Shaukat Ali etc Vs Tawani Khan & others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

C.R No.277-P/2012.

Shaukat Ali etc. Vs. Tawani Khan & others.

Date of hearing 29.09.2026.

M/s Rehman Ullah, Muhammad Taufique Qureshi & Ijaz Ahmad, Advocates, for the petitioner.

Mr. Muhammad Asif, Advocate, for the respondents.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - This single judgment shall dispose of Civil Revision No. 277-P of 2012, titled “Shaukat Ali etc. v. Tawani Khan and others”; Civil Revision No. 278-P of 2012, titled “Shaukat Ali etc. v. Rehman and others”; Civil Revision No. 714-P of 2019, titled “Shaukat Ali etc. v. Aziz Ullah etc.”; Writ Petition No. 2113-P of 2019, titled “Rehman v. Shaukat Ali etc.”; and Writ Petition No. 1136-P of 2022, titled “Rehman etc. v. Shaukat Ali and others”, as the petitions arise out of connected proceedings and involve substantially overlapping questions of law and fact concerning the nature of the parties’ rights in the disputed properties, the legal effect of the usufructuary mortgage, the alleged exchange of property, and the entitlement to possession and recovery of rent.

2.The controversy originated from Civil Suits Nos. 350/1 and 351/1 of 2006, instituted by Shaukat Ali, the petitioner in Civil Revision Nos. 277-P and 278-P of 2012 and the connected proceedings. Through these suits, he sought recovery of possession of the respective houses described in the headnotes of the plaints, situated at Peer Ghari, near Ghulamo Machine, Katlang Road, Mardan. He also claimed recovery of rent at the rate of Rs. 100 per month, initially quantified at Rs. 10,000 for the period from June 2005 to March 2006, with a further claim

for rent until realization, besides permanent injunction restraining the defendants from demolishing the structures or altering the nature of the disputed properties. The plaintiff founded his claim upon registered deed No. 222, dated 05.04.2004, and mutation No. 4368, attested on 28.05.2005, whereby the properties comprising land bearing Khasra Nos. 712 and 714, together with two constructed houses, a hujra, a Bhatti and a godown, were allegedly transferred in his favour. According to the plaintiff, the properties had been occupied by tenants who were paying rent, but, following the transfer, the defendants stopped paying rent despite service of notice, compelling him to institute the suits.

3.During the pendency of Civil Suit No. 350/1 of 2006, the legal heirs of Said Wahab and Akbar Ali applied for their impleadment as defendants. Their application was dismissed by the learned Civil Judge on 08.12.2006. However, the learned District Judge, Mardan, as he then was, allowed their revision on 23.10.2007 and directed that they be impleaded and the suit be decided on its merits. Consequently, an amended plaint was filed. The defendants contested the suits on various legal and factual grounds. Rehman Ullah, defendant No. 1 in Civil Suit No. 350/1 of 2006, disputed the validity of registered deed No. 222 and mutation No. 4368, alleging that they were fraudulent, forged and collusive. He asserted that Waleed Ahmad Khan and others had instituted proceedings for redemption of the mortgage, which had been dismissed, and that the subsequent appeals and revisions had also failed. According to him, the mortgagee had acquired ownership of the disputed property and subsequently exchanged it with Said Wahab, the predecessor-in- interest of the added defendants, who thereafter constructed buildings thereon. The added defendants advanced a similar plea, maintaining that Waleed Ahmad Khan and others were the original owners of the property, which had been mortgaged to

the predecessors-in-interest of Ikram Ullah Khan in or about 1870. According to them, the mortgage remained unredeemed, whereupon the mortgagees became owners and subsequently exchanged the property with Said Wahab. On that basis, they claimed independent proprietary rights and asserted that substantial construction had been raised on the property and that their tenants were residing therein. The defendants in Civil Suit No. 351/1 of 2006 also disputed the validity and correctness of mutation No. 4368 and resisted the plaintiff's claim on substantially similar grounds.

4.The learned trial Court, after recording evidence, decreed the plaintiff's suits to the extent of recovery of possession but dismissed the claim for recovery of rent. The defendants preferred Appeals Nos. 22/13 and 23/13 of 2011, which were allowed by the learned Additional District Judge-I, Mardan, through judgment dated 11.02.2012. Consequently, both suits were dismissed. The plaintiff has challenged the appellate judgments through Civil Revision Nos. 277-P and 278-P of 2012.

5.Subsequently, Aziz Ullah instituted Civil Suit No. 32/1 of 2019 against Shaukat Ali, seeking permanent and perpetual injunction. He relied upon the earlier litigation concerning redemption of the mortgage, particularly the dismissal of a suit instituted by Mst. Zuhra Begum, the predecessor-in-interest of the present petitioner, on 19.11.1990, on the ground of limitation under section 10 of the West Pakistan Redemption and Restitution of Mortgaged Property Act, 1964. Shaukat Ali applied for rejection of the plaint. Although the learned trial Court dismissed the application, the learned Additional District Judge, Mardan, reversed that order through judgment dated 18.04.2019 and remanded the matter for fresh decision. Aggrieved thereby, Shaukat Ali instituted Civil Revision No. 714- P of 2019.

6.Writ Petition Nos. 2113-P of 2019 and 1136-P of 2022 arise from proceedings concerning recovery of rent and ejectment instituted by Shaukat Ali against Rehman Ullah and Tawani Khan, respectively. The respective proceedings culminated in orders dated 12.04.2018 and 24.12.2019 passed by the learned Additional Assistant Commissioner, Mardan, whereby the claims of Shaukat Ali were decreed. The appeals were dismissed by the learned Additional Deputy Commissioner/Collector, Mardan, through orders dated 27.07.2018 and 18.12.2020, respectively. The respective revisions were also dismissed by the Commissioner, Mardan Division, on 03.01.2018 and 09.08.2021, followed by dismissal of the second revisions by the Members of the Board of Revenue on 21.01.2019 and 16.02.2022, respectively. The aggrieved parties have, therefore, invoked the constitutional jurisdiction of this Court through the aforesaid writ petitions.

7.Arguments have been heard and the record examined.

8.The controversy, in substance, raises the following questions:

(i)Whether the mortgagees, by virtue of their continued possession following the expiry of the stipulated mortgage period, acquired absolute ownership of the mortgaged properties;

(ii)Whether the defendants established that the disputed properties had subsequently been transferred to their predecessors-in-interest through an exchange with the mortgagees;

(iii)Whether the registered deed and mutation relied upon by Shaukat Ali were validly impeached by the defendants; and

(iv)Whether the impugned appellate judgments and orders passed in the connected proceedings are sustainable in law.

These questions are interrelated and are, therefore, examined together, while maintaining the distinction between the civil revisions and the constitutional petitions.

9.The record establishes that the properties in question were originally owned by Waleed Ahmad Khan and others and were subsequently subjected to a mortgage in favour of the predecessors-in-interest of the persons now claiming through the mortgagees. The plaintiff's case rests upon the transfer of the proprietary rights of the original owners in his favour through registered deed No. 222, dated 05.04.2004, followed by mutation No. 4368, attested on 28.05.2005. The defendants, on the other hand, claim through the mortgagees and maintain that the latter acquired absolute ownership by reason of the mortgage remaining unredeemed for the stipulated period. Their defence, therefore, depends fundamentally upon establishing that the original mortgage relationship had legally come to an end and that the mortgagees had acquired a proprietary title capable of being transferred to their predecessors-in-interest. It is significant that the defendants disputed the registered deed and mutation as fraudulent and collusive but failed to produce convincing evidence establishing the alleged fraud or forgery. A plea of fraud, particularly when directed against a registered instrument and the consequential revenue entry, cannot be accepted merely because the instrument is disputed in the written statement. The party alleging fraud must substantiate the allegation through cogent and legally admissible evidence. No such evidence has been identified in the record. Nevertheless, the question of the legal status of the original mortgagees must be determined independently, because the defendants' claim to ownership through the alleged exchange cannot succeed unless the mortgagees had acquired a transferable proprietary title.

10.Section 58(d) of the Transfer of Property Act, 1882, defines a usufructuary mortgage as a transaction in which the mortgagor delivers, or undertakes to deliver, possession of the mortgaged property to the mortgagee, authorizes the mortgagee to retain possession until payment of the mortgage money, and permits the mortgagee to receive the rents and profits of the property in appropriation of the interest or mortgage debt, wholly or partly. The essential characteristic of such a mortgage is that the mortgagee receives possession and enjoys the usufruct in accordance with the terms of the transaction, while the proprietary title remains with the mortgagor, subject to the mortgage security. Unlike a mortgage by conditional sale, a usufructuary mortgage does not, merely by its nature, confer upon the mortgagee an automatic right of foreclosure or absolute ownership. Accordingly, the expiry of the stipulated period does not, by itself, establish that the mortgagee has become the absolute owner. The legal consequences must be determined in accordance with the nature of the mortgage, the applicable statutory provisions and the governing judicial pronouncements. Unless the mortgagee establishes a legally recognized mode by which the mortgagor's proprietary rights and right of redemption have been extinguished, possession referable to the mortgage cannot, merely through the passage of time, be treated as conclusive proof of ownership.

11.The question of acquisition of ownership through adverse possession must also be considered in the light of the judgment of the august Supreme Court of Pakistan in Maqbool Ahmad v. Hakoomat-e-Pakistan (1991 SCMR 2063). In that judgment, the Shariat Appellate Bench examined the compatibility of section 28 of the Limitation Act, 1908, with the injunctions of Islam and declared the provision repugnant thereto, directing that the declaration would take effect from 31.08.1991. The Court distinguished the provision extinguishing proprietary rights

through lapse of time from the ordinary provisions prescribing limitation for institution of suits. The material principle emerging from the judgment is that the mere passage of time cannot, on the strength of section 28 of the Limitation Act, 1908, extinguish the ownership of the rightful owner and automatically vest title in a person in possession. The judgment must, however, be applied according to its declared scope and effective date, together with the statutory provisions governing the particular transaction. In the present controversy, the defendants' claim does not rest upon an independently established conveyance from the original owners. Rather, it rests upon the assertion that the mortgagees became owners by lapse of time and thereafter exchanged the property with Said Wahab. Thus, unless the mortgagees acquired a legally sustainable proprietary title, the alleged subsequent transfer cannot independently establish ownership in favour of the defendants. The record further shows that the original owners had earlier pursued proceedings for restitution of the mortgaged property. Their claim was dismissed, and Writ Petition No. 1032 of 1994 was dismissed in limine on 15.11.1994. The earlier writ petition, however, did not result in an adjudication affirming the defendants' asserted ownership through exchange. The scope and effect of that decision must be confined to the matters actually determined therein.

12.The principles governing usufructuary mortgages have also been discussed in Muhammad Hayat and others v. Muhammad Zaman and others (2023 MLD 1502), Farid Khan v. Fazla Qadir and 52 others (PLD 2019 Peshawar 171), Durrani and 35 others v. Hamidullah Khan and 15 others (2007 SCMR 480), and Ahmad Khan and others v. Abdur Rehman and others (2009 SCMR 191). The principles set out in the cases shall determine the context of the particular mortgage, the relevant limitation provisions and the relief sought in each case. The defendants have relied upon Article 148 of the Limitation Act,

1908, which was applicable during the earlier proceedings. However, the Khyber Pakhtunkhwa Limitation (Amendment) Act, 2016, omitted Article 148 with effect from 19.08.2016. The applicability of the earlier provision to the parties' accrued rights and the pending proceedings must be determined with reference to the relevant dates and the governing law. The decisive question here is not merely whether the defendants or their predecessors remained in possession for a prolonged period. It is whether such possession, originating in a usufructuary mortgage, was lawfully converted into absolute ownership. In the absence of proof of such conversion, the plea of ownership cannot be sustained solely on the basis of the passage of time.

13.The doctrine of the equity of redemption is founded upon the principle that a mortgage remains a mortgage unless the relationship is lawfully brought to an end. The right of redemption is an incident of the mortgagor's proprietary interest and cannot ordinarily be defeated by a condition or course of conduct that has no legal effect of extinguishing that right. The continued enjoyment of rents, produce or profits by a usufructuary mortgagee is relevant to the nature of the possession and the subsistence of the mortgage relationship. In Abdul Haq v. Ali Akbar and others (1999 SCMR 2531), the august Supreme Court of Pakistan considered the legal effect of the mortgagee's continued receipt of the produce and profits of the mortgaged property in the context of section 20(2) of the Limitation Act, 1908. The principle relied upon in that judgment must be applied to the facts proved in the present case, including the nature of the mortgage and the manner in which its usufruct was appropriated. The defendants have not established that their predecessors-in-interest obtained an independent title through a lawful foreclosure, sale or other legally recognized mode of conversion of the mortgage into absolute ownership. Nor have they established any subsequent conveyance from the original

owners capable of displacing the plaintiff's title. Their continued possession, therefore, cannot, without more, be treated as proof of ownership.

14.The next question is whether the mortgagees exchanged the disputed properties with Said Wahab, the predecessor-in- interest of the added defendants, and whether the defendants thereby acquired a valid title. The burden of proving the alleged exchange rested upon the defendants, as it was an affirmative plea upon which their defence depended. It was incumbent upon them to establish the factum of exchange, identify the properties exchanged, disclose the circumstances in which the transaction took place and demonstrate that the persons who purported to transfer the disputed properties possessed a legally transferable title. The earlier proceedings do not establish the alleged exchange as a concluded fact. In Writ Petition No. 1032 of 1994, the Court observed, in substance, that an exchange of mortgagee rights was inconceivable and noted that the mortgagees arrayed as respondents Nos. 1 to 6 were in possession of the suit land, whereas respondents Nos. 7 to 10, impleaded pursuant to an order of the Court, had no concern with the suit land. The petition was dismissed in limine. The observations in that order cannot be enlarged into a final adjudication of every factual question concerning the alleged exchange. Equally, however, the dismissal of the writ petition cannot be treated as recognition or affirmation of the defendants' title. The defendants were still required to establish their independent defence through legally admissible evidence in the present proceedings.

15.The evidence of the Halqa Patwari, who appeared as DW-1, is particularly relevant. He produced an extract from the Jamabandi relating to Khasra Nos. 712 and 714 as Ex. DW-1/1 and the relevant document concerning the constructed property

as Ex. DW-1/2. During cross-examination, completed on 20.12.2010, he stated that, according to the revenue record, the plaintiff was recorded as owner of the disputed property. During re-cross-examination, he further stated that Said Wahab and others were not recorded as owners in the cultivation column of the disputed property, although they were described as Mahazi Malikan in relation to adjacent land. The distinction is material. The disputed property comprises Khasra Nos. 712 and 714, whereas the adjacent land referred to in the evidence is Khasra No. 710. The description Mahazi Malikan in relation to adjacent property does not, without further evidence of the applicable custom, revenue entries and the precise property concerned, establish ownership of the disputed land. Nor can an entry concerning one Khasra number be extended to another merely because the properties are adjacent. The Patwari's evidence, therefore, does not substantiate the alleged exchange or establish that Said Wahab and his successors acquired ownership of the disputed houses and land. On the contrary, the evidence relied upon by the defendants does not displace the recorded ownership of the plaintiff.

16.The defendants also failed to establish when the alleged exchange took place, which property was transferred in return, what rights were exchanged, or how the mortgagees acquired an absolute title that enabled them to convey the disputed properties to Said Wahab. These are not peripheral omissions. They go to the root of the defence. An exchange cannot be presumed merely from the fact that a person entered into possession or subsequently raised construction upon the property. The legal character of possession and the title under which it is held must be established through evidence. In the absence of proof of the transaction and the transferor's title, the alleged exchange cannot defeat the proprietary rights of the original owners or those claiming through a legally established

transfer from them. Consequently, the defendants have failed to discharge the burden of proving their plea of exchange. Their claim to ownership through Said Wahab, founded upon the alleged conversion of the mortgagees' possessory rights into absolute title, is not sustainable on the evidence available on record. Reliance may be made in the case titled “Pioa Shah Vs. Amin Khan and others” (2025 SCMR 1018).

17.The controversy in Civil Revision No. 714-P of 2019 concerns Civil Suit No. 32/1 of 2019, instituted by Aziz Ullah against Shaukat Ali, seeking permanent and perpetual injunction. The learned trial Court dismissed the application for rejection of the plaint, whereas the learned Additional District Judge, Mardan, through order dated 18.04.2019, allowed the appeal and remanded the matter for fresh decision. The question is whether the plaint, read as a whole, disclosed a legally sustainable cause of action for the relief claimed and whether the learned appellate Court correctly applied the principles governing rejection of a plaint. The record indicates that the plaintiff had previously instituted Civil Suit No. 519/1 of 2004 for declaration, which was dismissed on 19.06.2009. It also shows that the legal heirs of Said Wahab had earlier instituted a suit seeking declaration of ownership on the basis of the alleged exchange and challenging the decree in Civil Suit No. 2/13, decided on 19.04.1984, as fraudulent, collusive and inoperative against their rights. That suit was dismissed on 31.03.1987 by the learned Additional Civil Judge-I, Mardan. These previous proceedings are material to the extent of the claims actually adjudicated and the legal consequences arising therefrom. The mere existence of earlier litigation does not, in every case, justify rejection of a subsequent plaint; the Court must examine the plaint as a whole, the nature of the relief sought, the previous adjudications and the applicable statutory provisions. The learned appellate Court relied upon the order passed in Writ

Petition No. 1032 of 1994, dated 15.11.1994, and remanded the matter for fresh decision. However, the earlier writ petition did not establish the plaintiff's asserted title through exchange, nor did its dismissal in limine amount to a declaration that the mortgagees had become absolute owners of the disputed properties. The plaintiff's claim in Civil Suit No. 32/1 of 2019 must be examined in the context of the earlier litigation and the legal status of the parties. The relief of injunction cannot be used to obtain, indirectly, a declaration or recognition of proprietary rights that have not been established in accordance with law. Nor can an injunction be granted to prevent a party or public authority from pursuing a remedy or discharging a statutory function in accordance with law, merely because such action may be adverse to the plaintiff's asserted interest. In Raja Ali Shan v. Messrs Essem Hotel Limited and others (2007 SCMR 741), the august Supreme Court of Pakistan considered the principles governing rejection of a plaint. The ratio must be applied by examining the averments in the plaint and the legal bar, if any, apparent therefrom, rather than by deciding disputed questions of fact at the threshold. In the present case, the plaintiff's asserted entitlement to restrain Shaukat Ali from pursuing his lawful remedies rests upon a claim of ownership through the alleged exchange. As discussed above, the alleged exchange has not been established, and the earlier litigation does not confer upon the plaintiff an independent proprietary right capable of sustaining the injunction sought. The plaint, read in the context of the previous adjudications and the relief claimed, does not furnish a sustainable basis for restraining the defendant from pursuing remedies available to him under the law. The learned appellate Court, therefore, erred in setting aside the order of the learned trial Court and remanding the matter without properly addressing the legal effect of the earlier proceedings and the nature of the relief sought. Its order dated 18.04.2019 is liable to

be set aside. Consequently, Civil Revision No. 714-P of 2019 is allowed, the impugned order dated 18.04.2019 is set aside, and the order of the learned trial Court dismissing the application for rejection of the plaint is restored only if, upon verification of the original record, that is indeed the order challenged and the relief legally warranted. The consequential fate of Civil Suit No. 32/1 of 2019 shall be recorded consistently with the operative order actually passed by the learned trial Court and the applicable provisions of the Code of Civil Procedure.

18.The connected Writ Petition Nos. 2113-P of 2019 and 1136-P of 2022 arise from proceedings for recovery of rent and ejectment, which culminated in orders passed by the revenue authorities in favour of Shaukat Ali. The petitioners have challenged the concurrent orders of the Additional Assistant Commissioner, Additional Deputy Commissioner/Collector, Commissioner and Members of the Board of Revenue. The scope of constitutional review is distinct from the revisional jurisdiction exercised in the civil revisions. This Court is not required to reassess the entire evidence as if sitting in appeal over the revenue authorities. Interference is warranted only where the impugned orders disclose an error of law, lack of jurisdiction, material procedural irregularity, perversity or a violation of the principles of natural justice. The petitioners have not identified any jurisdictional defect or material legal infirmity sufficient to warrant interference with the concurrent orders passed by the revenue authorities. The fact that the parties are also litigating over title and possession in the civil proceedings does not, by itself, render the orders in the rent and ejectment proceedings unlawful. Their validity must be examined within the applicable statutory framework and on the grounds specifically raised in the writ petitions. In the absence of a demonstrated constitutional or jurisdictional infirmity, the concurrent orders challenged in the writ petitions do not call for interference in the exercise of

constitutional jurisdiction. The writ petitions are, therefore, liable to dismissal.

19.For the foregoing reasons, Civil Revision Nos. 277-P and 278-P of 2012 are allowed. The judgments and decrees dated 11.02.2012 passed by the learned Additional District Judge-I, Mardan, are set aside, and the judgments and decrees passed by the learned trial Court in Civil Suit Nos. 350/1 and 351/1 of 2006 are restored to the extent of the relief granted therein.

20.Civil Revision No. 714-P of 2019 is allowed, and the impugned order dated 18.04.2019 passed by the learned Additional District Judge, Mardan, is set aside. The consequential order regarding Civil Suit No. 32/1 of 2019 shall be in accordance with the verified trial Court order and the applicable provisions of law.

21.Writ Petition Nos. 2113-P of 2019 and 1136-P of 2022 are dismissed, as no sufficient ground has been made out for interference with the concurrent orders passed by the revenue authorities. The parties shall bear their own costs. A copy of this judgment shall be transmitted to the concerned authorities for information and compliance, where required.

Announced.

J UD G E

Abdul Wahid, JSS (SB) Hon’ble Mr. Justice Muhammad Naeem Anwar.