Abdul Raqeeb Khan alias Dilbar Khan through LRs Vs Sana Ullah Khan alias Sanawool through LRs and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial DePartment)

CR No.L08-Bl20l7

Abdut Raqeeb Khan alias Dilbar Khan through LRs Vs

Sana Ullah Khan alias Sanawool through LRs and others

JUDGMENT

Date of hearing: 15.09.2025

For petitioner(s): Mr. Zahid-ul-Haq Advocate For respondent(s): Hafiz Muhammad Hanif Advocate ,0 ***:l€***

MUHAMMAD TARIO AFRIDI. J.- Through the

present Civil Revision Petition, filed under Section 115 of the Code of Civil Procedure, 1908, the petitioner Abdul Raqeeb alias Dilbar Khan has assailed the legality and validity of the judgment and decree dated 27.02.2017, passed by the learned Additional District Judge-III, Bannu, whereby the appeal preferred by the petitioner was partially allowed, and the judgment and decree of the trial court dated 05.10.2015 was modified and consequently a preliminary decree was passed against the defendants No.l to 8 for recovery of the price of the 08-Marla property at the prevalent market rate.

The appellate court further held that the petitioner, being

n a recorded owner of property in the disputed Khasra in the form of a house, who seeks partition of his share as reflected in the revenue record, is entitled to seek partition of his share through due process of law.

2.Precisely stated, the facts of the case are that Abdul Raqeeb, the predecessor-in-interest of impleaded LRs Ghairat Khan and 03 others, (hereinafter to be referred as the deceased petitioners), instituted a civil suit for declaration, possession through partition, and mesne profits, asserting that the built up property formerly 4 comprising Khasra No.l7l9ll2l9ll02, and now bearing Khasra Nos. 131-134, measuring 03-Kanal, l2-Marla, was owned by one Mir Sarwar Khan, the father I predecessor of the deceased petitioner as well as of defendants No. 20 to 27, as reflected in the revenue record of 1937-38. This entry of ownership continued unchanged in the revenue record up to the death of Mir Sarwar Khan in 1976. The deceased petitioner fuither stated that his father, Mir Sarwar Khan, had sold portions of the said property as follows:

i. He sold 09-Marla to Sana Ullah Khan alias Sanaual Khan (predecessor of the defendants No.l to 8) through registered sale deed No.455 dated 08.06.1943 (Ex.PW2lDx-2). This transaction was reflected in the revenue record via mutation No. 797 5 dated: 21.02.1 978 (Ex.PW1/4).

n ii. He further sold 0l-Marla out of the disputed Khasra to Umar Ali Khan, (predecessor of defendants No. 9 to l5), for use as an access thoroughfare to his house, through a registered sale deed No.90 dated 14.05.1970 (Ex.PW2/Dx-1), which was subsequently incorporated in the revenue record via mutation No. 7974 dated 21.02.1 978 (Ex.Pwl/3).

3.The record unequivocally reflects that the aforesaid 09-Marla property was subsequently transferred by Sana Ullah to his mother, Mst. Dilrobana, through a registered stamp-deed No. 493 dated 08.07.1961, on the basis whereof mutation No. 7976 dated 21.02.1978 (Ex.PW-1/5) was later entered and duly attested. 1 Thereafter she alienated the said properly in favour of Umar Ali Khan pursuant to a Civil Court decree dated 19.06.1969, in consequence of which sale-mutation No.7977 dated 21.02.1978 (Ex.PW-1/6) was entered and attested.

4.Since the father of the deceased petitioner had alienated l0-Marla of the property through the aforesaid two registered sale deeds, which were duly incorporated into the revenue record through mutations both attested on 21.02.1978, the deceased petitioner thereby acknowledged the said transactions and did not question their validity in the suit.

5.Perusal of the record reveals that the deceased

n petitioner challenged the validity of Mutation No.7972, dated 21.02.1978 (Ex.PWl/l), which, he alleged, had been fraudulently attested on the basis of registered deed No. 341, dated 13.06.1935, (Ex.PW-2/1), purporting to transfer his deceased father's property measuring 08- Marla to Sana Ullah Khan in the disputed Khata number mentioned in the heading of the plaint. He further assailed Sale Mutation No.7973, dated 21.02.1978 (Ex.PWl/2), contending that the onward transfer of 08- 4 Marla by Sana Ullah Khan to Umar Ali Khan, having itself originated from the alleged fraudulent transfer, was illegal, fraudulent and sought cancellation of both mutations.

6.The defendants were duly summoned, however, only Sher Dad (Defendant No.16) and Dilshad Begum (Defendant No.17) entered appearance and contested the suit by submitting their written statements, raising several legal and factual objections. Upon completion of the recording of evidence, the trial Court dismissed the suit vide judgment dated 05.10.2015. The deceased petitioners challenged this decision through a Regular Civil Appeal, which was partially allowed, whereby the judgment and decree of the trial court dated 05.10.2015 was modified.

7.The appellate court held that the rights of Sher Dad (Defendant No. 16) and Dilshad Begum (Defendant No.17) were protected under the law, and consequently a preliminary decree was passed against the defendants No.l to 8 for recovery of the price of the O8-Marla property at the prevalent market rate, on the ground that through the disputed Mutation No.7972 dated2l.02.1978 (Ex.PW-1/1), Sana Ullah, the predecessor of Defendants No.l to 8, had alienated the said property in his favour. f The appellate courl further held that deceased petitioner, being a recorded owner of the property in the disputed Khasra in the form of a house, who seeks partition of his share as reflected in the revenue record, is entitled to seek partition of his share through due process of law. This led to the filing of the present revision petition.

8.Arguments heard. fhe record has been perused with the valuable assistance of the learned counsel for the parties.

9.The learned counsel for the deceased petitioner argued that the claim, as set out in the plaint and substantiated by evidence, was that Sale Mutation No.

7972, dated 21.02.1978 (E*. PW-l/l), is a fake, fictitious, and fraudulent instrument purporting to

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transfer his father, Mir Sarwar Khan's, property measuring o8-Marla to Sana UIIah Khan on the basis of registered Sale Deed No.341, dated 13'06' 1935, pertaining to a residential property at Sarai Naurang, which, in fact, was a mortgage deed executed between Charandas and Jamridas, both residents of Sarai Naurang, District Lakki Marwat, and not a sale deed or any other instrument executed by his father transferring the disputed properly at Bannu in favour of Sana Ullah Khan. It was fuither argued that the 08-Marla property 3 had been fraudulently acquired by Sana Ullah Khan and was thereafter transferred in the same manner to Umar Ali Khan through Sale Mutation No. 7973, dated 21.02.1978 (Ex.PW- ll2), in consequence whereof Umar Ali Khan came to hold a total of 18 Marla, comprising l0-Marla lawfully owned and O8-Marla fraudulently acquired in his name. Learned counsel, with considerable emphasis, contended that Umar Ali had transferred the aforesaid l8-Marla property through Sale Mutation No.

9113, dated 26.12.1985 (Ex.PW-1/DX-1), whereby 12 Marla was transfemed to Sher Dad Khan (defendant No.

16)and 6-Marla to Dilshad Begum (Defendant No. l7);

and that the said mutation, to the extent of 8-Marla, is illegal, fraudulent, and a sham transaction, and is,

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therefore, liable to be set aside/cancelled to that extent.

10.To substantiate the claim set forth in the suit, the deceased petitioner produced the Patwari Halqa, the ADK Bannu, and an official from the Registry Tehsil Office, Bannu, as witnesses, and also appeared through his son, Ghairat Khan, acting as his attorney' The attorney, examined as PW-4, deposed that when a dispute arose regarding the installation of a gate in their street, defendant No.16, Sher Dad Khan, instituted a suit 4 challenging its installation. Upon examination of the revenue record in that context, they discovered that, through three separate mutations, areas measuring 09- Marla, 0l-Marla, and 08-Marla had been transferred' He further assefted that the 08-Marla portion had been fraudulently mutated on the basis of a fake registered mortgage deed and disputed mutations, and accordingly prayed for decreeing the claim in the suit.

11.The contesting defendants, No.16 (Sher Dad Khan) and No. 17 (Dilshad Begum), denied the claim and appeared through their attorney, Sher Ghulam, who testified as DW-2. They also produced Tariq Khan, Record Clerk from the Court of the District & Sessions Judge, Bannu, who was examined as DW-l, and tendered

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in evidence the record of Civil Suit No.47l1, instituted on 25.06.1998 and decided on 21.01.2004, as well as Civil Appeal No.58/13, instituted on 20.02.2004 and decided on 19.04.2004. The stance of defendants No.16 and 17, as set out in their amended written statement, was that the suit filed by the plaintiff (the deceased petitioner) was a counterblast to the earlier suit filed by defendant No.16 titled "Sher Dad Khan v. Dilbar Khan", which had been decreed and the decree was subsequently upheld by the r Hon'ble Supreme Court. They funher raised the plea of limitation.

12.The trial court decided the issue of limitation in favour of the deceased petitioner and against the defendants, and, since it was neither challenged by way of appeal nor assailed through cross-objections, the said finding has attained finality in law.

13.The divergent pleas of the parties gave rise to three issues for determination, namely: (i) the ownership of the disputed property; (ii) the validity of registered deed No.

341, dated 13.06.1935 (Ex.PW-2ll), and the subsequent Mutation No.7972, dated 21.02.1978 (Ex. PW-l/1), as well as Mutation No.7973, dated 21.02.1978 (lix. PW- Ll2); and (iii) the subsequent purchase of the l8-Marla

disputed property, including the 08-Marla portion alleged to have been illegally and fraudulently acquired, by defendants No. 16 and 17 from umar Ali through sale Mutation No. 9113, dated 26.12.1985 (Ex' PW-1/DX-1)'

14.The first issue pertains to the ownership of the disputed property. The pleadings of the parties, supported by a cursory examination of the revenue record and the evidence adduced, establish that Mir Sarwar Khan, father 4 and predecessor-in-interest of the deceased petitioner as well as of defendants No. 20 to 27, was the owner of the disputed property. The record further shows that he validly alienated 09-Marla and 01-Marla portions of the said property through two registered sale deeds, which were duly incorporated in the revenue record via Mutation No. 7975, dated 21.02.1978, and Mutation No.7974, dated 21.02.197 8, respectively.

15.The second issue concerns the validity of registered Deed No. 341, dated 13.06.1935 (Ex. PW-zll), and the subsequent Mutation No. 7972, dated 21.02.1978 (E*. PW-1/1), as well as Mutation No. 7973, dated 21.02.1978 (Ex. PW-ll2). The record establishes that the deceased petitioner successfully proved that Sale Mutation No.7972, dated 21.02.1978 (Ex. PW-1/1), had

n been fraudulently attested on the basis of Registry No.

341, dated 13.06.1935. Mr. Raqiaz, Registry Clerk, Tehsil Office, Bannu, appeared as PW-2 and produced in evidence a deed bearing No. 341 of the year 1935, which, in fact, was a registered mortgage deed pertaining to a residential property at Sarai Naurang, District Lakki Marwat, executed on 31.05.1935 between two private individuals, namely Charandas and Jamridas. In contrast, I the defendants / contesting respondents failed to produce any sale deed or other instrument of transfer of the disputed property executed by Mir Sarwar Khan on either 13.06.1935 or 31.05.1935. Accordingly, Registry No.

341,, dated 13.06.1935, is held to be a non-existent and sham document; consequently, Mutation Nos.7972 and 7973, both dated 21.02.1978, are declared to be bogus, fraudulent, ffid of no legal effect against the rights of the deceased petitioner and his successors-in-interest.

16.The last and third issue requiring adjudication pertains to the validity of Sale Mutation No. 9113, dated 26.12.1985 (Ex. PW-llDx-l), conceming the purchase of the l8-Marla disputed property, including the 08- Marla portion alleged to have been illegally and fraudulently acquired, by defendants No. 16 and 17 from Umar Ali through the said Sale Mutation. It stands

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n established that out of the disputed 18-Marlas, only l0- Marlas were validly acquired by Umar Ali Khan' whereas the remaining o8-Marlas were fraudulently transferred to him through Mutation No. 7973.

consequently, Mutation No. 9113 dated 26.12.1985 (Ex.

pw-l/Dx-l), to the extent of the said 08-Marlas, being founded on a fraudulent transaction, is declared illegal, void, and of no legal effect against the rights of the f deceased petitioner and his successors-in-interest'

17.The trial court failed to properly appreciate the evidence on record and misconstrued the judgfnent and decree dated 2l.ol.2oo4 (Ex.DW-l/l) of the learned Civil Judge-III, Bannu, rendered in Civil Suit No'47/1, instituted on 25.06.1998, titled "sher Dad Khan v. Dilbar Khan." The said suit had been filed by Sher Dad Khan against the deceased petitioner and others for declaration, permanent injunction, ffid separation of l2-Marla out of the residential property measuring 03-Kanal l}-Marla at Kot Adil, Bannu. Nevertheless, while deciding the issue of res judicata, the trial court erroneously held that the matter stood finally resolved in the earlier proceedings and could not be re-agitated, thereby deciding the issue against the deceased petitioner.

18.A bare perusal of the judgment and decree dated 21.01.2004 (Ex.DW-1/1) of the learned Civil Judge-III, Bannu, reveals that Civil Suit No.47ll, titled "Sher Dad Khan v. Dilbar Khan," had been instituted solely for a declaration of the plaintiff s right of access through the thoroughfare and for the removal of a gate allegedly installed by the deceased petitioner in a closed street, and not for a declaration of title or ownership of the presently disputed property. The said judgment and decree was challenged in appeal, which was dismissed vide I judgment and decree dated 19.04.2024 (Ex.DW-1/6);

however, paragraph-8 of the appellate judgment makes it explicit that the controversy related to the installation of the gate in the street obstructing the plaintifls (Sher Dad's) access.

19.Undeniably, defendants No. 16 and 17 have been declared valid purchasers of a l0-Marla portion of the disputed property through Mutation No. 9113 dated 26.12.1985 (E*.PW-llDX-l), which has been held invalid only to the extent of the said 08-Marlas, while its validity to the extent of the lO-Marlas stands maintained.

In view of the foregoing, the claim raised in the earlier Civil Suit No. 4711, titled "Sher Dad Khan v. Dilbar Khan," decided on 21.01.2004 wherein the plaintiff

n sought ownership of 01-Marla thoroughfare for access to his 09-Marla validly purchased portion of the property, was in essence a suit for access rather than for a declaration of title beyond his lawful entitlement'

20.The next question requiring consideration is whether civil Suit No. 4711, titled "Sher Dad Khan v.

Dilbar Khan," decided on 2L01.2004, constitutes res judicata (as held by the trial court) or estoppel (as ruled by the appellate court). A perusal of the appellate court's judgment reveals that it disagreed with the finding of the f trial court, holding that in the earlier suit the question of title was not in issue. However, it funher held that in the previous easement suit, the appellant had admitted that Umar Ati had sold the property through Mutation No' 9113 dated 26.12.1985 to Sher Dad Khan and Mst. Dil Shad, which amounted to estoppel in the form of constructive res judicata.

21.I have examined the record, which reveals that during the pendency of Civil Suit No. 4711, titled "Sher Dad Khan v. Dilbar Khan," decided on 21.01.2004, the deceased petitioner instituted the present suit on 26.09.2003, challenging the validity of Mutation No.

7972, dated 21.02.1978 (E*. PW-l/l), Mutation No.

7973, dated 21.02.1978 (Ex. PW-ll2), and Mutation No' 9113, dated 26.12.1985 (Ex. PW-l/DX-1), asserting that he became aware of the alleged fraudulent attestation of the aforesaid mutations from the averments contained in the plaint of Sher Dad Khan's suit. At the time, when the present suit for declaration of title was instituted, Civil Suit No. 4711, titled "Sher Dad Khan v. Dilbar Khan," seeking a declaration of the right of access and removal of a gate allegedly installed by the deceased petitioner in I a closed street, was pending adjudication and was subsequently decided on 21.01.2004. Therefore, the findings recorded by the courts below on the points of res judicata and estoppel, being based on no evidence, are declared illegal, unsustainable, and are accordingly set aside.

22.Whether the findings of the appellate court, holding that the rights of Sher Dad (Defendant No. 16) and Dilshad Begum (Defendant No. 17) were protected under the law, and thereby passing a preliminary decree against the defendants No. 1 to 8 for recovery of the price of the 08-Marla property at the prevalent market rate, are sustainable in law?

23.A perusal of the averments in the written statement

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n reveals that the contesting defendants have neither raised the plea of being bona fide purchasers nor invoked the protection afforded under Section 41 of the Transfer of Property Act, 1882. Consequently, the sale transaction effected through the disputed mutation No. 9113, attested on 26.12.1985 (Ex. PW-1/DX-I), to the extent of 08- Marla in favour of defendants No. 16 and 17, being illegal and fraudulent, is not protected under Section 41 of the Transfer of Property Act, 1882.

24.So far as the passing of a preliminary decree against defendants No. I to 8 for recovery of the price of 4 the S-marla property at the prevalent market rate is concerned, suffice it to say that the appellate court was cognizant of the fact that Sana Ullah Khan, the predecessor-in-interest of defendants No. I to 8, had alienated the entire property during his lifetime and had died before the institution of the suit. Since the said property had not devolved upon the defendants, they, being merely his legal representatives under Section 50 of the Code of Civil Procedure, 1908, could not be held liable for payment of the market price of the property that had been fraudulently received by their predecessor. The aforesaid impugned findings of the appellate court, therefore, are not sustainable and are accordingly set

aside.

25.For what has been discussed above, it is held that the findings of both the learned Courts below warrant interference in the exercise of revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908.

Accordingly, the impugned judgments and decrees passed by the leamed Additional District Judge-III, Bannu, dated 27.02.2017, and the learned Civil Judge-X, 'fhe suit Bannu, dated 05.10.2015, are hereby set aside' instituted by the deceased petitioner, now represented by Ghairat Khan and others, for declaration and possession stands decreed. A preliminary decree for possession of 08-Marla is thus passed, with no order as to costs.

Announced

(Ghafoor Zaman) yq I

JUDGE

scnrvnmo

4t, ir*- (S.B.) Hon'ble Justice Muhammad 'l'ariq Afridi