Mian Saeed Ullah Jan etc Vs Mst. Nusrat Begum etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

PESHAWAR.

JUDICIAL DEPARTMENT.

JUDGMENT

Civil Revision No. 362-P/2014.

Date of hearing: 16.12.2025.

Mian Saeed Ullah Jan etc Versus Mst. Nusrat Begum, etc.

Petitioner (s) by: M/s Bashir Ahmad and Behzad Haider Advocates.

Respondent(s) by: M/s Muhammad Mujeeb, Abrar ul Haq and Anwar Khan Advocates.

WIQAR AHMAD, J:-. This single judgment shall dispose of instant Civil Revision bearing Number 362-P/2014 as well as the connected Civil Revision No.384-P/2014, as in both these petitions subject matter, parties and matter in issue are same.

2.Facts giving rise to filing of the above civil revisions are that respondent No.1, Mst. Nusrat Begum, instituted a civil suit before learned Civil Judge-XXIII, Peshawar, seeking possession through partition in respect of a residential bungalow constructed upon a plot situated at 13-D Circular

Road, University Town, Peshawar. It was averred that suit property formed part of inheritable estate of her deceased father (late Mian Akbar Jan) and upon his death the property devolved upon all his legal heirs according to their respective shares under Muslim Personal Law. It was alleged that despite her lawful entitlement, she was excluded from possession by other heirs, compelling her to seek relief from court.

Defendants contested the suit by filing written statements, while some of defendants remained ex- parte. Principal defence taken was that suit property, wholly or partly, was not available for partition as certain shares had already been lawfully transferred prior to institution of suit, and that plaintiff was estopped from claiming partition in respect thereof.

On the basis of pleadings of the parties, learned civil Court framed issues, recorded oral and documentary evidence, and after evaluating same, decreed the suit on 04.04.2011, holding the plaintiff entitled to possession through partition to the extent of 1/7th share. Aggrieved form impugned judgment and decree, defendants (Mian Saeedullah Jan etc) filed CR No.362-P/2014.

Civil Appeal No.65/13 while Dr.Balqees Afridi (daughter in law of late Mian Akbar Jan) filed Civil Appeal No.64/13. After hearing parties, both the appeals were dismissed by learned Additional District Judge-XIV, Peshawar, vide separate judgments of even date i.e, 28.02.2014. Feeling aggrieved from impugned judgments of both the Courts below, Civil Revision No.362-P/2014 was filed by petitioners Mian Saeed Ullah Jan etc while Civil Revision No.384-P/2014 has been filed by Dr.Balqees Afridi, wife of Mian Asadullah Jan, who is petitioner No.2 in CR No.362-P/2014. Since in both the civil revision petition, similar question of law and fact regarding disputed property is involved, therefore, both these civil revision petitions are being decided through this single judgment.

3.Arguments heard and available record perused.

4.Perusal of record reveals that relationship between the parties was admitted. It was admitted that Mst.Nusrat Begum was daughter of Mian Akbar Jan.

It was also admitted that plot in dispute had been CR No.362-P/2014.

purchased by said Mian Akbar Jan in his life time. He had died in the year 1961. Respondent No.1 (Mst.Nusrat Begum) being his daughter had brought a suit before learned civil Court praying for partition of house consisting of 6 kanals and 10 marlas bearing No.13-D Circular Road, University Peshawar, on the ground that the predecessor (father) of parties namely Mian Akbar Jan was owner of said house. It was stated that parties being sons and daughters of late Mian Akbar Jan were entitled to their respective shares in said house and according to prayer for partition was also made. Said suit was decreed by learned Civil Court below vide judgment and decree dated 4.4.2011. It is important to be noted that two separate appeals were filed against said judgment and decree i.e, Civil Appeal No.65/13 by Mian Sad Ullah Jan and Mian Asad Ullah Jan (sons of late Mian Akbar Jan) while Civil Appeal No.64/13 of 2013 was filed by Dr.Balqees Afridi (wife of Asad Ullah Jan) daughter in law of late Mian Akbar Jan. Both the appeals were dismissed by learned Additional District Judge-XIV, Peshawar through separate judgments of CR No.362-P/2014.

even date i.e, 28.02.2014. Aggrieved from impugned judgments, petitioners Mian Saeed Ullah Jan and Mian Asadullah Jan etc filed Civil Revision No.362- P/2014. During pendency of civil revision, Mian Saeedullah Jan (petitioner No.1) died, therefore, his legal heirs were impleaded as parties in the panel of petitioners. Lateron petitioner No.2 (Mian Asadullah Jan) filed an application (CM No.248-P/2024) for transposition of LRs of deceased Saeedullah Jan (petitioner No.1) in the panel of respondents, being not interested in pursuing the matter, which application was allowed. So Civil Revision No.362- P/2014 is being pursued by Mian Asadullah Jan while other Civil Revision No.384-P/2014 has been filed by his wife namely Dr.Balqees Afridi.

5.Coming back to case of Mst.Nusrat Begum, who was plaintiff before learned civil Court, it is apparent that she had admittedly been daughter of late Mian Akbar Jan, who had been original owner of property in dispute. Two brothers i.e, contesting defendants in the suit have been taking the plea of defence that they had been in possession of property CR No.362-P/2014.

in dispute as owners and their main reliance had been on partition deed dated 05.04.1976 brought in evidence as Ex.PW.2/D-1. This purported partition deed have rightly been discarded by both the learned Courts below. Both brothers have made distribution inter se without giving any share to female LRs.

Female legal heirs could not be excluded from their legacy on the basis of such like instruments. By now jurisprudence in this regard is well settled and reliance here may be placed on the judgment of Hon’ble Supreme Court of Pakistan rendered in the case of “Ghulam Ali and 2 others Vs Mst.Ghulam Sarwar Naqvi” reported as PLD 1990 SC 1. Similarly, plea of waiver or estoppel cannot be pressed into service by brothers against a sister. Although learned counsel for petitioners mainly relied on the fact that husband of Mst.Nusrat Begum (plaintiff) was marginal witness to the partition deed but even said fact cannot be construed to the effect of excluding female legal heirs of Mian Akbar Jan from his legacy. Plea of waiver or estoppel cannot be utilized in favour of brothers or male LRs for excluding the female legal heirs from CR No.362-P/2014.

inheritance. Same has never been a policy of law as laid down by Hon’ble Supreme Court of Pakistan while rendering its judgment in case of “Ghulam Ali supra, where it has been held;

“At this stage the argument of the petitioners that "they have a strong moral claim to the suit property can also be dealt with briefly though it is so unfounded that it can be ignored with contempt. The treatment of women in Islam particularly those who are close relations like daughters, sisters, wives, mothers and others similarly placed, if one studies carefully, as already discussed, has to be self-enforcing, The foregoing discussion highlights a moral claim in favour of the respondent-sister rather than in favour of the petitioners. They would be condemned in any Court of morality even on making a claim. The test has to be Islamic teachings. On this, view also the petitioners' case would be Covered by Section 23 of the Contract Act and their claim being immoral on the touchstone of Islamic principles, cannot be granted. (See also Miss Benazir Bhutto's case (PLD 1988 SC The pleas of estoppel, waiver and adverse possession can also be now easily repelled in the light of the foregoing discussion of the Islamic principles. The petitioners being the brothers of the respondent were required by the Islamic law to protect the property rights of their sister if ever they came into-possession of the land in any capacity, Here admittedly they alleged voluntary relinquishment, therefore, even otherwise the well-known rules for establishing adverse possession, CR No.362-P/2014.

particularly the one relating to hostility, would not be established. But as stated earlier one who is enjoined with the protection of 'the other's property cannot lay claim adverse to the interests and rights of that other one who owns it. The Saying of the Holy Prophet (P.B.U.H.) has been quoted which enjoins upon the menfolk to protect property rights of their womenfolk. Under the Islamic dispensation, therefore, in the present case there could be no claim of adverse possession. Same would apply to the estoppel and waiver. More so on account of rule of public policy and the principle of devolution of the property in respondent's favour immediately on the death of her father (regardless of the fact whether she did any other act to exercise control over it) would negate the plea of estoppel or waiver. The plea of ouster, to say the least, is untenable; because, its essential component, the plea of adverse possession, is obviously not available against a sister what to talk of her ouster.

6.Petitioner No.2 in CR No.362-P/2014 was not having any case vis-à-vis his exclusive right of ownership in respect of part of property in dispute in his possession. In this respect, both the Courts below have rendered proper judgments with appropriate reasoning and his defence please have rightly been discarded. This Court is not inclined to take a different view of the evidence, nor reappraisal of CR No.362-P/2014.

evidence is required when both the Courts below have rendered concurrent judgments.

7.Coming to the case of Dr.Balqees Afridi (petitioner in CR No.384-P/2014), it is important to be noted that she was wife of Mian Asadullah Jan, who is petitioner in connected Civil Revision. It is also important to note that she had not been arrayed as party to the suit before civil Court below, however, she had filed an appeal before learned Additional District Judge, Peshawar. Her appeal was competent as per ratio of judgment rendered in case of “H.M.

Saya & Co, Karachi Vs Wazir Ali Industries Ltd, Karachi reported as PLD 1969 Supreme Court 65, where Hon’ble Supreme Court of Pakistan has held that if right of a person in subject matter of a suit is adversely effected through a judgment and decree of the Court, he or she would be competent to file an appeal even if not been earlier arrayed as party to the suit. For ready reference relevant part of the judgment is also reproduced hereunder: -

“If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal CR No.362-P/2014.

even if he was not made a party to the original suit or proceedings.”

Hon’ble Supreme Court of Pakistan has also held in above judgment:

The English Courts have consistently followed the practice that a person who is not a party to a suit or a proceeding may prefer an appeal if he is affected by the judgment, decree or order of the trial Court provided he obtains leave from the Court of appeal. The test applied in granting leave to appeal, in such cases, is that if the person who) wants to prefer the appeal might properly have been a party in the suit or proceeding then he may obtain leave to appeal. The case of In re : B. An Infant ((1958) 1 Q B 12, 17) on which Mr. Dingoomal has relied lends support to the above proposition. In our view this is an equitable rule which should be followed in the absence of any provision to the contrary in the Code of Civil Procedure.

Said ratio decidendi has also been applied by Hon’ble Islamabad High Court in case of Mst. Riffat Shamim Vs Mehmood Hussain (2019 YLR 634, Islamabad), as well as by Hon’ble Sindh High Court in case of “Hussain A. Haroon Vs Mrs.Laila Sarfaraz (2003 CLC 771, Karachi).

Likewise, in case of “Abdur Rehman Vs Government of Balochistan through Collector CR No.362-P/2014.

Mastung” reported as 2005 YLR 277(Quetta), Hon’ble Baluchistan High Court has held:

“a person who was not party to the suit, could also appeal against the decree if he was adversely affected by same and was permitted by appellate Court to file an appeal.

Appeal of petitioner in Civil Revision No.384-P/2014, has also been found maintainable by learned appellate Court but was dismissed on merits. Regarding merits of her case, it is important to be noted that her husband Mian Asadullah Jan has expressly stated in written statement that he had transferred his share in the joint immoveable property in favour of his wife i.e, petitioner in CR No.384-P/2014. Relevant assertions made in written statement are also reproduced hereunder for ready reference:

کو جبکہ بقايا نصف١ "خالی پلات مدعا عليہ نمبر کو ديا گيا۔ اور٢حصہ بمعہ آبادی مدعا عليہ نمبر تقسيم کی نسبت باقاعده دستاويز مورخہ روبروے گواہان تحرير کيا گيا۔ اور ٗ کو١٩ ٦۔ ۔۵ ان گواہان ميں سے ايک گواه حاشيہ مدعيہ کا شوہر مياں تحسين الله ولد مياں عبيدالله جان بهی نے اپنا نصف٢ ہے۔ نيز بعد ازان مدعا عليہ نمبر حصہ بمعہ آبادی بوقت نکاح اپنی زوجہ ليڈی ڈاکٹر مسماة بلقيس آفريدی کے حق ميں بمعہ ديگر ممہوره اشياء منتقل کيا۔ اور اس سلسلے ميں با کو عمل١٩ ٦۔ ۔٨ قاعده نکاح نامہ مورخہ ميں لايا گيا۔ اور اس نکاح نامہ پر بهی شوہر مدعيہ بمعہ زوجہ٢ کا دستخط بطور وکيل مدعا عليہ نمبر خود نصف رقبہ مزکور ميں رہايش پزير ہے اور CR No.362-P/2014.

اور زوجہ اش٢ اس حيثيت سے مدعا عليہ نمبر نی ابادی بهی کی ہے۔ اس طرح مدعا ٗ نے مزيد نے بهی اپنے خالی پلات پر بلاگت کثير١عليہ نمبر جديد آبادی کی جسميں وه کود بمعہ اہل وعيال کے رہايش پزير ہے۔ اور اگر بالفرض متعلقہ ريکارڈٗ جايداد متدعويہ کووارثان مياں اکبر جان کی ٗ ميں گی ہو تو وه اندراج يقينا ٗ مشترکہ ملکيت ظاہر کی سازشی اور غير قانونی ہے۔ اور مدعا،فرضی عليہم اسکے ہر گز پابند نہيں ہے۔ اور مدعا عليہم اس سلسلے ميں اپنا حق محفوظ رکهتے ہيں۔ It was case of Mian Asadullah Jan before the Courts below that in pursuance to partition deed Ex.PW.2/D- 1, he had acquired title to the extent of half of property in dispute and said half had been further gifted by him to his wife Mst.Dr.Balqees Afridi vide deed Ex.PW.2/D-2, executed on same date of 5.4.1976, on which partition deed Ex.PW.2/D-1 had been executed. It was also further stated by him in his statement that he has been living in his house alongwith other family members. Infact there has never been a dispute between husband and wife about property in question. Gift in favour of Dr.Balqees Afridi, has been affirmed repeatedly by her husband Mian Asadullah Jan (donor) and same was not requiring any further proof. It is a settled proposition of law that facts admitted need not to be proved. It is equally settled proposition of law that no one can CR No.362-P/2014.

transfer a better title than he himself possesses. Mian Asadullah Jan could have transferred so much of property in dispute in favour of his wife as much he was possessing as co-owner. To said extent only the gift deed Ex.PW.2/D-2 would operate as a valid conveyance for transfer of title in favour of Dr.Balqees Afridi (petitioner in CR No.384-P/2014) and beyond that same would not operate to any extent or effect. Construction on the property have also been claimed to have been raised by Dr.Balqees Afridi or Mian Asadullah Jan and there has not been any rebuttal to such claim of Mian Asadullah Jan,made in the pleadings as well as evidence. Mst. Nusrat begum has not led any evidence to rebut said claim or to prove that she has ever remained in physical possession or to have otherwise participated in the construction. Her husband has expressly admitted in his statement recorded as DW.4, the factum of possession of two brothers in property in dispute. It is well established on record that construction on the share of property in possession of Dr. Balqees Afridi and her husband Mian Asadullah Jan (jointly) had CR No.362-P/2014.

been raised by them. Appeal of Dr. Balqees Afridi has therefore wrongly been dismissed by learned appellate Court. Resultantly, CR No.384-P/2014, filed by Dr.Balqees Afridi is partly allowed to the effect that Shari share of Mian Asadullah Jan in the legacy of his father (Mian Akbar Jan) shall be curved out in proceedings for final decree and to said effect same shall be deemed to be transferred in favour of Dr.Balqees Afridi. If the constructed part of property in her possession is found to be over the proportionate land owned by Dr.Balqees Afridi, same shall be adjusted to her share and share of plaintiff/respondent No.1 to the extent of 1/7th share shall be adjusted from vacant plot alongwith a proper access to outside street.

If share of respondent No.1 could not be adjusted in vacant plot by excluding the part of construction of petitioner in CR No.384-P/2014, the constructed part possessed by petitioner in CR No.384-P/2014 may also be adjusted in share of respondent No.1, without any corresponding, compensation, because petitioner had never obtained any express permission from respondent No.1 or other female legal heirs before CR No.362-P/2014.

raising construction. Judgement and decree of both the Courts below shall be deemed accordingly modified.

Civil Revision No.362-P/2014 filed by Mian Asadullah Jan etc, is dismissed.

Announced.

--sd--

JUDGE

“A. Qayum PS” (SB) Hon’ble Mr. Justice Wiqar Ahmad.

CR No.362-P/2014.