that the dismissal of the two writ petitions and the acceptance of the revision petition was the requirement of law and justified in the circumstances of the case. The appeals have no merit and are dismissed with no order as to costs."

12.Ultimately, after a comprehensive evaluation of the facts, the legal framework, and the evidence, it was concluded that a fundamental error was made in dismissing the suit. The facts were misread, the law misapplied, and critical evidence regarding

the cancellation of the excessive allotment was ignored. In light of the evidence presented, it was found that the plaintiffs had a valid claim to the suit land, and their ownership was supported by the revised and corrected settlement records. The judgment should be set aside and the plaintiffs' claim upheld.

13.The judgment and decree passed by the learned appellate court were thus maintained, confirming the plaintiffs' rightful entitlement to the suit property. The decision reflected a thorough and well-reasoned analysis of the legal and factual issues involved, ensuring that the plaintiffs received the relief they were entitled to. The judgment not only corrected the earlier error but also reinforced the importance of accurately interpreting and applying the revised settlement records in land disputes. The decision was a proper exercise of jurisdiction and upheld the principles of justice, ensuring that the rightful owner of the property was recognized.

14.It is settled law that civil cases are to be decided on the basis of preponderance of evidence. In the present case the same surely

tilts in favour of respondents/plaintiffs and as against this, petitioners/defendants could not succeed to put any legal weight in their scale so as to turn it in their favour and thus they have to face its consequences. In the case of “Abdul Rehman & others v/s Mst. Allah Wasai & others” reported as 2022 SCMR 399 the Hon’ble Apex Court has held that “in civil dispensation of justice, courts are to adjudge the lis on the standard of preponderance of evidence produced by the parties. And the decision of the court would tilt in favour of the party having preponderance of evidence. As for the burden of proving a fact is concerned, it gains importance and relevance, only when no evidence is led by the concerned party or the Court is unable to take a decision, one way or the other, on the basis of evidence available on record of the case”.

15.It is also settled law that in case of inconsistency of the judgment and decree between the appellate Court and the trial Court, the High Court shall see that as findings of which of the Court are based on proper appraisal of evidence and as such in this case after analyzing and evaluating the

evidence on file, the findings recorded by the appellate Court are correct and are the result of proper appreciation of evidence. In the case of “Mst. Azra Gulzar v/s Muhammad Farooq & another” reported as 2022 SCMR 1625 it was held by the Apex Court that “in a case inconsistency of judgment between the two Courts below the High Court was supposed to give its findings after reappraisal of the entire evidence. It was further held in the aforesaid judgment that the settled law in this regard is that revisional Court in such like situation has to re-appraise the entire evidence just to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law”. In the case of “Madan Gopal and 4 others v.

Maran Bepari and 3 others” reported as PLD 1969 SC 617 it was held by the Apex Court that “if the finding of fact reached by the first appellate Court is at variance with that of the trial Court and as such the finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively

proceeded”. This view is fortified by a long chain of judgments i.e. Alloo v. Sher Khan and others (PLD 1985 SC 382), Abbas Ali Shah and 5 others v. Ghulam Ali and another (2004 SCMR 1342), Abdul Aziz v.

Khuda Dad Khan (2004 SCMR 1046), Karim Bakhsh through L.Rs. and others v.

Jindwadda Shah and others (2005 SCMR 1518), Muhammad Din and others v. Mst.

Naimat Bibi and others (2006 SCMR 586), Muhammad Hassan v. Khawaja. Khalil ur Rehman (2007 SCMR 576) and Q.B.E.

Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. (2008 SCMR 1037).

16.The petitioners have been unable to point out any illegality, material irregularity, or jurisdictional defect in the impugned judgment and decree passed by the learned appellate court, which may warrant interference by this Court in the exercise of its revisional jurisdiction.

17.In view of the foregoing discussion, this revision petition is devoid of merit and is accordingly dismissed.

Announced:

JUDGE

Aftab PS*/