Mst. Bibi Khateeb-un-Nisa Vs Abdul Rasheed.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department) C. R No. 451-A/2026

Mst. Bibi Khateeb-un-Nisa (Petitioner/s)

VS

Abdul Rasheed.

(Respondent/s)

Present: Mr. Fiaz Muhammad Tanoli, Advocate.

Date of hearing: 26.10.2026

JUDGMENT

ABDUL FAYAZ, J.- Through the instant civil revision petition, filed under Section 115 of the Code of Civil Procedure, 1908, the petitioners have called in question the legality and propriety of the consolidated judgment and decree dated 29.06.2026, passed by the learned Additional District Judge-II, Mansehra, whereby Civil Appeal Nos.126/13 and 130/13 of 2025, preferred by the petitioners, were dismissed and the judgment and decree dated 21.02.2025, rendered by the learned Civil Judge-VI, Mansehra, dismissing their suit for declaration and perpetual injunction, were maintained.

2.Briefly stated, the facts giving rise to the instant revision petition are that petitioner No.1, Mst.

Bibi Khateeb-un-Nisa, instituted a suit for declaration and perpetual injunction, challenging the legality and validity of Mutation No.1229 dated 09.05.1991, whereby the suit property was transferred in favour of respondent No.1, Abdul Rasheed. The petitioners alleged that the disputed mutation had been procured through fraud, misrepresentation and collusion with the revenue officials, without any lawful sale transaction or payment of consideration. It was further asserted that the alleged vendors had neither appeared before the competent Revenue Officer nor affixed their thumb impressions in acknowledgment of the purported transaction. The respondents contested the suit by filing written statements, denying the allegations of fraud and asserting that respondent No.1 had lawfully purchased the property against valuable consideration and had remained in possession thereof since the year 1991. From the divergent pleadings, the learned trial Court framed the necessary issues and, after recording the evidence produced by the parties and hearing their arguments, dismissed the suit vide

judgment and decree dated 21.02.2025. Feeling aggrieved, the petitioners preferred separate appeals, which were consolidated and dismissed by the learned appellate Court through the impugned judgment and decree dated 29.06.2026. Hence, the instant revision petition.

3.Arguments in motion heard and available record gone through.

4.Perusal of the record reveals that the entire claim of the petitioners revolves around the allegation that Mutation No.1229 dated 09.05.1991 was fraudulently procured in favour of respondent No.1. It is equally evident that the petitioners, being the persons seeking a declaration against an existing revenue transaction, were required to substantiate their allegations through affirmative, reliable and convincing evidence. Fraud is a serious allegation, which cannot be presumed merely on the basis of suspicion, conjecture or general assertions. The party alleging fraud must specifically plead its material particulars and establish the same through cogent evidence. In the instant case, the petitioners have failed to point out any material evidence which was

overlooked by the Courts below and which, if properly considered, would necessarily establish that the disputed mutation was the result of fraud or collusion.

5.The record demonstrates that petitioner No.1, Mst. Bibi Khateeb-un-Nisa, who was herself an alleged vendor and the principal person competent to deny the execution of the transaction and the affixation of her thumb impression, did not enter the witness-box to substantiate her allegations. Her personal testimony was of considerable importance because the controversy directly concerned her alleged appearance before the Revenue Officer, the acknowledgment of the sale transaction and the authenticity of her thumb impression on the disputed mutation. Although an explanation was offered regarding her advanced age and impaired hearing, the record does not disclose any satisfactory medical evidence establishing that she was incapable of recording her statement before the Court or through a legally permissible arrangement. On the contrary, her son, Qazi Faseeh-ud-Din, appearing as PW-04, admitted during cross-examination that his mother was in good health, while no medical evidence was produced to establish her alleged incapacity.

6.The evidence produced by the

respondents, on the other hand, provides substantial support to the genuineness of the disputed transaction.

Respondent No.1, Abdul Rasheed, maintained that he had purchased the suit property against sale consideration amounting to Rs.80,000/- and had been in possession thereof since the year 1991. The record further reveals that Faridoon Khan, the real brother of the vendor ladies, appeared as DW-02 and supported the sale transaction. He specifically testified that the vendor ladies had sold the suit property, received the sale consideration and recorded their confirmatory statements before the Revenue Officer through commission at his Bethak situated in Mouza Gandhian.

Similarly, Muhammad Aslam, another attesting witness, appeared as DW-03 and corroborated the material particulars of the transaction, including the recording of the vendors' statements before the Revenue Officer and the acknowledgment of the sale consideration. The statements of these witnesses were considered by the Courts below, and no material contradiction capable of discrediting the transaction has been established. The mere non-production of the

concerned revenue officials, who, according to the record, had passed away, does not automatically render the mutation invalid when the transaction is otherwise supported by the testimony of the attesting witnesses and surrounding circumstances.

7.Another significant aspect of the case is the admitted, long-standing possession of respondent No.1 over the disputed property. Muhammad Khalid, attorney for petitioner No.1, appearing as PW-01, admitted during cross-examination that respondent No.1 had remained in possession of the suit property since 1991. Likewise, Javed Iqbal, appearing as PW- 03, acknowledged the long-standing possession of respondent No.1. These admissions are of considerable evidentiary value, particularly when examined in conjunction with the disputed sale mutation and the testimony of the attesting witnesses. The petitioners have not satisfactorily explained why the alleged vendors or their successors remained silent for such a prolonged period despite the respondent's open and continuous possession. Although possession alone does not confer ownership, its continuity for several decades constitutes an important corroborative

circumstance in determining the genuineness of the transaction and the credibility of the competing claims.

8.The question of limitation constitutes an additional and independent ground against the petitioners. The disputed mutation was attested on 09.05.1991, whereas the suit was instituted on 20.07.2020, after the lapse of approximately twenty- nine years. Muhammad Khalid, attorney for petitioner No.1, admitted during cross-examination that he had acquired knowledge of the disputed mutation in the year 2009 and thereafter communicated the same to petitioner No.1. Notwithstanding this admitted knowledge, no proceedings were initiated for several years. The assertion that the cause of action arose afresh upon subsequent entries in the Jamabandi is of no assistance in the peculiar circumstances of the present case, particularly when respondent No.1 was admittedly in possession of the property and the petitioners were seeking to invalidate the underlying sale transaction. The plea that the petitioners acquired knowledge of the alleged fraud at a subsequent stage is also weakened by the admitted evidence concerning the respondent's possession and the knowledge

acquired by their attorney in 2009. Mere invocation of fraud does not automatically suspend or extend the prescribed period of limitation. The party seeking the benefit of delayed discovery is required to establish the material facts concerning the discovery of fraud and the circumstances preventing its earlier detection.

9.The transaction was supported by DW-02 and DW-03. The question whether their evidence was sufficient to prove the disputed transaction was essentially one of appreciation of evidence. Both the trial Court and the appellate Court, upon consideration of the available material, answered that question in favour of the respondents. No material inconsistency, inadmissibility or legal defect has been demonstrated which would render their concurrent conclusions unsustainable.

10.The grounds urged in the revision petition are, in substance, directed towards securing a fresh appraisal of the same evidence which has already been examined by two competent Courts. The petitioners have not identified any material piece of evidence which was completely ignored, nor have they demonstrated that the findings are based upon

inadmissible material or a manifest misconception of law. The concurrent findings regarding the genuineness of the sale transaction, failure to prove fraud, long-standing possession of respondent No.1 and the bar of limitation are supported by the evidence available on record. Such findings cannot be displaced merely because another interpretation of the evidence is suggested on behalf of the petitioners.

11.It is pertinent to observe that the jurisdiction exercisable by this Court under Section 115, C.P.C. is supervisory and revisional in character and cannot be equated with the jurisdiction of a regular Court of appeal. Interference with concurrent findings of fact is warranted only where the subordinate Courts have exercised jurisdiction not vested in them by law, failed to exercise jurisdiction so vested, or acted illegally or with material irregularity in the exercise of their jurisdiction. Such interference may also be justified where the findings suffer from patent misreading or non-reading of material evidence, perversity, or a manifest error of law resulting in miscarriage of justice. Mere disagreement with the appreciation of evidence by the Courts below does not

furnish sufficient justification for interference in revisional jurisdiction.

12.It is a settled principle that revisional jurisdiction is not intended to provide an unsuccessful litigant with a third opportunity to contest questions of fact. Where the subordinate Courts have exercised jurisdiction lawfully, appreciated the evidence in accordance with the applicable legal principles and recorded findings supported by the material on record, interference under Section 115, C.P.C. would be unwarranted. In the present case, no jurisdictional defect, material irregularity, patent illegality, misreading or non-reading of evidence, or perversity has been established. In the case of “Aamir Afzal and another vs. S. Akmal (deceased) through L.Rs and 2 others” reported as 2024 SCMR 1649 the Hon’ble Apex Court has held that;

“While exercising jurisdiction under Article 115 of the C.P.C. the High Court has to first satisfy itself: (i) that the order of the subordinate court is within its jurisdiction, (ii) that the case is one in which the court ought to exercise jurisdiction; and that in exercising jurisdiction that court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. Section 115 applies only to cases in which no appeal lies, and where the legislature has provided no right

of appeal. The manifest intention of the legislature is that the order of the trial court, right or wrong, shall be final, except in specific circumstances. It is, therefore, obvious that unless the case is not covered under Section 115 of the C.P.C. and the High Court was satisfied in this regard, then in such a case no power could be exercised to interfere simply because it differs, however profoundly, with the conclusions of the subordinate court regarding questions of law and facts.

Kanwal Nain and others v. Fateh Khan and others PLD 1983 SC 53 and Umar Dad Khan and another v. Tila Muhammad Khan and others PLD 1970 SC 288 ref.

The scope of jurisdiction of the High Court under Section 115 of the C.P.C. is limited in relation to concurrent findings of the competent courts. The exceptions to this rule are when the findings are based on insufficient evidence, misreading of evidence, non- consideration of material evidence, patent errors of law, consideration of inadmissible evidence, abuse of jurisdiction, and when the conclusions drawn are perverse and based on conjectural presumptions. The erroneous decisions of fact are ordinarily not revisable and the mere fact that the High Court may differ on a question of fact or mixed question of law and fact is not a valid ground for interfering with concurrent findings. Moreover, the concurrent findings recorded on the basis of evidence are not susceptible to further review to justify interference by the High Court in revisional jurisdiction. The interference by a High Court in such jurisdiction would not be justified on the ground that reappraisal of evidence might suggest another view of the matter unless there has been a gross misreading of evidence and material evidence was ignored”.

12.In view of the above discussion, the instant revision petition is dismissed in limine.

Announced

Tufail. /*

JUDGE