Shahzada Ihsanuddin & others Vs Shahzeda Salahuddin & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

C.R No. 318-M/2019 With C.Ms 898-M/2018 and 1032/2026

Shahzada Ihsanuddin and others V. Shahzada Salahuddin and others Present:

M/S Fazal Maula and Zegar Sher, Advocates for petitioners.

Mr. Abdul Halim and Shams-ul-Islam, Advocates for respondents.

Mr. Ahmad Ali, Yousafzai, Advocate for applicants in C.M No. 1032-M/2026.

Date of hearing: 27.07.2026

Date of announcement: 31.07.2026

JUDGME NT

QAZI JAWAD EHSANULLAH, J.- Through the instant civil revision, the petitioners have called in question the judgment and decree dated 13.04.2019, passed by the learned Additional District Judge/Izafi Zilla Qazi, Chitral, Camp Court Drosh, whereby their appeal was dismissed and the judgment and decree dated 28.02.2018, rendered by the learned Civil Judge-II/Ilaqa Qazi, Drosh, was maintained.

2.Briefly stated, the parties trace their descent from Shahzada Ghazi Uddin, who was survived by three sons, namely; Shahzada Siraj Uddin (predecessor-in-interest of the respondents/plaintiffs), Shahzada Nasir Uddin (predecessor- in-interest of the petitioners/defendants) and Fakhr Uddin. It Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

remained undisputed that Fakhr Uddin died issueless and that the estate left by Shahzada Ghazi Uddin was privately partitioned between his surviving sons, Shahzada Siraj Uddin and Shahzada Nasir Uddin, as far back as in the year 1948.

Subsequently, disputes arose between the two brothers regarding the family partition, leading them to institute litigation against each other.

3.The record further shows that on 04.02.1996, the two brothers arrived at a settlement, which was reduced into writing in the form of an agreement/affidavit (Ex.PW-1/19)1.

Under its operative terms, they agreed to withdraw the litigation instituted against each other and further undertook to resolve, through arbitration/Jirga, the dispute relating to the use/occupation of land by Badshah Jan for services, stated to be their tenant, as well as the matter concerning one Haji Azeem.

4.Side by side, Badshah Jan had initiated litigation claiming title to the land/property in his occupation, statedly measuring 27 Chakorum. The litigation ultimately culminated in his favour before the Supreme Court of Pakistan vide judgment dated 09.12.1992 in Civil Appeal No.192-P/199202.

Shahzada Siraj Uddin and Shahzada Nasir Uddin sought Page 96 of the revision file

Page 52 of the revision file (reported in 1993 SCMR 1444) Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

review of the said judgment, but their review petition was dismissed by the Supreme Court on 20.03.19963.

5.Pursuant to the aforesaid decree, Badshah Jan initiated execution proceedings. The two brothers initially resisted the execution through an objection petition (Ex.PW- 1/10)4, which was dismissed, whereafter Badshah Jan was delivered possession of the entire decretal property measuring 27 Chakorum situated in Mouza Nagar5. Thereafter, on 30.08.1997, LRs of Shahzada Siraj Uddin

(respondents/plaintiffs) filed an objection petition before the learned Senior Civil Judge/A’ala Ilaqa Qazi6, seeking restitution of the said property. Their case inter alia was that the liability arising out of the decree ought to have been borne equally by the two brothers and, therefore, only 131⁄2 Chakorum should have been retrieved from the share of their predecessor Shahzada Siraj Uddin instead of the entire 27 Chakorum.

6.The objection petition was initially allowed by the executing Court vide order dated 13.11.1997. On appeal, however, the learned District Judge, Chitral, vide order dated 04.08.1998, set aside that order and remanded the matter to Page 73 of the revision file

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the executing Court with a direction to first determine the question of jurisdiction and, if answered in the affirmative, to decide the objection petition after recording pro and contra evidence on the issues framed. The revisional challenge to the remand order before this Court was dismissed. Subsequently, the executing Court vide order dated 09.05.2002 held that it possessed jurisdiction to entertain the objection petition. The appeal against that order was dismissed on 07.08.2003, whereas a further revision before this Court succeeded vide order dated 11.04.2011, whereby the matter was again remanded to the executing Court for decision in the light of the observations contained in the order dated 04.08.1998 of the learned District Judge as well as those made by this Court7.

7.In the post-remand proceedings, the learned Senior Civil Judge/executing Court framed three additional issues and, after recording evidence of the parties, dismissed the objection petition vide judgment dated 19.08.20118. The executing Court inter alia observed that the objections raised by the objectors had earlier been agitated before the Supreme Court in review proceedings but had not found favour and, therefore, could not be reopened in execution. The objections Page 105, paragraph 4 of judgment dated 19.08.2011 of the executing Court Page 104 of the revision file Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

were also held to be barred by time; however, the objectors were left at liberty to seek partition of the estate inherited by the two brothers from their predecessor through the proper forum. By that time Shahzada Siraj Uddin had died and the proceedings were pursued by his legal representatives, the present respondents. Their appeal against the said judgment was subsequently dismissed by the learned Additional District Judge, Chitral, vide judgment dated 30.11.20139.

8.Thereafter, the respondents, being LRs of Shahzada Siraj Uddin, instituted the suit giving rise to the present revision seeking, in substance, a declaration that the entire 27 Chakorum ought not to have been retrieved from the share of Shahzada Siraj Uddin in execution of the decree in favour of Badshah Jan; rather, his liability extended only to 131⁄2 Chakorum. They accordingly sought possession of the land retrieved from his share in excess thereof, besides consequential reliefs. In support of their claim, the respondents/plaintiffs mainly relied upon the settlement/ agreement/affidavit dated 04.02.1996 (Ex.PW-1/19) and pleaded in paragraph 7 of the plaint that Shahzada Nasir Uddin, predecessor of the petitioners/defendants, had undertaken that both brothers would bear their proportionate Page 113 of the revision file Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

shares towards satisfaction of the decree relating to 27 Chakorum of land in Mouza Nagar.

9.The petitioners, being legal representatives of Shahzada Nasir Uddin, contested the suit. Their stance inter alia was that the estate left by the common predecessor had long been partitioned and that, under the various decisions rendered by different forums, including the Mehtar of Chitral, the estate had not been divided equally; rather, valuable properties, including the historical fort at Mouza Nagar, had fallen to the share of Shahzada Siraj Uddin which, according to them, was being used as a hotel and yielding substantial income to the plaintiffs.

10.From the divergent pleadings, issues were framed and evidence of the parties was recorded. The learned trial Court accepted the respondents’ plea regarding the effect of the agreement/statement/affidavit dated 04.02.1996 (Ex.PW- 1/19), particularly their assertion that Shahzada Nasir Uddin had conceded to the claim set up by Shahzada Siraj Uddin, and consequently decreed the suit vide judgment and decree dated 28.02.2018. The petitioners carried the matter in appeal, but the learned Additional District Judge/Izafi Zilla Qazi, Chitral, Camp Court Drosh, dismissed the same vide judgment and decree dated 13.04.2019, maintaining the Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

judgment and decree of the trial Court; hence the instant civil revision.

11.Arguments heard and record perused.

12.The controversy, when viewed in the backdrop of the prolonged litigation between the parties, mainly turns upon the legality of reopening, through the present suit, a question relating to the manner in which the decree in favour of Badshah Jan for restoration of 27 Chakorum of land in Mouza Nagar had been executed and satisfied. The decree emanated from the judgment of the Supreme Court in Civil Appeal No.192-P of 1990, heard on 09.12.1992 and announced on 13.03.1993, whereby possession of the land in dispute was ordered to be restored to Badshah Jan and others as proprietors. Shahzada Siraj Uddin and Shahzada Nasir Uddin thereafter jointly sought review of that judgment through Civil Review Petition No.111 of 1993, but the review petition was dismissed on 20.03.1996. A perusal of the grounds of review available on the record does not disclose any plea that the decretal liability of 27 Chakorum was to be borne by the two brothers in equal shares. Likewise, the settlement/agreement dated 04.02.1996 (Ex.PW-1/19) was not made the basis of the review proceedings before the Supreme Court.

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

13.The record further shows that, during execution, Shahzada Siraj Uddin and Shahzada Nasir Uddin filed an objection petition against the execution proceedings, primarily asserting that the decree was incapable of execution because the suit property had not been sufficiently identified through boundaries or demarcation. The said objection petition does not contain the plea now forming the foundation of the respondents' suit namely, that only 131⁄2 Chakorum could be taken from the share of Shahzada Siraj Uddin and the remaining half was necessarily to be retrieved from Shahzada Nasir Uddin. Thus, the record does show that such a contention had surfaced during the execution proceedings, though not in the earlier objection petition in the form in which the present suit was subsequently framed.

14.The matter did not rest there. LRs of Shahzada Siraj Uddin (respondents/plaintiffs) subsequently instituted the objection proceedings dated 30.08.1997, questioning retrieval of the entire decretal property from his share and claiming, in substance, that his liability could not extend beyond one-half thereof. After successive remands and challenges, the learned executing Court, in the post-remand proceedings, framed additional issues and recorded pro and contra evidence. The objection petition was eventually dismissed vide judgment dated 19.08.2011. The record of that judgment shows that the executing Court examined inter alia Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

whether delivery of possession in execution was lawful, whether objections could be entertained after execution of the decree, and whether such objections were barred by limitation. The appeal preferred against that adjudication was also dismissed by the learned Additional District Judge, Chitral, on 30.11.2013. No further challenge against that judgment has been shown from the record and, therefore, the adjudication attained finality between the parties.

15.This aspect assumes decisive legal significance in view of section 47, C.P.C. Subsection (1) commands that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the executing Court and not by a separate suit.

Subsection (2) further authorizes the Court, subject to limitation and jurisdiction, to treat a proceeding under section 47 as a suit or a suit as such proceeding. In Riaz Hussain and others v. Muhammad Akbar and others10, the Supreme Court held that the scope of section 47 is wide and that an objection petition thereunder is akin to a suit; questions relating to execution, discharge or satisfaction are to be resolved in execution proceedings rather than through independent litigation. The same principle had earlier been recognized in

2003 SCMR 181

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Haji Abdul Wali Khan v. Muhammad Hanif 11, namely that the executing Court is empowered to determine questions concerning execution, discharge and satisfaction so as to avoid unnecessary fresh proceedings.

16.The present respondents are the legal heirs of Shahzada Siraj Uddin, whereas the petitioners represent Shahzada Nasir Uddin, both of whom were parties to the litigation culminating in the decree under execution. The question whether the entire 27 Chakorum could be retrieved from the share of one brother or whether its burden was to be apportioned equally between the two is, in its true character, a question directly touching the execution and satisfaction of that decree. More importantly, that very grievance had already travelled through the executing Court and the appellate Court and stood finally adjudicated. A second and independent suit seeking substantially the same result was, therefore, hit not only by the express bar contained in section 47, C.P.C, but also by the principle of finality of adjudication. In Trading Corporation of Pakistan v. Dewan Sugar Mills Limited and others12, the Supreme Court disapproved successive proceedings founded substantially upon the same facts and grounds and applied the doctrines of election, res judicata and constructive res judicata to prevent repeated recourse to

1991 SCMR 2457

PLD 2018 SC 828

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

different remedies against an already adjudicated controversy.

Likewise, in Mazhar Saeed Qureshi v. Government of the Punjab through Secretary, Irrigation and Power Department, Lahore and 49 others13, the Supreme Court held that a ground which might and ought to have been taken in the former proceedings cannot subsequently be made the basis for reopening the controversy.

17.Learned counsel for the respondents has

attempted to overcome this legal impediment by referring to the observation contained in the judgment dated 19.08.2011 whereby the objectors were left at liberty to approach the appropriate forum. This submission, however, proceeds on an incorrect reading of that judgment. The liberty so reserved was in relation to seeking partition of the estate inherited by the two brothers from their common predecessor; it did not confer a right to institute another suit for re-adjudication of the very objection concerning the extent to which the executed decree was to operate against the share of Shahzada Siraj Uddin. A leave to seek partition of the estate cannot be enlarged into permission to reopen an adjudication concerning execution and satisfaction of an already executed decree, particularly when the appeal against dismissal of the objection petition had also failed and attained finality.

1986 SCMR 12

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

18.This distinction is important for another reason.

The case consistently pleaded by the respondents is that, because the entire 27 Chakorum were retrieved from the property held by their predecessor Shahzada Siraj Uddin, his branch was left with a lesser share in the ancestral estate. If their grievance was that the earlier private/family partition had, because of subsequent events, resulted in an inequitable distribution of the residue of the estate, the remedy reserved in the earlier proceedings was to seek a formal partition of the estate and establish the respective shares of the successors therein. The present suit, however, was not framed as such a partition action; instead, it sought to undo inter se the consequence of execution of the decree by treating one-half of the decretal land as the liability of Shahzada Nasir Uddin.

That relief directly traversed the field already occupied by section 47, C.P.C. and the earlier final adjudication.

19.Even independently of the above bar, the reasoning adopted by the two Courts below with respect to the agreement/settlement dated 04.02.1996 (Ex.PW-1/19)14 does not withstand scrutiny. Clause 2 thereof speaks of resolution, through arbitration, of the dispute concerning the use/occupation of land by the stated tenant Badshah Jan/Badshah Khan and Haji Azim and, in case of failure of that effort, of convening a Jirga whose verdict would bind the Page 96 of the revision file Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

parties. Significantly, the document does not state that the decree of 27 Chakorum in favour of Badshah Jan was to be satisfied equally by the two brothers, nor does it specify that each brother had undertaken liability to the extent of 131⁄2 Chakorum. The conclusion drawn by the Courts below that Shahzada Nasir Uddin had thereby conceded an equal division of the decretal burden is, therefore, not supported by the text of Ex.PW-1/19 itself.

20.Indeed, clause 2 of Ex.PW-1/19, insofar as it provides in writing for submission of the specified dispute to arbitration, answers the statutory description of an “arbitration agreement” under section 2(a) of the Arbitration Act, 1940, which means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not. The Supreme Court in Messrs Parks Pakistan (Pvt.) Ltd. through Managing Director v. Privatization Commission15 reiterated this statutory test. Subject to limitation, the statutory machinery for securing a reference was available under sections 8 and 20 of the Act. Moreover, in M. Imam-ud-Din Janjua v. The Thal Development Authority through the Chairman, T.D.A., Jauharabad16, the Supreme Court held that an application under section 20 is governed by Article 181 of the Limitation Act, 1908 and that

2009 SCMR 838

PLD 1972 SC 123

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

the right to apply accrues when the dispute arises. The record before this Court does not show that either Shahzada Siraj Uddin or his successors invoked that statutory mechanism for obtaining adjudication through arbitration/ Jirga pursuant to Ex.PW-1/19. What could not legitimately be extracted from the express terms of that document has, therefore, been supplied by implication by the Courts below.

21.Consequently, the concurrent conclusion that Ex.PW-1/19 embodied an admission or undertaking by Shahzada Nasir Uddin to bear one-half of the 27 Chakorum decreed in favour of Badshah Jan rests upon a material misreading of the document. Concurrent findings ordinarily command restraint in revisional jurisdiction; nevertheless, where such findings are founded upon misreading or non- reading of material evidence or result in the exercise of jurisdiction contrary to an express statutory bar, interference under section 115, C.P.C. becomes warranted. Here, the Courts below not only attributed to Ex.PW-1/19 a stipulation which it does not contain, but also entertained a separate suit over a matter relating to execution and satisfaction of a decree which had already been adjudicated in proceedings under section 47, C.P.C.

22.For the foregoing reasons, the instant civil revision is allowed. The judgment and decree dated 13.04.2019 passed by the learned Additional District Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Judge/Izafi Zilla Qazi, Chitral, Camp Court Drosh, as well as the judgment and decree dated 28.02.2018 passed by the learned Civil Judge-II/Ilaqa Qazi, Drosh, are set aside.

Consequently, the suit instituted by the respondents/plaintiffs stands dismissed, with no order as to costs. C.M No. 898- M/2019 for temporary injunction is dismissed for having become infructuous.

23.Before parting with this judgment, it would be appropriate to dispose of C.M. No.1032-M/2026, whereby the applicants, stated to be the sons of Mst. Nasira Begum daughter of Shahzada Nasir Uddin, seek their impleadment as parties to the present proceedings. The revision petition has remained pending before this Court since May, 2019, yet the applicants did not seek their impleadment until the matter had reached the final stage of arguments. More importantly, the controversy between the respective branches of Shahzada Siraj Uddin and Shahzada Nasir Uddin has travelled through successive rounds of litigation before different fora, including the Supreme Court of Pakistan, spanning several decades;

however, nothing has been pointed out from the record to show that either the applicants or their mother had, at any earlier stage, sought their impleadment or asserted the necessity of their presence for adjudication of the controversy.

The belated application, therefore, appears to be an afterthought and, at this advanced stage, its acceptance would Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

only have the effect of unnecessarily prolonging an already protracted litigation. Even otherwise, the controversy involved in the present revision has been looked into and determined by this Court as a whole on the basis of the legality of the impugned judgments and the material already forming part of the record, without undertaking any determination or apportionment of the individual proprietary interests of the parties or their successors. The presence of the applicants is, therefore, neither necessary for an effective and complete adjudication of the revision nor would their impleadment serve any useful purpose. On the contrary, permitting their entry into the proceedings at this stage would reopen and give a new lease of life to litigation which has remained pending between the respective branches of the family for decades. Consequently, C.M. No.1032-M/2025, being misconceived and superfluous, is dismissed.

Announced Dt:31.07.2026 -Sd-

JUDGE

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah