Peshawar High Court
Mst. Jameela Khanum Vs Chanzeb and others
Outcome The revision petition was allowed, the appellate court’s judgment and decree were set aside, and the trial court’s dismissal of the suit was restored.
- Case
- C.R No. 69-A of 2009
- Type
- Civil
- Length
- 8 pages
The case concerned title to evacuee property and whether later transfers could stand after the original allotment to Sultan Muhammad had been cancelled. The High Court held that once the allotment was cancelled, Sultan had no transferable title, so the later sale, pre-emption decree, and gift could not confer valid title; it allowed the revision and restored the trial court’s dismissal of the suit.
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- The background of the case
- 4 issues before the court
- 6 holdings, each with the court's own words and page
- 4 laws applied
- 7 cases relied on, linked to the library
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Written by AI from the judgment's text and may miss nuance. Rely on the full judgment below and the court's official copy. Court's own note: Evacuee Property—Allotment—Cancellation—Effect—Subsequent transfers—Validity— Suit property originally evacuee property—Allotted to Sultan Muhammad—Allotment subsequently cancelled by competent authority—Cancellation later restored upon admission by legal heirs—Held, once allotment stood cancelled, Sultan ceased to have any title—Any subsequent transfers emanating from him, including sale, pre-emption decree and gift, lost legal foundation and could not confer valid title—Transferees must sink or swim with the title of their predecessor. Pre-emption—Decree—Scope—Effect on title— Pre-emption decree merely substitutes the pre-emptor in place of the vendee—Does not validate the original transaction nor cure defects in the title of the transferor—Where original allotment stood cancelled, pre-emption decree could not revive or create title—Held, no independent right could flow from such decree. Evacuee Trust Property—Displaced Persons (Land Settlement) Act, 1958—Jurisdiction—Civil Court—Ouster— Orders relating to cancellation of allotment passed under sections 10 & 11 of the Displaced Persons (Land Settlement) Act, 1958—Jurisdiction of Civil Court barred under section 25 thereof—Further bar under section 14 of the Evacuee Trust Properties (Management and Disposal) Act, 1975—Held, challenge to such orders could not be entertained by Civil Court. Title—Derivative rights—Principle— Transferee cannot acquire better title than that of his predecessor—Where title of vendor extinguished, transferee’s claim must also fail—Held, respondents deriving title through a chain originating from cancelled allotment had no enforceable right. Appellate Court—Reversal—Sustainability— Appellate Court reversed trial Court on basis of alleged relationship between parties—No nexus established between original allottee and subsequent allottee from whom petitioners derived title—Held, reasoning of appellate Court unsustainable in law and facts. Foundational illegality—Effect— Where foundational order is without lawful authority, entire superstructure built thereon cannot be sustained. Civil Procedure Code, 1908—S.115—Revision—Scope— High Court interferes where subordinate Court misapplies settled principles of law—Concurrent findings reversed where based on erroneous legal premise.
Full judgment
Official copyJudgment Sheet
PESHAWAR HIGH COURT, ABBOTTABAD BENCH
JUDICIAL DEPARTMENT
Civil Revision No.69-A/2009
Mst. Jameela Khanum.
...(Petitioner) Versus
Chanzeb and others.
...(Respondents)
Present: Malik Waseem Fazal, Advocate for petitioner.
Mr. Tahir Hussain Lughmani, Advocate for respondents.
Date of hearing: 27.04.2026
JUDGMENT
SYED MUDASSER AMEER, J.- Through this revision petition, the petitioners call in question the judgment and decree dated 12.11.2008 passed by the learned Additional District Judge-V, Mansehra, whereby, on acceptance of respondents’ appeal, Suit No.145/1 of 2003 was decreed, while setting aside the judgment and (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer
decree dated 23.12.2005 passed by the learned trial Court dismissing the suit.
2.The lis involves a long chain of events.
Initially, the suit property was owned by Hindus.
After partition of the subcontinent, it became evacuee property and was transferred in favour of the Central Government vide mutation No.2052 dated 20.04.1960. Thereafter, it was allotted in favour of Sultan Muhammad son of Abdul Ghani through R.L-II No.6 and mutation No.3262 dated 20.06.1969. Subsequently, the property was transferred in favour of Umar Khan son of Wali Muhammad Khan vide sale mutation No.4024 dated 28.08.1975.
3.This sale/transfer was pre-empted by Jehandad, father of the respondents, through Suit No.76/1 of 1976, wherein a compromise decree dated 20.07.1976 was passed in his favour, followed by mutation No.4084 dated 20.04.1977.
Jehandad later transferred the suit property through gift mutation No.4389 dated 17.02.1982 in favour of Chanzeb, the present respondent.
4.There was, however, another significant development. The allotment of the suit property in (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer
favour of Sultan Muhammad was cancelled by the Chief Settlement Commissioner (Lands), Hazara vide order dated 24.06.1974 after an inquiry. This order was challenged by Sultan through W.P.
No.32/72 on the ground, inter alia, that it had been passed without affording an opportunity of hearing. The writ petition was accepted by this Court on 30.03.1983 and the matter was remanded for fresh decision.
5.Subsequently, however, the legal heirs of Sultan, through their attorney, admitted the correctness of the cancellation order dated 24.06.1974 and withdrew their claim.
Consequently, vide order dated 05.06.1985 passed by the Assistant Commissioner/Collector, Mansehra, the withdrawal was allowed and the cancellation order stood restored.
6.In the wake thereof, the suit property reverted to the Central Government vide mutation No.4679 dated 26.09.1989. It was thereafter allotted/transferred in favour of Muhammad Mohsin of Rawalpindi vide mutation No.4604 dated 26.09.1989. Subsequently, it was transferred through sale in favour of Munawar (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer
Hussain son of Jumma Khan and petitioner No.1 vide mutation No.4835 dated 28.03.1990. Later, it was transferred in favour of Jumma Khan vide mutation No.5036 dated 20.10.1993 and thereafter in favour of petitioner No.2 vide mutation No.5037 dated 20.10.1993.
7.Upon noticing these adverse entries, the respondents instituted the suit, which was contested by the present petitioners. After full- fledged trial, the learned trial Court dismissed the suit vide judgment and decree dated 23.12.2005.
The appeal preferred by the respondents was, however, accepted, and the suit was decreed, giving rise to the present revision petition.
8.Heard. Record perused.
9.The respondents claim ownership on the basis of gift mutation No.4389 dated 17.02.1982, derived from Jehandad, who himself based his title upon the pre-emption decree dated 20.07.1976 arising out of mutation No.4024 dated
10.The pivotal question, however, is whether Sultan Muhammad, the original allottee, possessed a valid title capable of transmission.
(S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer
11.The record leaves no manner of doubt that Sultan Muhammad’s allotment stood cancelled vide order dated 24.06.1974 passed by the Chief Settlement Commissioner (Lands), Hazara. Though the matter was once remanded by this Court, the legal heirs of Sultan subsequently admitted the correctness of the cancellation order, which was restored on 05.06.1985.
12.In such circumstances, the very foundation of the respondents’ title stands extinguished. Once the allotment in favour of Sultan Muhammad ceased to exist, any subsequent transfer, including the sale in favour of Umar Khan, the pre-emption decree in favour of Jehandad, and the gift in favour of the respondents, cannot survive.
13.It is settled law that a transferee can acquire no better title than that of his predecessor.
If the title of the vendor collapses, the transferee must also fall with it. Reliance in this regard is placed on Talib Hussain v. Member, Board of Revenue (2003 SCMR 549) and Rasheed Ahmad v. Additional Commissioner (Rev.) (2007 CLC (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer
14.There is yet another legal impediment.
Section 25 of the Displaced Persons (Land Settlement) Act, 1958 expressly ousts the jurisdiction of Civil Courts in matters relating to orders passed under sections 10 and 11 of the said Act. Since the cancellation of allotment was effected under these provisions, the respondents could not have challenged the same before a Civil Court. Reliance is placed on Syed Abdul Hakim v.
Muhammad Azam Khan (1991 CMR 1976).
15.Similarly, the suit property being evacuee property, the jurisdiction of Civil Courts is further barred under section 14 of the Evacuee Trust Properties (Management and Disposal) Act, 1975.
In this respect, reliance is placed on Evacuee Trust Property Board v. Ahmed (2004 SCMR
16.The contention of the respondents that their title flows from a pre-emption decree does not advance their case. A pre-emption decree merely substitutes the pre-emptor in place of the vendee. It does not validate or cure defects in the title of the original transferor. Reliance is placed (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer
on Muhammad Hayat v. Settlement Commissioner (Land), Lahore (2001 CLC 1537).
17.Likewise, the argument that the decree in favour of the respondents remains intact is misconceived. The pre-emption decree did nothing more than place Jehandad in the shoes of Umar Khan. It had no bearing on the validity of the original allotment, which had already been cancelled.
18.It is also a settled principle that where the foundational order is without lawful authority, the entire superstructure built thereon cannot be sustained. Reference may be made to Executive District Officer (Education), Rawalpindi v.
Muhammad Younas (2007 SCMR 1835) and Amna Bibi v. Sona Khan (2012 YLR 2047).
19.The learned appellate Court decreed the suit primarily on the reasoning that petitioner No.2 is the real brother of Sultan Muhammad.
This reasoning is wholly insufficient. The respondents have failed to establish any nexus between Sultan Muhammad and Muhammad Mohsin, in whose favour the property was subsequently allotted in 1989. The petitioners, on (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer
the other hand, derive their title from said Mohsin, whose allotment remained valid at the relevant time.
20.Thus, the reasoning adopted by the learned appellate Court is not sustainable in law or on facts.
21.For what has been discussed above, this revision petition is allowed. The judgment and decree dated 12.11.2008 passed by the learned Additional District Judge-V, Mansehra are set aside, and the judgment and decree dated 23.12.2005 passed by the learned trial Court dismissing the suit are restored.
ANNOUNCED.
(Jamil)
JUDGE
(S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer
Text extracted from the court's PDF and reflowed for reading. The court's official copy is authoritative.
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