Ismail Vs Alam Shah etc

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Civil Revision No. 768-P/2023

Ismail .............................................Petitioner Vs Alam Shah and Others .................... Respondents Present: Barrister Muhammad Hassan, advocate for the petitioner.

Mr. Asad Khan, advocate for the respondents.

Date of hearing: 19.06.2026

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through the

instant revision petition, petitioner has challenged the judgement and decree of the learned Additional District Judge-II, Mardan dated 17.05.2023, whereby, the appeal filed by the present petitioner was dismissed and thereby, maintained the judgment and decree of the learned Civil Judge-Mardan dated 07.11.2022, who vide the same had also dismissed the suit of petitioner/plaintiff.

2.Precisely, the facts leading to the filing of this petition are that the present petitioner brought a suit for declaration to the effect that he is owner and in (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

symbolic possession of the property fully mentioned in the heading of the plaint and that sale mutation No.

1066 attested on 15.08.1981 in favor of the predecessor in interest of the respondent/plaintiff namely Gul Hameed is the result of fraud, misrepresentation and collusion of the predecessor of respondent/ plaintiff Gul Hameed with the then revenue officials and thus, the same is ineffective upon his right. He has specifically pleaded that he has never effected any sale transaction in favor of Gul Hameed nor he has received any amount as a sale consideration and as such, the impugned sale mutation is a fake and fictitious document and as such, the same is liable to be cancelled. He has also prayed for issuance of permanent/prohibitory injunction restraining the defendants from the alienation of ownership rights of the suit property through sale, gift, mortgage etc. in favor of any other person. When respondent/ defendants were summoned, they defended the impugned mutation to the effect that it has lawfully and legally been executed and since then, they are in possession of the suit property and that the suit of the (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

petitioner/plaintiff is time barred. Keeping in view the divergent pleadings of the parties, the learned Trial Court framed as many as nine (09) issues and the parties were directed to produced their respective evidence, which they have accordingly led and ultimately, the suit filed by the petitioner/plaintiff was dismissed by one of the impugned judgement and decree dated 07.11.2022. The petitioner/plaintiff considering himself aggrieved of the same, preferred an appeal to the court of learned Addl: District Judge-II, Mardan but the same was also dismissed vide the second impugned judgement and decree dated 17.05.2023, hence, the instant petition.

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

4.The para-1 of the plaint reflects the pedigree table of the parties, which would show that Nooran Shah was survived by four sons namely Said Nazeer, Abdul Nazeer, Gul Hameed and Salman Shah.

Petitioner/plaintiff namely Ismail is the son of Abdul Nazeer, whereas, the beneficiary of the impugned (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

mutation namely Gul Hameed is the uncle of the petitioner/plaintiff. It is also an admitted fact that the suit property was the ownership of their common predecessor namely Nooran Shah and as such the same has devolved upon his aforesaid four sons, however, it is the case of the petitioner/plaintiff Ismail that he has not sold the suit property to his uncle namely Gul Hameed through the impugned mutation 1066 and has never received any sale consideration and that the said mutation is the result of fraud and misrepresentation, whereas the case of the legal heirs of Gul Hameed, (respondent No.1 to

4)is that the said mutation has validly and lawfully been executed and further that since then they are in possession of the suit property.

5.Keeping in view the aforesaid contra stances of both the parties, when the present petitioner has specifically pleaded that the impugned mutation No.

1066 attested on 15.08.1981 is the result of fraud and that he has never received any sale consideration amount, then in such eventuality, it was the duty of the respondents/defendants being beneficiary of the said sale mutation to have proved the same as per the (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

required standard of proof, therefore, now this Court would proceed to determine firstly, that as to whether the respondents/defendants being beneficiary of the said sale mutation has been able to prove the original transaction of sale as well as the execution and attestation of the impugned mutation No. 1066, secondly, that as to whether the alleged possession in consequence of the said mutation by the respondents/defendants, specially, keeping in view the inter-se relationship between the parties would be worth consideration to uphold the impugned mutation and thirdly, that as to whether the two fora below have rightly non-suited the petitioner/plaintiff on the ground of limitation or not?

6.Since, the epitome of this controversy revolves around mutation No. 1066 attested on 15.04.1981 therefore, it would be relevant to reproduced its scan copy:

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

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

The aforesaid mutation would show that it has not been signed by Gul Hameed, the predecessor-in- interest of the respondents/defendants. Similarly, the said mutation has also not signed by any private persons, who is/are relative of either of the party, rather one Hazrat Ullah, Ex-Lamberdar and Azeem Ullah s/o Masood Khan, Malgozar (Revenue Collector at village level) who both are the officials of Revenue Department have been shown as marginal witnesses of the said mutation.

Interestingly, none of the aforesaid marginal witnesses have been produced by the respondents/ defendants. Similarly, the respondents/defendants neither in their written statements nor in their court statement as D.W-1 has uttered a single word that as to why they are unable to produced them either being dead or untraceable and even in that eventuality, they would have been required to produce their sons or any other close relative alongwith any documents having their respective undisputed signatures, but no such exercise has neither been alleged nor carried out by the respondents/defendants and thus, they have been unable to discharge their burden. It is also quite (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

surprising that respondents/defendants have not even produced that Patwari, who had entered the impugned mutation and whose name has been disclosed by D.W-1, as one Fazal Hadi, resident of village Kharkai, therefore, in the given facts and circumstances, the respondents/defendants have not even been able to prove the very foundation of their claim that the impugned mutation has validly and lawfully been entered and executed.

7.It would also be relevant to mention here that the suit property is situated in Moza Ghazi Baba ( )غازی باباand Moza Kandao ( )کنڈاؤis a distinct Moza, however, D.W-1, Aleem Shah in his cross- examination has made the following admission:

موجود تها۔ انتقال1066 "ميں بوقت انتقال نمبر " متدعويہ کنڈاؤ بابا ميں درج کيا گيا۔ However, the copy of the impugned mutation No.1066 is available on file as Ex.PW 2/1, which would show that it was entered in another Mouza namely Qasmi ()قاسمی. The said D.W has further admitted that:

"ہم نے روزنامچہ واقعاتی پٹواری کے ساته درج کيا تها۔ مذکوره روزنامچہ پر والد ام نے (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

نشان انگشت ثبت کيا اور عظيم الله اور ملنگ "نے بهی اس پر دستخط ثبت کئے۔ However, the said Roznamcha has neither been produced by Khurshid Khan, Patwari Halqa Mouza Ghazi Baba who has appeared as PW-1 nor by the said DW as he in his cross-examination has shown his inability to produce the same. Further, it is also spelling out from the impugned mutation that the same has been entered in Mouza Qasmi and the fact that the Patwar Khana of Mouza Ghazi Baba is situated in Qasmi has also been admitted by DW-1 and the fact that the suit property is situated in Mouza Ghazi Baba. These words of the said DW-I being relevant are produced as under:-

"ہمارے پٹوارخانہ قاسمی ميں تها جبکہ جائيداد متدعويہ غازی بابا ميں واقع تها۔ يہ درست ہے کہ موضع قاسمی الگ موضع ہے۔ يہ بهی درست ہے کہ ہر دو موضعات کے الگ الگ پٹواری حلقہ "ہيں۔

8.In view of the above, when the very mutation has neither been entered in a Jalsa ( )جلسہat Mouza Ghazi Baba nor the same has been entered in a Mouza, where the suit property is situated rather the same has been entered in another Moza namely (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

Qasmi, then such mutation is against the clear mandate of section 42 of The Land Revenue Act, 1967 and as such, no legal sanctity could be attached to such mutation. In view of the above, the respondent/defendants have not been able to bring on record any legally admissible evidence, so as to consider and held that the impugned mutation has lawfully been entered and executed. In a case1, the Apex Court has held that mere attestation of mutation by itself does not furnish proof of sale and whenever any such transaction was questioned, the onus laid on the beneficiary to prove the transaction and every ingredient thereof as well as the documents if executed for its acknowledgment. In a case2, the Lahore High Court has held that it is a settled principle of law that mutation entry is not a document of title, which by itself does not confer any right, title or interest, and the burden of proof lies upon the person, in whose favour it was attested to establish the validity and genuineness of transfer in his/her favour. It is also a well settled “Muhammad Yaqoob Vs. Mst. Sardaran Bibi and others”, reported as PLD 2020 Supreme Court 338

“Muhammad Younis and others Vs. Mst. Dolat Bibi and Others” reported as 2024 MLD 728.

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

law that if the foundation is illegal and defective then entire structure built on such foundation would have no value in the eyes of law. It is a settled principle of law that once a mutation is challenged the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted in the entry or attestation of such mutation(s) in dispute. However, in the present case, the respondents have miserably failed to plead and prove the time, date, place and names of witnesses in whose presence such original transaction of sale took place inter se the petitioners and respondents because the written statement of the respondents is silent in this regard. When the position is as such, it can safely be held that the respondents have miserably failed to establish their case that the disputed mutations were sanctioned legally. Reliance in this regard is placed on Muhammad Akram and another v. Altaf Ahmad (PLD 2003 Supreme Court 688) and Province of Sindh through Secretary and 2 others v. Rahim Bux and others (2022 CLC 2063). Reliance is also placed on another judgment of the Lahore High Court (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

titled “Gul Muhammad and 11 others Vs. Zulfiqar and 9 others” reported as 2023 YLR Note 27.

9.Another damaging aspect for the case of respondent/defendant is that as per the entries made in the impugned mutation, it was a sale mutation and as per the entries thereupon, Rs. 40,000/- has been shown as paid to the petitioner/plaintiff, and thus, being a sale transaction respondent/defendants were statutorily bound to prove the payment of sale consideration, however, surprisingly, neither in their written statement nor in the Court statement, they have pleaded or stated a single word qua the mode and manner of payment of sale consideration and thus, they have been unable all around to prove the factum of sale. In a case3, the Supreme Court has held that In order to enforce a sale of immovable property it was imperative for the vendee to establish that the transaction was undertaken with a title holder; there was an offer made which was accepted; the parties had no incapability; there was consensus ad idem;

that it was settled against valid consideration and that it was accompanied by delivery of possession.

“Muhammad Yaqoob Vs. Mst. Sardaran Bibi and others” reported as PLD 2020 Supreme Court 338

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

10.As far as the grounds as pressed hard by the learned counsel for the respondent/defendants that since they are in possession of the suit property since the date of attestation of mutation is of no benefit in the peculiar facts and circumstances of this case, as admittedly, it was the case of petitioner/plaintiff from the very inception that after the death of his father namely Abdul Nazir, his mother namely Mst. Zarjana has shifted him and his sister (both minors) due to the apprehension that his other relative may kill them for the sake of property and left village Ghazi Baba and went to her parent house situated at village Sarobi, district Mardan. It is also an admitted fact that the inter-se relationship between the petitioner/ plaintiff namely Ismail and the beneficiary of the impugned mutation namely Gul Hameed is of uncle and nephew and as such, the present petitioner/ plaintiff being a minor and away from his home town, the suit property which was part of the legacy remained in possession of his uncle Gul Hameed, therefore, such possession could not be considered as adversial to the interest of the petitioner/plaintiff. Another objection of the learned counsel for the respondent/defendant (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

was that the suit of the petitioner/plaintiff was time- barred as the mutation was attested on 15.04.1981, whereas, the instant suit has been filed on 20.11.2014, however, such ground too could not be as fatal to outrightly non-suit the petitioner, as as stated herein above that after the death of father of the petitioner/plaintiff he along with his sister were shifted by her mother to their maternal grandfather’s house situated in village Sarobi and as such, when present petitioner got grown up and got knowledge of the impugned mutation, he thereafter, challenged the said impugned mutation by filing the instant suit, therefore, this ground too could not be considered as a valid ground for the dismissal of the instant suit. In a case4, the Lahore High Court has held that the plaintiff/respondent while appearing as P.W.1 has categorically stated that at the time of suit mutations her husband was posted at Sialkot in connection with his service and she did not come to her village in District Chakwal in the year, 1987, when the impugned mutations have been alleged to be attested.

She has also stated that about one year prior to “Syed Muhammad Baqir Shah Vs. Farida Sajid” reported as 2013

CLC 52.

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

making of her statement in Court i.e. 28-07-2001, she learnt about the disputed mutations when she checked the relevant Revenue Record. Her husband Brigadier (Retired) Syed Sajid Hussain Shah appeared as P.W.2. This witness has also categorically stated in his cross-examination that in the year, 1987, he was posted at Silakot and the plaintiff/respondent was living with him at Sialkot and she did not come to her village. He has also stated that after marriage, the plaintiff never came to village Chohan, District Chakwal. The witness produced by the

petitioner/defendant namely Javed Zulfi (DW.1) has shown his complete ignorance regarding the visits of the respondent/plaintiff to the village Chohan, District Chakwal. In the given circumstances, the suit filed by the plaintiff/respondent cannot be held as barred by limitation. The plaintiff has filed the suit within the period of limitation from the date of her knowledge. Even otherwise the question of limitation does not arise in the cases of inheritance. The fraud was also duly established by the plaintiff. Fraud vitiates even most solemn transaction and as such any transaction based on fraud would be void and (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

notwithstanding the bar of limitation, the matter can be considered on merits so as not to allow fraud to perpetuate in this respect.

11.In the instant case, though there are concurrent findings of the two courts below, however, concurrent findings could not be sacrosanct and whenever, they are found to be against the law or evidence or when there is element of misapplication of relevant law, then the same could validly be struck down by the High Court in its revisional jurisdiction.

In a case5, the Hon’ble Apex Court has held as under:-

“It is essential to note that under section 115 of the Code of Civil Procedure (1908), the supervisory jurisdiction of the High Court in a civil revision petition is purely discretionary and rather limited. However, this Court has held on many occasions that such discretion must be exercised in a lawful and valid manner on the basis of well entrenched principles of the exercise of such discretion. Therefore, the High Court shall not arbitrarily refuse to exercise its discretionary powers, rather, it must satisfy itself as to whether jurisdiction has been exercised properly and whether the proceedings of the subordinate Court suffer from any illegality or irregularity.”

“Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Education, Peshawar and others vs. Latif Ullah Khan reported as 2021 SCMR 829

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

Similarly, in another case6 the Hon’ble Apex Court has also held:-

“Before embarking upon to resolve the above proposition, we find it expedient, to briefly assess the nature of the jurisdiction of Courts in relation to civil revisions filed in terms of section 115 of the C.P.C. There can hardly be two opinions on the nature of revisional jurisdiction. It is a supervisory jurisdiction, which is vested in a higher forum (subject to the pecuniary jurisdiction of the case either the learned District Court or the learned High Court) and is exercised and/or is invoked for scrutiny if a 'case decided' by the Court subordinate to the higher Court's jurisdiction, suffers from any defect in terms of exercise of its jurisdiction and/or on the ground(s) that the Court subordinate has acted in exercise of such jurisdiction illegally and/or with material irregularity. On the basis of the law enunciated and settled by this Court, there is wee room for doubt that being a supervisory jurisdiction, the higher forum which is approached (i.e. the revisional Court) is conferred with the power to ensure that the Court subordinate thereto (to the revisional court) conforms to the parameters of its jurisdiction. In other words the revisional jurisdiction is meant to rectify, to obviate, forefend and stave off the exercise of jurisdictional errors/defects and the illegalities and/or material irregularity committed by the subordinate cou$rt in that regard. But the "case decided" (order/judgment assailed) has to squarely fall within the scope and the purview of section 115 of the C.P.C. It may however be categorically and unequivocally mentioned here, that approaching a higher Court in the revisional jurisdiction for the redressal of one's grievance, if the case is covered by section ibid (115, C.P.C.) is not a privilege, but is a valuable right of an aggrieved party. Obviously, such exercise of revisional jurisdiction shall be subject “Mandi Hassan alias Mehdi Hussain and another vs. Muhammad Arif” reported as PLD 2015 Supreme Court 137 (Sher Hassan) (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

to the rules of discretion; but the matter of approaching the revisional court cannot be relegated to a mere privilege of the court and not a right.”

Further reliance in this respect may also be made on the following judgments:- i. Nazim-ud-din and others vs. Sheikh Zia-ul- Qamar and others (2016 SCMR 24);

ii. Iqbal Ahmed vs. Managing director provincial urban development board, N.-W.F.P. Peshawar and others (2015

SCMR 799);

iii. Muhammad Nawaz alias Nawaza and others vs. Member Judicial Board Of Revenue and others (2014 SCMR 914); and iv. Mst. Mobin Fatima vs. Muhammad Yamin and 2 others (PLD 2006 Supreme Court

12.In view of the above, this revision petition is allowed, the impugned judgment and decree of both the fora below dated 07.11.2022 and 17.05.2023 respectively are set-aside and consequently, the suit of the petitioner is decreed as prayed for. The office is directed to prepare the decree sheet in this regard.

Announced:

JUDGE

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