Farhat Ullah etc Vs Abdul Malik etc

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Civil Revision No. 369-P/2020 along with C.M No.

510-P/2020

Farhat Ullah & Others ........................Petitioners Vs Abdul Malik & Others ..................... Respondents Present: M/S. Muhammad Taif Khan and Aimal Khan Barkandi, Advocates for the petitioners.

Mr. Ashfaq Ahmad Advocate for respondents No. 1 & 2 (through video link).

Date of hearing: 12.1.2026

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through this Civil Revision Petition, petitioner has challenged the judgement and decree of the learned Additional District Judge-VI, Mardan dated 22.02.2020, whereby the appeal filed by the present petitioners was dismissed and thereby maintained the judgment and judgment & decree of the learned Civil Judge-X, Mardan dated 31.10.2018, who vide the same had dismissed suit No. 167/1 of 2015 filed by the present petitioner and decreed No. 166/1 of 2016 filed by the respndents/defendants.

(Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

2.Precisely, the facts leading to the filing of the instant revision petition are that initially on 12.12.2015, the present petitioners filed a suit against Abdul Malik & Fazal Ghani for declaration, permanent injunctions and for dispossession, however, later on with the persmission of the trial court, she filed an amended plaint on 25.07.2016 for declaration to the effect that she is owner in possession of the suit property measuring 10 marlas, which her entitlement is duly reflected in the revenue record and that the registered deed dated 04.06.1973 excuted by one Mst. Tasleem, in favor of Mst. Husan Bano, is illegal against the law & facts and thus, ineffective upon her right. She also prayed for recovery of possession as well as for issuance of permanent/mandatory injunction against the respondetns/defendants. Simultaneously, respondent, namely Abdul Malik also filed a suit No. 166/1 of 2016 on 28.10.2016 for declaration to the effect that they being legal heirs of Mst. Hussan Bano are owner in possession of a constructed plot measuring 05 marlas fully detailed alongwith the boundaries in the heading of the plaint and that the defendants (the (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

present petitioners) have got no concern with the same and the entries in the revenue record showing the ownership of the petitioners/plaintiffs to the extent of 10 marals is incorrect and the same is liable to be corrected. Respondents/defendants in their suit also prayed for issuance of perpetual cum prohibitory injunction. Summoned were issued to the respondents/ defendants and the suit of the present petitioners, who appeared in the suit and submitting their written statement in line with contents of his plaint and whereafter, both the suits were consolidated and then consolidated issues were framed and evidence was recorded in the suit No.

167/1 of 2015 filed by the present petitioners and ultimately, the same was dismissed, whereas, suit No.

166/1 of 2016 filed by the respondents/defendants was decreed vide one of the impugned judgement & decree dated 31.10.2018. The petitioners/plaintiffs considering themselves aggrieved filed an appeal, however, the same has also been dismissed vide second impugned judgement & decree dated 22.02.2020, hence, the instant petition.

(Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

3.Arguments of learned counsels for the parties were heard in considerable detail and the record perused with their able assistance.

4.It is the case of petitioners/plaintiffs as pleaded by her in her plaint that she is owner in possession to the extent of 10 marlas in the suit property as the suit property had purchased by her husband namely Hidayat Ullah in an auction proceedings conducted by the TMA, Mardan and in this regard a mutation No. 1473 was attested in his favour on 06.06.1966 and later on the said Hidayat Ullah has transferred the said property to the present petitioner being his wife vide mutation No. 1900 attested on 23.08.1974 and then the said factum of transfer of 10 marlas property to her do reflects in the subsequent Jamabandi for the year 1994-1995, 2006-2007 and thereafter, and as such on the basis of the aforesaid revenue record, she has challenged the registered deed dated 04.06.1973 attested by Mst. Tasleema in favour of Mst. Hussan Bano (the predecessor-in- interest of the respondents/ defendants), however, the plea of the petitioners/plaintiffs that her husband namely Hidayat Ullah after purchasing the suit (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

property measuring 10 marlas in the auction proceedings had transferred the same as a whole i.e.

(10 marlas) is not established from the record as mutation No. 1900, Ex-P.W 5/2, available on file, which would show that Hidayat Ullah is owner in the suit Khasra number to the extent of 10 marals and that he has transferred half of the same i.e. 05 marlas to his wife Mst. Wahab Jana i.e present petitioner.

The factum of the aforesaid mutation also reflects in the record of rights, Ex PW-4/D-2 to the effect that Mst. Wahab Jana has been entered as owner of half of the property i.e. 05 marlas out of 10 marla on the basis of gift mutation in her favour.

5.During the course of arguments, one of the main emphasis of the learned counsel for the petitioners was that the alleged transfer of 05 marals of land by Hidayat Ullah in favour of Mst. Tasleema (as pleaded by the respondents /defendants) is not established on record as in this regard a mutation No.

1763 available on file as Ex-PW-4/3 was entered but the same was later on cancelled due to non- production of the registered deed No. 513 attested on 11.06.1970, however, such submissions of learned (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

counsel for the petitioners in presence of other documentary material would not be of much significance to appreciate the same in his favour which is to be highlighted in the following paras.

6.Both the parties are not controverting the origin of the suit property measuring 10 marals to the effect that the same was purchased by the husband of the present petitioner namely Hidayat Ullah in auction proceedings conducted by the TMA Mardan, however, it is the case of petitioner/plaintiff that the whole 10 marlas property was transferred by the husband of the petitioner, namely Hidayat Ullah to her through mutation No. 1900, whereas, as against this the stance of the respondents/defendants is that after purchasing the suit property measuring 10 marlas by Hidayat Ullah the husband of the petitioner, has gifted 05 marlas of land to the petitioner vide aforesaid mutation No. 1900, whereas, the remaining 05 marlas was sold by the said Hidayat Ullah to one Mst. Tasleema vide registered deed dated 11.06.1970 (Ex.PW-3/1) and then the said Mst.

Tasleema constructed a house over the said 05 Marals and installed an electricity meter etc. and then (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

sold the said house vide registered deed dated 04.06.1973 to Mst. Hussan Bano, who is the predecessor-in-interest of the present respondent /defendant.

7.In view of the above, when learned counsel for the petitioner was confronted that in his plaint he has only challenged registered deed No. 406 dated 04.06.1973, Ex-P.W 3/2, vide which Mst. Tasleema has sold the disputed property to Mst. Hussan Bano but the petitioner/plaintiff has not challenged registered deed No. 513 dated 11.06.1970 (Ex-P.W 3/1) vide which the suit property has sold by the Hidayat Ullah, the husband of the present petitoner to one Mst. Tasleema and as such if the suit of the petitoner/plaintiff is decreed as prayed for even then the registered deed No. 573 dated 11.06.1970 would remain in the field and it was a deed which directly effects the rights of the petitioner as vide the same her husband had sold the disputed property to Mst.

Tasleema, he was thereafter unable to offer any satisfactory answer and rightly so, as when the petitioner plaintiff has not challenged the very deed No. 513 dated 11.06.1970, which directly affects the (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

right of the petitioner/plaintiff, then challenging the subsequent registered deed from Mst. Tasleem Begum in favour of Hussan Bano would be of no benefit for him, therefore, on this ground alone the suit has rightly been dismissed.

8.During the course of arguments, another objection of the learned counsel for the petitoner was that there is no specification and details of property in the registered deed dated 04.06.1973 relied upon by the respondent/defendant and that the property sold by the husband of the petitioner namely Hidayat Ullah in favour of Mst. Tasleema vide deed No. 513 dated 11.06.1970 are different, however, such submission of the learned counsel for the petitoner is also misconceived as in the deed dated 04.06.1973 complete description of purchased property has been mentioned and as such when the said descriptions were compared with the description of the property as mentioned in the deed dated 11.06.1970, the same are in line to each other, therefore, it was the same property which was sold by Hidayat Ullah in favour of Tasleema Bibi vide dated 11.06.1970 and then the said property has been sold by the said Mst.

(Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

Tasleema Bibi to Mst. Hussan Bano (the predecessor of the present petitioner vide deed 04.06.1973), therefore, the said objection of the learned counsel for the petitioner is also misconceived.

9.There is yet another damaging aspect of the petitioner’s case that though the petitioner/plaintiff has challenged the deed dated 04.06.1973, however, when the son of the petitoner namely Farahat Ullah appeared in the court as P.W-07, he has made the following admissions

"رقبہ متدعويہ ميرے والد نےمسمی گلزار کو عارضی طور رہائش کے لئے ديا تها۔جو کہ بعد ازاں اس نے مدعا عليهم کو رقبہ و قبضہ منتقل کيا تها۔ جو کہ اب مدعا عليهم کے 05 پاس ہے۔ يہ درست ہےکہ مدعا عليهم کو گلزار نے مرلہ مکان کا قبضہ حوالہ کيا تها۔ يہ بهی درست ہے کہ مکان متدعويہ پر بجلی ميڑ گلزار نے اپنے نام سے لگايا تها۔ ميرے والد صاحب کی جائيداد صرف مکان متدعويہ ہی مرلے تمليک کا10 تهی ۔ آج ميں اپنے والده کے حق ميں انتقال پيش نہيں کر سکتا۔ يہ بهی درست ہے کہ ميرے والد بحق تسليم513 صاحب نے اپنے زندگی ميں رجسڑی نمبر بيگم کو کسی بهی فورم پرچلنچ نہيں کيا ہے۔اسی طرح اس نے مسماة تسليم بيگم کی بيدخلی کيلئے بهی کوئی دعوی مرلے کا قبضہ05 دائر نہيں کيا ہے۔ يہ درست ہے کہ " مدعليم کے پاس ميرے بچپن سے موجود ہے۔ In view of the above clear breast admission to the effect that his date of birth is of 1972 and that the respondent/defendant are in possession of the suit property/house since his childhood and when father of the said P.W, and husband of the petitioner, namely Hidayat Ullah has not challenged the (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

registered deed No. 513 dated 11.06.1970 in favour of Mst. Tasleema Begun in his life time and when he has candidly admitted that they have only possession of 05 marlas, whereas the possession of remaining 05 marlas is with respondents/defendants since his childhood, then such admission goes a longway against the plea of the petitioner/plaintiff and in favour of the respondent/defendant, therefore, the suit filed by the petitioners/ plaintiffs has righly been dismissed.

10.It would also be relevant to mention here that since petitioner/plaintiff was plaintiff before the Court, therefore, she was required to have proved all those facts, which she has pleaded in her plaint, however, she has not been able to prove her stance to the effect that 10 marla of land was transferred by her husband in his favour, as the very foundation of her claim was mutation No. 1900 attested on 23.08.1974 would show that half of the property i.e 05 marlas has been transferred to her then, she has been unable to discharge her burden of proof as was required from him under Article 117 of The Qanoon-e-Shahadat Order 1984, and as against this, respondents/ (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

defendants have been able to prove all those facts which they have pleaded in their written statement as well as in their counter suit No. 166/1 of 2016 as with the blessing of the petitoner/plaintiff, the disputed registered deed deed No. 406 dated 04.06.1973 has been brought by P.W-03, as such in such eventuality, they have been able to discharge their burden of proof. It is relevant to mention here that under Article 117 of The Qanun-e-Shahadat Order, 1984, if any person who desires to obtain a favorable judgment from the Court of law is bound to prove all those facts, which he/she has taken in his/her pleadings, either in the plaint or in the written statement. Article 117 being relevant is reproduced below:- “117. Burden of proof.– (1) Whoever desires any Court to give judgment as to any legal right of liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(2)When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

The aforesaid Article of The Qanun-e-

Shahadat Order, 1984 declares that any person who desires a Court to issue a judgment in his/her/their (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

favour, has/have to prove the existence of all those facts which he/she/they has/have pleaded in his/her/their plaint, and the record/evidence would reveal that petitioner/plaintiff has not proved the existence of all those facts on which she has based her plaint. During the course of arguments, learned counsel for the petitioners/plaintiffs tried to pin-point the weakness, lapses and lacunas in the evidence of the respondent/defendant; however, it may be clarified that a party has to succeed on the basis of his/her own evidence and such party cannot derive any benefit from the evidence of his rival. In this case respondents/defendants have proved their claim through cogent and confidence inspiring evidence, whereas petitioner/plaintiff has failed to prove her case. In a case1 it was held by Hon’ble Apex Court that according to the Article 117 of The Qanun-e- Shahadat Order, 1984, if any person desires a court to give judgment as to any legal right or liability, depending on the existence of facts which he asserts, he must prove that those facts exist and burden of proof lies on him. The terminology and term of “Nisar Ali vs. Muhammad Asghar” reported as 2022 SCMR 1054 (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

phrase "burden of proof" entails the burden of substantiating a case. The meaning of "onus probandi" is that if no evidence is produced by the party on whom the burden is cast, then such issue must be found against him. The burden of proof for the deceitful transaction rests normally on the person who impeaches it. In a suit for declaration alleging that the sale was fictitious, the onus is on the plaintiff to prove the same. Where the evidence of plaintiff was self-contradictory and not confidence inspiring then he must fail and where the case is doubtful, the decision must be given in favour of defendant rather than the plaintiff. It is a well settled exposition of law that the plaintiff must succeed on the strength of his own case rather than the weakness of the defendant.

The lawsuits are determined on preponderance or weighing the scale of probabilities in which Court has to see which party has succeeded to prove his case and discharged the onus of proof which can be scrutinized as a whole together with the contradictions, discrepancies or dearth of proof. It is the burdensome duty of the Court to detach the truth from the falsehood and endeavor should be made in (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

terms of the well-known metaphor, "separate the grain from the chaff" which connotes and obligates the Court to scrutinize and evaluate the evidence recorded in the lis judiciously and cautiously in order to stand apart the falsehood from the truth and judge the quality and not the quantity of evidence.

Similarly, in a case2 the Lahore High Court has held that it is settled proposition of law that a party has to succeed on the basis of his own evidence and not on account of lapses in the case of his adversary.

11.It is also relevant to mention here that when once the plaintiff succeeds to prove his/her stance, then under Article 118 of The Qanun-e-Shahadat Order, 1984, the burden will shift to the defendant and then under Article 119 of The Qanun-e-Shahdat Order, 1984 such defendant who wishes the Court to believe existence of a particular fact then such defendant is bound to prove the same. The aforesaid burden on such person is enrooted in Article 119 of The Qanun-e-Shahadat Order, 1984, which is reproduced below:-

“Muhammad Latif vs. Bashir Ahmed and 7 others” reported as

2004 CLC 1010

(Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

“119. Burden of proof as to particular fact: The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustrations

(a)A prosecutes B for theft, and wishes the Court to believe that B admitted the theft, to C. A must prove the admission. (b) B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it.”

The aforesaid provision unmistakably casts duty on the respondents/defendants to prove all those facts, which they have taken/agitated in their written statement qua the rights attached to the suit property and as stated herein above that they have been able to prove the same through their positive and legally admissible evidence. In the case3 it was held by the Apex Court that as per Article 119 of The Qanun-e- Shahadat Order, 1984, burden of proof as to any particular fact lies on that person who wishes to believe the Court in its existence unless it is provided by law that proof of that fact lies on another person.

12.It would also not be out of place to mention here that civil disputes / cases are to be decided on “Messrs Noorani Travels Karachi vs. Muhammad Hanif & others” reported as 2008 SCMR 1395

(Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

the basis of preponderance of evidence and thus if the aforesaid yardstick is applied to the present case, then the same surely tilts in favour of the respondents/defendants as against the petitioner/ plaintiff on legal as well as factual premises. In a case4, 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.

13.In this case, the two Courts below have concurrently recorded their findings of facts and law as against the present petitioner/plaintiff and in favour of the respondents/defendants, which this Court found as perfectly in accordance with the “Abdul Rehman & others vs. Mst. Allah Wasai & others” reported as 2022 SCMR 399

(Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

available evidence of the parties and thus, the same neither suffer from any misreading or non-reading of evidence nor the same suffer from any illegalities or material irregularities, so as to warrant the interference of this Court in a revisional jurisdiction under section 115 CPC. The scope, extent and domain of revisional jurisdiction of this Court has elaborately been dilated upon by the Hon’ble Apex Court in its recent judgment5, it was also held that section 115, CPC empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The “Nasir Ali vs. Muhammad Asghar” reported as 2022 SCMR (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment, which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in the conclusions arrived at by the courts below while exercising power under section 115, C.P.C.

Similarly, in a case6, it was also held that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below. Similar view also reiterated by the Hon’ble Apex Court in a case7 where in para-6 it was held that it is well settled exposition of law, deducible from plethora of dictums laid down by superior “Salamat Ali and others vs. Muhammad Din and others” reported as PLD 2022 Supreme Court 353 “Muhammad Sarwar and others vs. Hashmal Khan and others” reported as PLD 2022 Supreme Court 13 (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

Courts that section 115, C.P.C. empowers and meted out the High Court to satisfy and reassure itself that the order of the subordinate court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. It was also held by the Hon’ble Apex Court in para-10 of the judgment rendered in a case8 that in the case9 this Court declared that where two different interpretations were possible of the evidence brought on record, then appraisal of facts of lower Courts should not be overturned by the High Court in its revisional jurisdiction under section 115 CPC.

Between two possible interpretations, the one “Mst. Zarsheda vs. Nobat Khan” reported as PLD 2022 Supreme Court 21

“Shahbaz Gul and others v. Muhammad Younas Khan and others” reported as 2020 SCMR 867.

(Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

adopted by the trial and appellate Courts should have been maintained, keeping in mind the limited scope of revisional jurisdiction. In a case10 it was also held by the Hon’ble Apex Court that the High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the Courts below while exercising power under section 115, C.P.C. These powers have been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities which cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the Court but confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law, but interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the “Khudadad vs. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others” reported as 2022 SCMR 933 (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

appellate and revisional jurisdiction must not be mixed up or bewildered.

14.In view of the above discussion and exposition of law on the subject, this Revision Petition along with C.M, being bereft of any merit is hereby dismissed and consequently, the impugned judgments and decrees respectively dated 31.10.2018 and 22.02.2020 are maintained and upheld.

Announced:

JUDGE

(Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan