Pirzada Syed ul Amin Vs Haleem Gul & others

Judgment sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Civil Revision No.136‐P/2014 Pirzada Syed ul Amin V/s Haleem Gul & others

Present:

 Syed Hamid Ali Shah, Advocate for the petitioner.

 M/s Arshad Jamal Qureshi and Jehanzeb Khan Muhammadzai, Advocates for the respondents

Date of hearing: 22.09.2025.

JUDGMENT

MUHAMMAD FAHEEM WALI, J.‐ Through the instant Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, 1908, the petitioner has called in question the legality and propriety of the judgment and decree dated 21.11.2013 passed by the learned Additional District Judge‐XIV, Peshawar in Civil Appeal No.52/13 of 2011, whereby the appeal preferred by the petitioner was dismissed and the judgment and decree dated 31.10.2011 passed by the learned Civil Judge‐XXVIII, Peshawar in

Civil Suit No.23/1 of 1988 was maintained. Hence, the petitioner prayed as under;

“To set aside the impugned judgments and decrees dated 21.11.2013 and 31.10.2011 passed by Additional District Judge‐XIV, Peshawar and Civil Judge‐XXVIII, Peshawar respectively and to decree the suit of the petitioner/plaintiff with costs throughout.”

2.Brief facts of the case are that originally the property was the ownership of Sahib Ditta Mal son of Baisaki Ram Katri according to the Jamabandi for the year 1929‐30, which was later on declared as evacuee property after partition of the sub‐continent in the year 1947‐48. The said Sahib Ditta Mal was residing at Rawalpindi, and his other property i.e. the disputed property situated at Peshawar was declared as evacuee property and transferred in the name of Government of Pakistan vide mutation No.1375 dated 27.07.1964. Although the heirs of Sahib Ditta Mal had already converted to Islamic faith and their property no more remained liable to be treated and declared as evacuee property, and in this regard after a prolong litigation, the property was finally declared to

be the ownership of legal heirs of the deceased Sahib Ditta Mal through Meher Daas alias Meher Ali, resulting into sanctioning of inheritance mutation No.1594 dated 27.04.1967 in the name of aforesaid legal heirs. Mst. Niamat Bibi D/o Meher Ali – one of the legal heirs of deceased Sahib Ditta Mal through her father Meher Ali – transferred her respective share through gift mutation in favour of the plaintiff, who filed a suit for partition, wherein a preliminary decree dated 27.11.1989 was passed in favour of the plaintiff to the extent of his ownership and in this respect vide final decree dated 13.07.1991 partition mutation No.147 dated 15.07.1993 was sanctioned in the name of the plaintiff. The defendants having no concern with the ownership of the suit property were asked to hand over possession of the suit premises to the plaintiff, which they refused, giving rise to filing of the instant suit for possession, which was concurrently decided against the plaintiff/petitioner;

hence, the instant petition.

3.Arguments of learned counsel for the parties heard and with their able assistance record of the case is scanned through.

4.Compendious reading of the decision of both the Civil court and the Appellate court would highlight that the petitioner/plaintiff has primarily been non suited on the ground that the petitioner was not able to establish the lawful transfer of the suit property in his favour by failing to prove the ingredients of a valid gift, by not establishing the delivery of possession, which is the basic ingredient for a valid gift, in addition to the offer and acceptance required to be made by the donor and donee, respectively. It has been further held that the suit for possession against the respondents/defendants was not maintainable for the reason that the petitioner had already obtained a preliminary and final decree in a suit for partition and the better course to adopt for the petitioner was to have sought execution of the final decree, so passed in his favour, and in this regard a separate suit for possession against the

respondents/defendants was not maintainable.

Moreover, it has also been held by both the courts that the property has already been vested in the name of Government of Pakistan as evacuee property which was duly allotted in the name of predecessor of the respondents/defendants through PTD dated 31/10/1961 and the same has still remained recorded in the official entries; then, presumption of truth would be attached to the entries of the official record and such entries of transfer duly effected cannot be easily disturbed. Last but not the least; great weightage has been given by the courts to the continuous possession enjoyed by the

respondents/defendants over the suit property in the pre & post allotment period. In order to reach a just & proper conclusion, this court deems it appropriate to discuss each of the above mentioned grounds separately, that prevailed with the lower fora in passing the impugned orders, so as to do complete justice between the parties.

5.Before dilating upon other merits of the case, it is necessary to recollect that the property was originally the ownership of one Sahib Ditta Mal, who through a registered document executed on 23.09.1933 bequeathed his movable and immovable property, with the direction that upon his death the property shall devolve upon his wife Daropti Devi.

After his death on 06.11.1933, the said Sahib Ditta Mal was survived by his widow Daropti Devi and a son by the name of Meher Das – both are the legal heirs of Sahib Ditta Mal – who later on converted to the Islamic faith and changed their names to Mst. Sheher Bano and Meher Ali, respectively. Mst. Sheher Bano (Daropti Devi) died on 08.09.1948, while Meher Ali (Meher Das) died on 13.07.1946, leaving behind a widow namely Mst. Allah Rakhi and a daughter by the name of Niamat Bibi. It is worth mentioning that the said Meher Ali had a predeceased son by the name of Prithvi Nath, who died on 06.12.1945, during the lifetime of his father, leaving behind a widow namely Mst. Malka Sultana and a daughter by the name of

Mst. Shama‐i‐Anjuman. After the demise of Mst.

Sheher Bano on 08.09.1948, a suit for possession through partition and declaration was filed by Mst.

Malka Sultana and Mst. Shama‐i‐Anjuman on the ground that they are owners of 280/576 shares in the legacy left behind by deceased Sahib Ditta Mal.

During the course of said proceedings, the point for determination has arisen before the court that whether through the registered document Mst.

Sheher Bano (Daropti Devi) was declared to be an absolute owner of the property mentioned in the will deed or she was merely declared entitled to the extent of the will deed and enjoyment of control over the bequeathed property till her lifetime, whereafter the property shall revert back to the then surviving legal heirs of deceased, Sahib Ditta Mal. This dispute went upto the high court which was ultimately decided through a reported judgment by the Lahore High Court in the case titled Nur Ali & others Vs Malka Sultana reported as PLD 1961 WP (Lahore) 431, where, in the concluding portion of paragraph‐9

of the judgment, Meher Ali (Meher Das) has been declared as the only son of the original owner Sahib Ditta Mal, and his whole property would on the death of the said Meher Ali, devolve upon his legal representatives according to the Muslim Law for the reason that Meher Das after conversion to Islamic faith as Meher Ali, his case shall not be governed by the canons of Hindu Law of inheritance because of his aforesaid conversion to the Islamic faith.

So far as the rights and liabilities of the parties are concerned, as nothing has been produced nor the same is available on record to show that the judgment passed in the case titled “Nur Ali vs Malka Sultana” (supra), has ever been disturbed by the Apex Court, thus, it finally determined the status of the parties to be belonging to Islamic faith and their respective shares in inheritance shall be determined under the Hanfi School of Law. It has been further held that since the property left behind by Sahib Ditta Mal was deemed to be the ownership of Meher Ali,

and the same has to be distributed in accordance with Hanfi Law; therefore, Mst. Allah Rakhi, widow of Meher Ali was declared owner of 1/8th share of the property left by her husband as a sharer, while Mst.

Niamat Bibi, the only surviving daughter of deceased Meher Ali, was declared entitled to 1/2 share of the property left by her father as a sharer under the Hanfi Law of succession. Similarly, Mst. Shama‐i‐Anjuman, the daughter of Prithvi Nath, predeceased son of Meher Ali, was declared entitled to 1/6th share of the property as a sharer. However, since Meher Ali left no heir, who could be held to be a residuary, therefore, no distant kindred will get any share in his property, and the rule of Radd (Return) would be applicable.

Meher Ali’s widow cannot be benefit by the rule of Radd, but his daughter and his son’s daughter can;

with the result that the share of Mst. Niamat Bibi would increase to 63/96th and that of Mst. Shama‐i‐ Anjuman to 21/96th, while that of Mst. Allah Rakhi would remain 1/8th i.e. 12/96th. This judgment in the case of “Nur Ali” (Supra) has been delivered on 13th

March 1961. The effect of this judgment has been incorporated in the revenue record by duly mentioning the aforesaid shares distributed in favour of the legal heirs of deceased Sahib Ditta Mal vide his inheritance mutation No.1594 dated 24.04.1967.

6.After determination of their legal rights as such and declaration qua their entitlement to the property of deceased Sahib Ditta Mal through Meher Ali and after insertion of their names in the Revenue record, the aforesaid share holders made various transactions of sale and other transfers in favour of other persons, that led to a fresh round of litigation amongst the stakeholders. One of these transactions pertain to a gift mutation No. 5059 dated 27.12.1984, whereby Mst. Niamat Bibi daughter of Meher Ali transferred 48 Marla land in favour of the present petitioner/plaintiff. In order to separate his share, the petitioner/plaintiff filed a suit for partition of the property which was decided in his favour by granting preliminary decree for partition dated 27.11.1989, culminating into a final decree dated 13.07.1991 and

consequently, partition mutation No. 5147 dated 15.07.1993 was entered and attested in favour of the decree holders, but in the meanwhile the plaintiff/petitioner filed the present suit for possession against the respondents in the year 1988, which was contested by the defendants/ respondents by filing a written statement wherein despite questioning the authenticity of mutation No. 5059 dated 27.12.1984, a counter plea of adverse possession was also raised. During the course of proceedings, an amended plaint was filed by the petitioner/plaintiff on 26.10.2004, and in reply to that amended plaint, written statement was filed on 10.11.2004, where, in addition to the plea of adverse possession, the property has also been claimed to be the ownership of the defendants, but without mentioning the details of the transactions or the mode of transfer through which the defendants became owners of the property. During pendency of the proceedings, the defendants submitted an application on 25.05.2011, for amendment of their

written statement on the ground that they be allowed amendment to the extent that due to clerical error, in the written statement, due to inadvertence, acquiring ownership of the suit property by the defendants and its allotment through PTD has not been mentioned, which may be allowed for the ends of justice. This application was duly replied, and vide order dated 21.06.2011 the same was dismissed by the learned trial court on the ground that such a request for amendment could not be entertained so as to allow the parties to change their stance, and bring about a new ground of attack or defence, against the other party. Although, this application for seeking amendment in the written statement on the ground that defendants are owners of the suit property on the basis of a PTD has been declined by the learned trial court, but a claim towards the ownership of the suit property on the basis of the aforesaid PTD has already been set up, which ultimately prevailed with the court at the time of making final decision in the case.

7.From the aforementioned transcript of facts it has become abundantly clear that the parties are at loggerheads by claiming the suit property to be their respective ownership to the exclusion of their counter part, albeit conflicting reasons, as the plaintiff based his claim of ownership upon the suit property on the basis of a gift mutation No. 5059 dated 27.12.1984, while, on the other hand, the defendant has laid a claim to the suit property to be their ownership, firstly, on the basis of adverse possession and secondly, by purchase of the suit property through allotment of the land vide a PTD Ex:PW3/1 dated 31.10.1961.

8.The claim of maturity of title of the respondents on the basis of adverse possession has already been laid to rest by the Apex Court in the case titled Maqbool Ahmad V/s Hakoomat‐e‐Pakistan reported in (1991 SCMR 2063), wherein entitlement to the property on the basis of long standing uninterrupted physical possession adverse to the interest of the original registered/recorded owner has

been declared to be against the principles of Islam, and all such laws in the form of Section 28 and Article 144 of the Limitation Act, has been declared to be null & void being repugnant to the injunctions of Islam, as enshrined in the Holy Quran and Sunnah of the Holy Prophet (PBUH). Therefore, such portion of the written statement is not enforceable in the eyes of law, and has rightly not been considered by the learned lower courts. Needless to mention that these provisions of law had already been omitted from the Statute Books.

So far as the respondents’ claim of ownership of the suit property is concerned, it predominantly pertains to the transfer of ownership in their favour through allotment of land being an evacuee property through PTD duly exhibited as Ex:PW3/1, through an open auction dated 31.10.1961, by making the necessary deposit of the auction amount on 06.06.1962. This is the most crucial point for determination before this court to identify that whether the suit property was Muslim property and

its devolution upon the legal heirs of deceased Sahib Ditta Mal and its ultimate transfer in the name of the plaintiff was legal or to consider the suit property to be an evacuee property and its subsequent allotment through auction as aforesaid in the name of respondents has been validly made in accordance with the settled legal principles? To adequately resolve this controversy, it is pertinent to mention that after the determination of the shares of the legal heirs of deceased Sahib Ditta Mal and its subsequent incorporation in the revenue record, the said legal heirs made various transfers/transactions to the extent of their respective shares, where Sarfaraz Khan, one of the vendees, who purchased the property from Mst. Allah Rakhi, sought declaration from Additional Custodian Settlement, to the effect that the property is non evacuee, which was dismissed by the Deputy Custodian vide order dated 14.03.1977, however appeal filed thereagainst was accepted. One Mst. Fatima Bibi assailed the Appellate order in Revision, which was accepted vide order

dated 02.07.1978, and the case was remanded back to the Deputy Custodian for a decision afresh. This remand order was challenged by Sarfaraz Khan in a second revision, where the question of jurisdiction raised by Mst. Fatima Bibi was overruled. This order passed in revision was further assailed through writ petition No.363 of 1983, which was also dismissed.

Being aggrieved of the said dismissal order, the same was challenged in CPLA No.93 of 1985, which was converted into Appeal (CA No.104 of 1985, captioned as “Mst. Fatima Bibi & others Vs. Sarfaraz Khan & others”), and vide order dated 06.12.1987 the case was remanded to the Notified Officer, constituted under Section 2(2) of the Evacuee Property & Displaced Persons Laws (Repealed) Act 1975, with the direction, “to finally decide the matter after taking into account all the relevant factors, inter alia, where the decision of High Court in RFA No.96 of 1953 did not expressly or impliedly decide the matter in controversy, thereby debarring the settlement authority from reopening the matter. If not, what is

the status of the property and whether it now stands transferred to the appellant under the law”.

Consequently, the Notified Officer, vide its order dated 17.07.1990 decided the matter in the following terms:

“(a) The suit property alongwith the superstructure i.e Serai, Houses etc are without any doubt Muslim property.

(b)Any portion of the property disposed of by Settlement Authorities or other considering it Evacuee Property was not correct and as such order, of allotment or sale were obviously a nullity and of no legal consequence.

(c)The alienation of Khasra No.792/652/336 etc measuring 2 kanals 9 3⁄4 marlas and Khasra No. 786/643/335 etc measuring 181⁄4 marlas by way of sale by Fazal Rehman and Allah Rakhi in favour of Sarfaraz and his brothers was valid by all means and this transfer includes the structure built on these plots of land. In the circumstances explained above I accordingly hold Sarfaraz Khan and his brothers as owners of the above mentioned plots of land alongwith structure thereon in the shape of Serai, House etc and the orders of the Settlement Authorities

transferring the property in dispute or a part thereof, to any body including the respondent, as illegal and ineffective on the genuine and legal rights of Sarfaraz Khan etc over the plots with structures thereon.”

A cursory look at the aforesaid findings of learned Notified Officer as Deputy Custodian of Evacuee Property, Peshawar, would reveal that the property has been declared to be a Muslim property and disposal of a portion of the property by the settlement authorities and others considering the same to be an evacuee property was not correct and as such the orders of allotment or sale were declared to be a nullity and of no legal consequence in the eyes of law. Similarly, the alienation made by some of the legal heirs of deceased Sahib Ditta Mal, in favour of the purchaser were declared valid by all means. This order of the Notified officer was challenged in a writ petition No.59 of 1991 under the title of “Mst. Fatima Bibi Vs. Sarfaraz Khan” decided on 14.05.1991, through a judgment authored by his Lordship Hon’ble Mr. Justice Abdur Rehman Khan, as he then was. This

writ petition was dismissed by their Lordships through a Division Bench judgment by upholding the order of the Notified Officer for the reason that the same has been passed strictly in accordance with law and based on merits. The respondents being further dissatisfied with the outcome of the writ petition preferred a Civil Petition No. 242 of 1991 under the title of “Mst.

Fatima Bibi widow & others Vs. Sarfaraz Khan & others” before the Apex Court. However, the same was also dismissed vide judgment & order dated 04.02.1992, as no point of law of public importance was held to be involved in the matter and the petition was dismissed by refusing leave to appeal. Thus, the declaration & observations made by the Notified officer as Deputy Custodian of the Evacuee Property Peshawar, to the extent of declaring the property to be a Muslim property and its status being a non evacuee land; therefore, nullifying the disposal of portion of the said property by the settlement authorities and its further transfer through order of

allotment to be a nullity in the eyes of law, has attained finality.

The aforesaid chronology of the previous litigation would lead us to draw a conclusion that the title and ownership of the transferors of the petitioner has duly been established by the relevant authority and subsequently validated by the orders of the superior Courts in various rounds of litigation, but with the same result. It is pertinent to mention that the original judgments passed in the series of litigation between the stakeholders reported as PLD 1961 W.P (Lahore) 431 still holds field, and the same has neither been assailed before the Apex Court nor it has been revisited so far either. In the same vein, the second round of litigation has also culminated in favour of the transferor of the petitioner that has also attained finality right upto the Apex Court and nothing is available on record to show that either a Review has been filed or decided against the transferors of the petitioner by upsetting the judgment dated 04.02.1992 passed in Civil Petition

No. 242 of 1991. Meaning thereby, that the aforesaid judgments of the superior courts, to the extent of the controversy involved in the present matter being finally determined and settled by the Apex Court, duly qualify the status of a Judgment in Rem; thereafter, any question arising during the course of subsequent litigation, but until & unless the aforesaid judgments & orders of the superior courts, which has already resolved the controversy are disturbed, had obtained the status of a judgment in rem, then, in such a situation, the same can only be given effect in accordance with the determination so made by the superior courts. Therefore, once the property has been declared to be a Muslim property and its subsequent allotment by the settlement authorities to other persons has been declared a nullity, then the same question cannot be reopened in the subsequent litigation after it has attained finality upto the last court of Civil adjudication. Therefore, on this score too the learned lower courts have fallen in error by giving preference to the allotment order vide PTD

dated 31.10.1961, in the presence of the prior counter declaration already passed by the superior courts of the county. Reliance is placed on Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Maqsad Hayat and others (2023 SCMR 8); Hadayat Ullah and others v. Federation of Pakistan and others (2022 SCMR 1691); Federation v. Qamar Hussain (PLD 2004 SC 77); Ejaz Rasool v. Member National Industrial Relations Commission and others (2014 PLC 288 Lahore); and Trustees of the Port of Karachi v.

Karachi International Container Terminal Limited, (K.I.C.T.) (2010 CLC 1666 [Karachi]).

Moreover, it is an established principle of law that judgment in rem not only bind the parties but also the strangers in conclusive terms. To this end, Justice Munir in his ‘Principles and Digest of the Law of Evidence’ at page 563, made a very crucial distinction between the judgment in rem and judgment in personam as under:

The point adjudicated upon in a judgment in rem is always as to the status of the res and

is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be, matter with which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it such as it is declared. Section 41 of the Evidence Act does not use the term 'judgment in rem', but it incorporates the law on the subject of judgments in rem, and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character or to any specific thing not as against any specified person but absolutely. Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of Justice unless he or those under whom he claims were parties to the proceedings in which it was given. This rule of law is referable to the maxims of Roman Law namely, 'Res inter also judicata nullun inter alias prejudicium facit', or 'Res inter alias acta alteri nocere non debet'. Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law. Section 41 of the

Evidence Act is the foundation for the exception of judgment in rem in our corpus juris.

9.In addition to the above, it is relevant to mention that the petitioner has already been non suited on the ground that admittedly he had already sought separation of his share by filing a suit for partition before the competent court of law where a preliminary decree has been granted in his favour, which was merged into a final decree, whereafter the only course available to the petitioner to seek possession of the property is by means of filing for execution of the final decree passed during the partition proceedings. In this regard the petitioner’s pursuit against the respondent without impleadment of the other joint owners, in a unilateral manner, without the concurrence of the other co‐owners is not in accordance with law. This issue has already been put to rest by the Apex Court in the case of Taj Wali Shah Vs. Bakhti Zaman reported in (2019 SCMR

84)in the following words:

“28. In conclusion, it would be appropriate to recapitulate the important issues discussed and decided herein above. The same are that:

i. ............................ ii. ............................ iii. ............................ iv. ............................ v. ............................ vi. ............................ vii. ............................ viii. In an undivided immovable property one of the co‐sharers can maintain a suit for ejectment of a possessor in respect of the entire property and in such a case the following may ensue:

firstly, the said suit of the co‐sharer cannot be considered as evidence of his‐denial of the title of the other co‐sharers; secondly, that the suit brought by said co‐ sharer would be deemed to be for the benefit of the other co‐sharers; and thirdly, when the said co‐sharer acquires possession in consequence of the said proceedings, he would be in possession of the entire property, on behalf of all co‐ sharers and his said possession cannot be deemed as adverse to the other co‐sharers.”

The aforesaid directions of the Apex court clarifies that a co‐sharer in an un‐divided immovable property can maintain a suit for ejectment against a possessor, in respect of the entire property, but the same cannot be considered as a proof of his denial of title of the other co‐sharers, and any suit brought by him would be deemed to be for the benefit of all the co‐sharers, and if in consequence of the said proceeding, the possession is acquired by the said co‐ sharer, then he would be holding the same on behalf of all co‐sharers, which cannot be deemed to be adverse to the other co‐sharers.

10.Admittedly, the property has been

partitioned between the co‐owners and in this regard final decree has already been passed and a partition mutation duly sanctioned by the competent Civil Court, and the petitioner is within his right to seek possession of the suit property from a person in occupation, who does not have a valid title or a right of occupation over the suit property. The contention of the learned counsel for the respondent that the

only option that can be resorted to for restoration of possession lies in filing of execution of the partition decree is also misconceived, because a decree for partition can only be executed, in real terms, against the co‐owner, who is in possession of the portion of the shares allotted to the decree holder. However, as against another person, who occupies a land without any legal authority and also not in his capacity as a co‐ decree holder, then his such execution can only be entertained by giving symbolic possession of the property but if the decree holder wants to regain physical possession of the property against such person, the decree holder has to resort to filing a suit for possession, for the reason that his such request for physical possession against a person who is either a tenant or entitled to occupy the same otherwise and is not bound by the decree, cannot be entertained in accordance with Order 21 Rule 36 CPC.

For ready reference Order XXI Rule 36 of the Civil Procedure Code, is reproduced as under:

“36. Decree for delivery of immovable property where in occupancy of tenant. –

Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.”

The superior Courts have consistently held that where immovable property, subject to a decree for delivery or possession, is in the occupation of a tenant or any other person who is not bound by the decree, such occupant cannot be physically dispossessed in execution proceedings, and the decree‐holder is entitled only to symbolic or constructive possession in terms of Order XXI Rule 36 CPC. However, once symbolic possession has been lawfully delivered in accordance with law, the execution proceedings stand exhausted, and if thereafter the decree‐holder is dispossessed or actual possession is resisted, the only

competent remedy is to institute a fresh suit for possession or ejectment, and not to seek repeated execution of the same decree. This principle stands settled by the Division Bench judgment in Miru and Biru v. Nur Muhammad and others (PLD 1949 Lahore 361), wherein it was held that symbolic possession, given in a manner warranted by the condition of the property, effectively determines the prior possession, and any subsequent forcible re‐entry renders the occupant a trespasser, giving rise to a fresh cause of action. The same view was previously affirmed in Juggobundhu Mukerjee v. Ram Chander Bysack (ILR 5 Cal. 584 FB), Lokessur Koer v. Purgan Roy (ILR 7 Cal.

418), and approved by the Privy Council in Sri Radha Krishna Chanderji v. Ram Bahadur (AIR 1917 PC 197), holding that symbolic delivery, where statutorily prescribed, is equivalent to actual possession as between the parties to the decree. If the person in occupancy of the property continued thereafter in possession, the decree holder would have to bring another suit for ejectment or possession. In

consonance with this settled doctrine, it has further been held that after delivery of symbolic possession, the judgment‐debtor must be treated as a trespasser, and the decree‐holder cannot revive execution proceedings but must seek redress through an independent suit for ejectment, as laid down by the Indian High Court of Punjab in Jaimal Singh Dasaundha Singh v. Rakha Singh and others (AIR

1957 P&H 17).

11.Another intriguing aspect of the matter is that the respondent during the course of proceedings had asked for amendment of the written statement, which has been expressly refused through order dated 21.06.2011 on the ground that allowing such amendment would change the original stance of the applicant/defendant, which cannot be allowed to the extent of raising a plea of acquiring ownership through allotment of land vide PTD Ex:PW3/1, as the same case runs counter to the original stance of the defendant, wherein the property has been claimed on the basis of adverse possession. But, it is interesting

to note that the rights of the parties has been determined in favour of the defendant while placing reliance upon the very PTD Ex:PW3/1, purportedly on the ground that the document has been produced in evidence through official record, to which presumption of truth is attached under the law. In holding this, the learned trial court has failed to take notice of its own previous order passed during the course of proceeding vide order dated 21.06.2011.

and also the mandatory provisions of Order 6 Rule 7 CPC, that restrain a party from producing evidence on a ground which has not been raised in its pleadings. A party would be precluded from leading evidence in support of a plea which has not been raised in their pleadings and any evidence even if produced in violation of this provision shall be discarded by the court of law. It is time and again held by the superior courts that the rule of secundum allegata et probates, not only excludes the element of surprise, but also precludes the party from proving what has not been alleged or pleaded. In this regard reliance is placed on

Muhammad Ghaffar (deceased) through LRs and others v. Arif Muhammad (2023 SCMR 344); Mst.

Syeda Irshad Fatima Rizvi v. Bashir Ahmad and others (PLD 2020 Islamabad 184); Sardar Muhammad Naseem Khan v. Returning Officer, PP‐ 12 and others (2015 SCMR 1698); Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914);

Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Hail Muhammad (PLD 1976 SC 469); Messrs Choudhary Brothers Ltd., Sialkot v.

The Jaranwala Central Co‐operative Bank Ltd., Jaranwala (1968 SCMR 804); Binyameen and 3 others v. Chaudhry Hakim and another (1996 SCMR

336)& Major (Retd.) Barkat Ali and others v. Qaim Din and others (2006 SCMR 562).

12.So far as the contention regarding the non completion of gift due to absence of delivery of possession from the donor in favour of the donee/petitioner is concerned, it is not the requirement of law that in all cases, possession of the

gifted property shall be physically delivered to the donee, as the “Muhammadan Law” provides numerous exceptions to the aforesaid general rule, wherein, under many circumstances, the same can be dispensed with. In this regard, a particular reference can be given to the Paragraph 152 of the “Muhammadan Law”, which provides that in a situation, where the property is either in the occupation of tenants or a third person, then, the gift can be completed by a request made by the donor to the tenant or the third person to attorn to the donee;

or through delivery of the title deed; or by mutation in the Revenue Register or the landlord’s Sherista.

Likewise, paragraph 158 read with para 160, also recognize a gift of an undivided share in a property which is capable of division, albeit the same shall be treated to be an irregular transaction but not void, which, however, can be perfected and rendered valid through a subsequent partition and also by delivery to the donee of the share given to him. Meaning thereby, that gift of an immovable property made by

the donor in favour of the donee in a joint property, which is in the possession and occupation of a tenant or a third person can only be considered as irregular but not void, which can ultimately be perfected by delivery of possession to the donee through partition or through belated delivery of possession of the attorned property.

But, having said that, essential aspect of the case is that whether the defendant/respondent, who is herein defending a suit for possession, can question the validity or otherwise of the instrument of gift by raising objection about non fulfillment of one or more of the core ingredients of the gift transaction, or to the contrary such a question can only be entertained if the same has been raised, either by the donor or his successor in interest, in a proceeding between the parties to the gift transaction inter‐se where the subject matter of the suit pertains to the genuineness of the very gift transaction. This anomaly has already been settled by the Superior Courts from various territorial jurisdictions of the country. In this regard

the first judgment can be traced back to the case of Fazal Muhammad Vs Mst. Rakhi, reported as (PLD 1958 (W.P) Lahore 2018) wherein it has been categorically held that an objection to the delivery of possession from a donor to the donee can only be raised when such an objection is either made by the donor himself or his heirs, and no objection can be entertained from a third party who is in possession of a property but claims the same adversely to both the donor and the donee – relevant headnote of the judgment is reproduced;

“(e) Muhammadan Law‐‐‐ Gift‐Objection as to delivery of possession can be taken either by donor or his heirs. As an ordinary rule of Muslim Law a gift is to be followed by delivery of possession, that is, the donor is to deliver to the donee whatever possession he has, but the objection as to delivery of possession is one which can be taken either by the donor himself or by his heirs and in a case where the donor is himself supporting the gift no effect can be given to an objection by a third party who is in possession and claims adversely to both donor and the donee.”

Similarly, in the case of Dost Muhammad Khan Vs Imam Bakhsh reported as (PLD 1971 Peshawar 150), while re‐affirming the principle laid down in case titled Fazal Ahmad Vs. Mst. Rakhi (Supra), and further placing reliance on Kalu Baig, Afzal Baig & others Vs. Gulzar Baig, Lal Baig and others [AIR 1946 Nag Pure 357], this court held in the following words;

"The question whether possession has been delivered is relevant only when an issue is raised between the donor or those claiming under him on one side, and the donee or those claiming under him on the other. A stranger cannot invoke the rule that the gift is bad because there has been no delivery of possession. In cases of gifts under Mohammadan Law, the question of delivery of possession is only relevant as between the donor and those who claim under him and the donee. Consequently where the donor upholds the gift and the donee accepts it, it is a valid gift, and the strangers cannot question its validity on the ground of want of delivery of possession.

The question whether possession has been delivered is relevant only when an issue is raised between the donee or those claiming under him on the one side and the donor or those claiming under him on the other. Where a gift is otherwise proper, a stranger cannot invoke the

rule that the gift is bad because there has been no delivery of possession."

In the case of Mst. Naseem Vs Mst. Shehla Durrani reported as (2010 CLC 1861), a Division Bench of this court has settled the controversy in the following terms;

“As it was a joint property owned and possessed by the predecessor of appellants portion/part of which was transferred through the said registered deed, so delivery of physical possession in the circumstances was not possible unless the property was partitioned between them and only constructive possession in the circumstances would be sufficient to validate a gift a joint property as the mode and manner of delivery of possession over the spot is dependent upon the nature and character of a property and the question of delivery of possession has to be considered by taking into consideration all the facts and circumstances of each case. If the actual possession cannot be delivered by the donor to the donee and the donor has done all that what he was required to do to divest himself of the gifted property then the gift would be considered to be complete and effective.”

The aforesaid principle has consistently been followed and upheld in the cases reported as;

Sanaullah Fakir Vs. Alam Fakir (1968 SCMR 311),

Habib Ullah & others Vs. M. Hassan Khan & others (1991 MLD 25) and Jamal Din Vs. Syed Altaf Hussain Shah (2005 MLD 1351).

13.Elaborate reading of the above referred consistent opinion of the various high courts, including those from pre partition era, would clearly show that a valid gift of an immovable property can be made about a portion which is part of an undivided share of immovable property even without physical delivery of the property, but the same can be validated later on by adopting all the options available under the law for securing the possession of the property but until that time constructive possession of the property shall be considered to be a sufficient validation qua completion of the gift. However, it would not be out of place to note that the objection to the validity of a gift on the ground of non delivery of possession can only be raised by either the donor or a person claiming through him, in a suit where the very validity of the gift transaction is the subject matter of the suit. Such an objection can neither be

raised by a stranger to the gift transaction nor it can be entertained in a suit or proceeding, where the determination of the validity of the gift transaction itself is not a matter in issue, especially, when the donor or his legal representative has not put any challenge to the transaction of gift.

14.In view of the foregoing discussion and the legal position elaborated hereinabove, it is held that the petitioner has successfully made out a case warranting interference by this Court. The impugned judgment and decree dated 21.11.2013 passed by the learned Additional District Judge‐XIV, Peshawar, as well as the judgment and decree dated 31.10.2011 passed by the learned Civil Judge‐XXVIII, Peshawar, suffer from material misreading and non‐reading of evidence and a misapplication of the settled principles of law, and thus fail to withstand judicial scrutiny. Consequently, the impugned judgments and decrees are set aside, and the suit filed by the petitioner/plaintiff to the extent of possession is hereby decreed. Rest of the claim of the petitioner is

declined for want of proof. Parties are left to bear their own costs.

Announced on: 22.09.2025 Released on: 19.12.2025

JUDGE

Researched by: Mazhar Ali Khan, Rehmat Ali (SB) Hon’ble Mr. Justice Muhammad Faheem Wali,