Zulfiqar Ali & others Vs Muhammad Amin Jan etc

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department) C.R No.283-P of 2015 with C.M No.1803-P of 2025.

Zulfiqar Ali & others Vs Muhammad Amin Jan and others.

Nemo for petitioners.

Mr. Zar Badshah, Advocate, for respondents No. 10 to 18. Mr. Abdul Rashid Pirzada Advocate for respondents No. Present: 1,6,8,11,13,18 to 20 and 25. (Absent despite service) M/s Muhammad Amir Rafiq, Shakeel Zada and Shahid Zaman, and Qazi Salim, Advocates for added respondents. Mr. Ghulam Ali, Advocate, for respondent No. 55.

Date of hearing: 12.08.2026.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.- Through the instant Civil Revision Petition, the petitioners have called in question the judgment & decree dated 19.01.2015 passed by the learned Additional District Judge-IV, Mardan, whereby the appeal preferred against the judgment and decree dated 06.12.2012 passed by the learned Civil Judge-XII, Mardan, in consolidated Civil Suits No. 168/1 and 167/1, was dismissed.

2.Before adverting to the controversy involved, it would be appropriate to recapitulate the relevant facts and the chequered history of the litigation in their chronological sequence, as the matter has passed through various stages of adjudication and, during the pendency of the present revision, certain persons were brought on record pursuant to applications filed under section 12(2) of the Code of Civil Procedure, 1908 (“CPC”).

Background of the litigation.

3.The dispute essentially relates to the ownership and revenue record of property originally claimed to have belonged to Faiz Talab Khan, who had seven sons, namely, Bawar Khan, Abdul Qadar Khan, Sher Afzal Khan, Mir Afzal Khan, Saadat Khan, Mir Akbar Khan and Raidullah Khan. The plaintiffs of Civil Suit No. 168/1 instituted their suit on 02.06.2009, claiming

declaration of their ownership and possession on the basis of registered deed No. 1828 dated 26.10.1946. Their case was that the property had been transferred in their favour through the said registered deed, but the corresponding entries in the revenue record had either not been correctly incorporated or had been recorded on the basis of registered deed No. 1829 instead of registered deed No. 1828. They, therefore, sought declaration, perpetual injunction against alienation of the property on the basis of the allegedly erroneous revenue entries and correction of the revenue record in accordance with their registered title. On the other hand, the plaintiffs of Civil Suit No. 167/1 instituted a suit for declaration and perpetual injunction, claiming themselves to be owners in possession of 3000 kanals out of 31,023 kanals and 11 marlas of the disputed property. Both suits were contested by the respective defendants, consolidated and tried together. After recording of evidence and hearing the parties, the learned trial Court, vide judgment and decree dated 06.12.2012, dismissed Civil Suit No. 167/1, whereas Civil Suit No. 168/1 was decreed. The judgment and decree of the learned trial Court were assailed before the learned Additional District Judge-IV, Mardan, who, vide judgment and decree dated 19.01.2015, dismissed the appeal and maintained the findings of the learned trial Court. The aggrieved parties consequently invoked the revisional jurisdiction of this Court through Civil Revision No. 283-P/2015.

Compromise before this Court and subsequent proceedings.

4.During pendency of the Civil Revision, on 11.04.2016, learned counsel appearing for the respective parties, namely, Mr. Maazullah Khan Barkandi, Advocate, for the petitioners; Mr. Abdur Rashid Khan, Advocate, for respondents No.1, 2, 10, 11 and 12; and Mr. Noor Hakam, Advocate, for respondents No.3 to 9 and 33, made a joint statement before the Court in the presence of the parties. The statement reads:

“We have agreed that the parties admit registered deeds No. 1828 and 1829 in favour of the parties, therefore, the

decree in suit No. 168/1 may be maintained while suit No. 167/1 may be decreed, both the registered deeds should be incorporated in the revenue record to the extent of the land mentioned therein. Parties may be left to bear their own cost.”

On the basis of the aforesaid statement, the judgments and decrees of the Courts below were set aside and Civil Suit No. 167/1 was decreed. Thus, the litigation was sought to be brought to an end on the basis of the compromise and the admitted existence of registered deeds No. 1828 and 1829.

5.Subsequently, however, added respondents, who were not parties to the aforesaid compromise proceedings, approached this Court through applications under section 12(2) CPC, challenging the judgment and decree dated 11.04.2016 on the ground, inter alia, that their independent rights and interests in the disputed property had neither been represented nor adjudicated upon. Applications bearing C.M. No. 24-P/2018 were filed by the legal heirs of Amir Nosh, including Mst. Mufeed Begum and others. Likewise, Said Bakht, Mubarak Zeb, Shah Zeb and Bakhtiar, being the legal heirs of Bawar Khan, also questioned the judgment of this Court. C.M. No. 10-P/2018 was filed by the daughters of Amir Nosh, namely Mst. Mufeed Begum, Farida Begum and Sadarat Begum. C.M. No.15-P/2018 was filed by persons claiming to be purchasers from Saadat Khan and Sher Afzal Khan, who alleged that the parties to Civil Revision No. 283-P/2015 had compromised the matter to their prejudice and had thereby purported to defeat their independent rights arising from subsequent transactions. All the applications were allowed through common judgement by this court on 17.03.2025 and the applicants were brought on record as added respondents in the Civil Revision and instant Civil Revision was revived/ restored.

Service upon the original petitioners.

6.There were six original petitioners, namely Zulfiqar Ali, Sardar Ali, Afsar Ali, Mst. Falak, Mst. Bushra and Mst. Majmara,

who were directed to be served through all possible modes. The matter being considerably old, it was taken up in pursuance of the order dated 22.06.2026. Mr. Aimal Khan Barkandi, Advocate, informed the Court that although his late father, Mr. Maazullah Khan Barkandi, Advocate, had represented the petitioners, after his father's death he had no contact or instructions from the petitioners. Learned counsel appearing for added respondents, namely, M/S Muhammad Amir Rafiq, Shakeel Zada and Shahid Zaman, Advocates, informed the Court that, as a compromise had earlier been affected between the parties, respondents No. 23 and 30 were relevant to the controversy and were believed to be in contact with the petitioners. Their cell numbers were accordingly furnished to the Court, whereafter directions were issued for service upon all the petitioners through all possible means. The Moharrir Branch of the Civil Revision submitted a detailed report regarding the efforts made for service through respondents No. 23 and 30. Cell numbers of petitioners No.2 and 3 were obtained and were found switched on; however, when attempts were made to contact them, the calls were not answered and the numbers were subsequently switched off. Thereafter, the SHO, Police Station Chura, Mardan, was also directed to effect service. The report submitted by the police reflects service upon Afsar Ali s/o Quresh Khan, (petitioner) bearing CNIC No. 16101-1148739-9 and cell No. 03059693513. Despite such service, neither Afsar Ali nor his brothers, sisters or mother, who are the remaining petitioners, appeared before this Court. One Badal Khan, step-brother of petitioners No.1 to 5 and step-son of Mst. Majmara, is present before the Court. He is also the husband of respondent No. 33, Mst. Musarrat. In these circumstances, and after giving due consideration to the repeated efforts made to secure the presence of the original petitioners and to protect the rights of all persons who had subsequently come on record, the matter has been heard on merits with the assistance of learned counsel who are present before the Court.

Nature of the original transactions.

7.The controversy, when examined against its historical background, revolves around two registered deeds, namely, registered deed No. 1828 dated 26.10.1946 and registered deed No. 1829 dated 26.10.1946, both stated to have emanated from Faiz Talab Khan. The beneficiaries of registered deed No. 1828 were Abdul Qadar Khan, Sher Afzal Khan, Saadat Khan, Mir Akbar Khan and Raidullah Khan, sons of Faiz Talab Khan, whereas the beneficiaries of registered deed No. 1829 were the grandsons of Faiz Talab Khan. Thus, both sets of claimants trace their respective titles to the same predecessor, namely, Faiz Talab Khan. It is significant that the plaintiffs of Civil Suit No. 167/1, whose suit was dismissed by both Courts below, had not pleaded in their plaint the material fact of acquisition of the property through registered deed No. 1829. This omission substantially contributed to the dismissal of their suit. Nevertheless, the relationship of the beneficiaries of registered deed No. 1829 with Faiz Talab Khan has not been disputed. Similarly, the status of the beneficiaries of registered deed No. 1828 as sons of Faiz Talab Khan has not been seriously controverted.

8.The plaintiffs of Civil Suit No. 168/1 principally complained that although their registered deed had been incorporated in the revenue record, the shares and the source of title had not been correctly reflected. According to them, the revenue record erroneously reflected alienation in their favour on the basis of registered deed No. 1829 rather than registered deed No. 1828, necessitating judicial intervention for correction and proper incorporation of their title. It is also apparent from the record that the plaintiffs of Civil Suit No. 167/1 claimed rights to the extent of 1800 kanals, whereas the plaintiffs of Civil Suit No. 168/1 claimed approximately 8937 kanals from the disputed property. When the matter came before this Court in Civil Revision No. 283-P/2015, the aforesaid position culminated in the joint statement dated 11.04.2016, whereby the parties then before

the Court agreed that both registered deeds No. 1828 and 1829 be given effect to in the revenue record to the extent of the land mentioned therein. The difficulty, however, is that the matter did not end there.

Emergence of the rights claimed by the added respondents.

9.After the applicants under section 12(2) CPC were brought on record, a materially different aspect of the controversy emerged. The added respondents have asserted rights founded upon mutation No. 1107, which, according to learned counsel representing them, was attested pursuant to a decision of the Deputy Commissioner in Suit No. 8/6 dated 01.06.1949 and was subsequently incorporated in the revenue record. This assertion is of considerable legal and factual significance. It is not merely a collateral objection to the compromise between the original parties. Rather, it constitutes an independent claim concerning the source, extent and subsistence of title in the disputed property. Learned counsel representing the added respondents were specifically asked whether the alienation made by Faiz Talab Khan through registered deeds No. 1828 and 1829 could subsequently be questioned by the legal heirs of Faiz Talab Khan. In response, Mr. Shakeel Zada, learned Advocate, produced a copy of mutation No. 1107. Conversely, learned counsel representing respondents No. 10 to 18 contended that Faiz Talab Khan had ceased to be the owner of the property before execution and registration of the deeds in 1946. The first aspect, namely, whether an owner could alienate his property in favour of one or more persons, including to the exclusion of his legal heirs, is no longer res integra. The Hon'ble Supreme Court in Ghulam Muhammad v. Mian Muhammad and another (2007 SCMR 231) has recognized the unfettered right of an owner to alienate his property in favour of any person, including by excluding one or more of his prospective legal heirs. That principle, however, does not conclude the controversy before us.

Why the matter requires remand.

10.The decisive question is not simply whether registered deeds No. 1828 and 1829 were executed and registered in 1946. Nor is the controversy confined to the abstract proposition whether Faiz Talab Khan could alienate his property in favour of some of his descendants. The real difficulty is that mutation No. 1107 and the rights claimed thereunder were neither part of the original pleadings nor the subject of adjudication before the Courts below. The persons now asserting rights on the strength of that mutation were not parties to the original litigation in a manner enabling their independent claims to be properly pleaded, controverted and adjudicated upon. Their assertions, therefore, could not have been effectively examined either by the learned trial Court or by the learned appellate Court. Equally important is the fact that, while exercising revisional jurisdiction, this Court cannot satisfactorily determine disputed questions of title which require examination of the original revenue record, the basis and legality of mutation No. 1107, the nature and extent of the alleged alienation thereunder, the relationship between the parties, the effect of the registered deeds and the competing claims of the persons deriving title from the beneficiaries thereof, without affording all concerned parties a meaningful opportunity to plead their respective cases and lead evidence. The issue is particularly important because the added respondents do not merely seek to support or oppose the original judgments. They assert independent and substantive rights in the property. Those rights may have a direct bearing upon the validity, extent and legal effect of the title claimed by the plaintiffs of both suits. Therefore, any attempt by this Court to finally determine those questions on the basis of the material presently available would not only amount to adjudicating disputed questions of fact in revisional jurisdiction but would also deprive the concerned parties of the opportunity to establish their respective claims through pleadings, production of the original revenue record and evidence.

11.The Court is conscious that litigation must ordinarily attain finality and that remand should not be ordered merely to provide a

party with an opportunity to fill gaps in its case. A remand becomes necessary, however, where an issue essential to the determination of the real controversy has emerged at a subsequent stage, where persons asserting independent rights have been brought on record, and where such rights were neither pleaded nor adjudicated upon by the Courts below. The present case falls squarely within that category.

The stance of the added respondents, particularly those claiming through mutation No. 1107 and those claiming as vendees from Saadat Khan and Sher Afzal Khan, was not before the Courts below. Consequently, there was no occasion for those Courts to examine the validity and legal effect of mutation No. 1107; the source and extent of the title claimed thereunder; its relationship with registered deeds No. 1828 and 1829; the alleged prior alienation by Faiz Talab Khan; or the effect of subsequent alienations made by the beneficiaries of the registered deeds. These are not matters which can appropriately be determined for the first time in revisional jurisdiction. They require a proper trial, based upon complete pleadings, production of the relevant original revenue record and registration record, and an opportunity to all concerned parties to lead evidence and rebut the case of their opponents.

Necessary amendment and impleadment.

12.In order to bring the controversy to its logical conclusion and to avoid further rounds of litigation, it is necessary that the pleadings themselves reflect the complete dispute now emerging from the record. Accordingly, the plaintiffs of both Civil Suit No. 167/1 and Civil Suit No. 168/1 shall be permitted to amend their respective plaints, to the extent necessary for incorporating the subsequent developments and the claims of the persons now brought on record. In particular, the plaintiffs shall array all the added respondents/applicants who have been brought on record in consequence of the proceedings under section 12(2) CPC as defendants in their respective suits. The plaintiffs of Civil Suit No.

167/1 shall also be at liberty to appropriately amend their prayer so as to clearly and comprehensively seek the relief which they claim on the basis of registered deed No. 1829 and the subsequent proceedings, rather than leaving the real nature of their claim to be inferred from the material brought before this Court. Both sets of plaintiffs shall submit their amended plaints before the learned trial Court, whereafter all the defendants, including the added respondents, shall be afforded an opportunity to file their respective written statements and to raise all lawful pleas available to them.

Scope of adjudication on remand.

13.The learned trial Court shall thereafter adjudicate the consolidated suits afresh, strictly in accordance with law and on the basis of the pleadings and evidence brought on record. Without limiting the jurisdiction of the learned trial Court, the following material questions shall receive specific consideration:

i. Whether registered deeds No. 1828 and 1829 dated 26.10.1946 were validly executed, registered and attested and what property and shares were transferred thereunder;

ii. Whether Faiz Talab Khan was the lawful owner of the property, or of the relevant shares therein, at the time of execution and registration of the aforesaid deeds;

iii. The nature, origin, validity and legal effect of mutation No. 1107, including the decision of the Deputy Commissioner in Suit No. 8/6 dated 01.06.1949 on the basis of which the mutation is stated to have been attested;

iv. Whether mutation No. 1107 confers, recognizes or records any right, title or interest in favour of the added respondents and, if so, the extent and legal character of such rights;

v. Whether the rights claimed on the basis of mutation No. 1107 are inconsistent with, subsequent to, or otherwise affected by registered deeds No. 1828 and 1829;

vi. Whether the beneficiaries of registered deeds No. 1828 and 1829 acquired valid title to the extent claimed by them and whether the subsequent alienations made by Saadat Khan and Sher Afzal Khan

in favour of the persons now arrayed as defendants created any legally enforceable rights;

vii. Whether the fact that neither Bawar Khan nor his legal heirs, during his lifetime or thereafter within the relevant period, challenged the registered deeds No. 1828 and 1829 has any legal consequence for the claims now advanced by his legal heirs, and if so, to what extent;

viii. Whether the revenue entries correctly reflect the registered instruments and the actual title of the parties, and whether any correction, cancellation, incorporation or consequential relief is warranted; and

ix. Ultimately, what relief, if any, each of the plaintiffs and defendants is entitled to in accordance with law.

The learned trial Court shall not treat any observation made herein as a final determination of the aforesaid factual controversies. All parties shall remain at liberty to establish their respective claims by producing admissible evidence, including the original registered deeds, the complete revenue record, mutation No. 1107, the proceedings and order on the basis of which the mutation was attested, and any other relevant documentary or oral evidence permissible in law.

Conclusion.

14.For the foregoing reasons, this Court is of the considered view that the judgments and decrees of the learned Courts below cannot be allowed to stand in their present form. The principal reason for remand is not merely the existence of a disputed claim but the emergence, after the earlier adjudication, of independent claims of persons who were not afforded an opportunity before the Courts below to plead and establish their rights, particularly rights asserted on the strength of mutation No. 1107 and subsequent transactions. Those claims may materially affect the determination of title and the relief sought by the plaintiffs. Their adjudication without a proper trial would offend the fundamental requirement of fair opportunity and would also risk an incomplete or inconclusive determination of the real controversy. The purpose of remand, therefore, is to ensure that the entire dispute is

decided once and for all, on the basis of complete pleadings and evidence and after hearing every person whose proprietary rights may be affected by the ultimate judgment, rather than permitting the litigation to generate another round of proceedings at a later stage.

15.Consequently, the instant Civil Revision Petition is allowed. The judgment and decree dated 19.01.2015 passed by the learned Additional District Judge-IV, Mardan, and the judgment and decree dated 06.12.2012 passed by the learned Civil Judge-XII, Mardan, in Civil Suits No. 168/1 and 167/1, are set aside. Both suits are remanded to the learned trial Court for fresh adjudication in accordance with the observations and directions contained herein. The plaintiffs of Civil Suit No. 167/1 and Civil Suit No. 168/1 shall file their respective amended plaints before the learned trial Court, incorporating such amendments as are necessary to disclose their complete claims and, in particular, the plaintiffs of Civil Suit No. 167/1 shall be at liberty to amend their prayer appropriately. All added respondents/applicants who have been brought on record in the proceedings under section 12(2) CPC shall be arrayed as defendants in the respective suits. Thereafter, the defendants shall be granted reasonable opportunity to submit their written statements and the learned trial Court shall frame appropriate issues on the basis of the amended pleadings. The learned trial Court shall decide the consolidated suits afresh after affording all parties a full and effective opportunity to produce documentary and oral evidence and to rebut the case of the opposite side. The Court shall examine the competing claims arising from registered deeds No. 1828 and 1829, mutation No. 1107 and subsequent transactions independently and strictly in accordance with law. Nothing contained in this judgment shall be construed as an expression of opinion on the ultimate merits of any of those claims. The learned trial Court shall bear in mind that the litigation is considerably old. It shall, therefore, proceed with expedition and shall not grant unnecessary adjournments. Subject

to the cooperation of the parties and ordinary exigencies of judicial proceedings, the learned trial Court shall endeavour to conclude the proceedings within five months from the date of submission of the amended plaints. The parties shall appear before the learned Civil Judge-XII, Mardan, on 12.09.2026. Parties are left to bear their own costs.

Announced.

JUDGE

(SB)Hon’ble Mr. Justice Muhammad Naeem Anwar. Asif Jan Sr.S.S.