Pardahnashin lady and the defendant was her real daughter---Both the Courts below had
dismissed the suit of the plaintiff for the reason that the disputed sale-deed was registered
document and the plaintiff admitted her thumb-impression---Plaintiff never consciously
executed the disputed sale*-deed and the defendant, the beneficiary of the document,
failed to establish through affirmative evidence that the sale consideration was ever paid to
the plaintiff---Defendant, the beneficiary, also failed to establish that she or her husband
had the means to purchase the property in dispute---Where the plaintiff was an old,
ignorant and totally illiterate lady, burden was upon the defendant beneficiary throughout
to prove and establish through unimpeachable convincing evidence that the sale
transaction was genuine and was for valid consideration---Defendant alongwith her
husband having tried to deprive the plaintiff (her mother) of the valuable property through
fraud and misrepresentation judgments and decrees of both the Courts below were set
aside and the sale-deed in question was cancelled. 2000 Y L R 1678 Janat Bibi v. Sikandar
Ali and others PLD 1990 SC 642; Muhammad Shaft and others v. Allah Dad Khan PLD 1986
SC 519; Irshad Hussain v. Ijaz Hussain and 9 others PLD 1994 SC 326 and Muhammad v.
Mst. Rehmon through Mst. Sharifan Bibi 1998 SCMR 1354 ref.
Claim of ownership based on transaction of sale and on basis of adverse possession -
Plaintiff on basis of documents on record had proved that he had purchased one half of plot
in question and the other half was also in his possession whereon he had claimed
ownership on basis of adverse possession-Plaintiff was not debarred from taking plea of
adverse possession in case he failed to prove his possession on basis of transaction of sale-Finding of Courts
below including the High Court that sale transaction on half of the plot and adverse possession on the
other part was not proved was erroneous and fallacious and contrary to record--Defective document of title
although does not create title in favour of purchaser yet the same would be relevant for collateral purpose
and could be used to prove possession--Plaintiff being notoriously in possession of land in question for a period of more than 12 years, his possession on the same would be regarded as adverse-Defendant
had admittedly obtained decree of land which was in possession of plaintiff through fraud and collusion,
therefore,the same could not affect plaintiff's title over properly partly on basis of sale and partly on basis
of adverse possession. P.L.J.2002 SC(AJK)55 PLD1964SC220;AIR1926Oudh98 &431;PLD1975SC
311;P.L.J.1999SC(AJK)78;PLD1984SC(AJK)120;1992SCR286andAIR 1924 Cal.1046ref.
Computation point for Limitation:-- Deceased was governed in matters of inheritance by
Sharia Law. Mutations of inheritance on basis of Custom were sanctioned in 1939 while
suit for declaration was filed by daughters of deceased in 1985, when payment of produce
was stopped to by defendants. That being first attack on their rights plaintiffs suit while
counting time from that date was well within time.-P.L.J.1997 Lah. 1183 = 1997 CLC 659.
Demarcation of land - dispute between the parties related to the demarcation of portion
of land owned by the parties related to the demarcation of portion of land owned by the
parties--- Trial Court appointed a senior Advocate as Local Commission and basing on the
report of the commission, suit was decide - Appellate Court dismissed the appeal and
maintained the decision of the Trial Court - Defendants contended that the courts below
had fallen in error by taking into consideration the report of the Local Commission,
therefore, their judgments and decrees were against the law and required interference -
Trial Court had placed its reliance on report of the local Commission as the same was
admitted without any objection from the defendants‘ side - Report of the Local Commission
was evidence in the case, therefore, the same was sufficient on the strength of which
finding could be justifiably recorded by the Trial Court under the law - Trial Court had
based its findings on the report of the Local Commission, which fully demarcated the land
of the defendants vis-Ã -vis the land of plaintiffs and the site plan had been exhibited - High
Court declined to interfere with the concurrent findings of fact by the courts of competent
jurisdiction - Revision was dismissed in circumstances. PLD 2003 Pesh. 23 Dismissal of plaintiffs suit for declaration and injunction. Only legal points and not factual
aspect could be discussed in revision. Factual aspect of case having already been decided
by concurrent Judgments of Courts below could not be agitated before Revisional Court.
Grounds stressed before 'High Court were almost the same which were argued before
Appellate Court. No legal flaw in Judgment of Appellate Court had been pointed out by
petitioner. Petitioner's contention that Appellate Court did not comply with provision of
O.XLI, R. 31 C.P.C. was without force, therefore, the same could not warrant interference
of High Court. Appellate Court while upholding trial Court's -findings considered evidence
issue-wise. Petitioner, thus, could not point out any Jurisdictional defect in impugned
Judgment nor-he could show any misreading of relevant evidence or overlooking of any
important evidence. Ownership of disputed property being involved in the case, evidence
had been evaluated by both Courts below. Dispute relating to ownership of property in
question, was question of fact and the same was determinable on thorough analysis of
evidence led by parties. Evidence on record having been evaluated by Appellate Court,
Scope of revisional Jurisdiction was limited and no interference was Justified unless patent
illegality, want of Jurisdiction, mis-exercise of authority or material irregularity could be
disclosed. Concurrent findings of fact recorded hy Courts below did not warrant
interference in circumstances.-P.L.J.2000 Qta. 18 = PLD 2000 Qta. 66.
Documentary evidence--*Statement with regard to total outstanding amount against the
plaintiff as arrears was prepared by "Wasal Baki Nawees" which was a public functionary
working under the control of the defendant-Government---Said document which was
produced by the defendant Government-itself and was admitted in evidence, would be
binding on defendant in suit filed against it---Defendant after relying upon said document,
could not wriggle out of the vigour of the same. 2002 M L D 797
Evacuee Trust Properties (Management and Disposal) Act, Suit, for possession and
Permanent Injunction of Balmiki Mandar. Judgment & Decree passed by Trial Court on oath
on Holy Quran set aside in appeal and case remanded for trial on merits. Any dispute in
respect of property, like suit property, would be governed, by Act XIII of 1975 i.e. Evacuee
Trust Properties (Management and Disposal) Act, 1975. As and when question arises as to
whether evacuee property is attached to charitable, religious or educational trust or
institution or not, shall be decided by Chairman whose decision shall be final and shall not
be called in question in any court. Jurisdiction of Civil Court is barred u/S 14 of said Act.
Order of trial court as well as appellate court are without Jurisdiction. P.L.J.1996 Pesh. 29
1995 CLC 2028.
Fake and fraudulent transaction. Petitioner could not point out any flaw or legal
infirmity in impugned Judgment of High Court, which would warrant interference. High
Court was right in holding that findings of Courts below were essentially of facts which
were recorded after sound appraisal of evidence keeping in view relevant law; therefore,
such findings were not open to interference in revisional Jurisdiction. First Appellate court
had correctly found on evidence that plaintiff was illiterate and Parda -observing lady who ,
never entered into contract of sale, nor received any consideration nor appeared before
Rev. Officer and that her rights were sought to be usurped through impugned mutation
based on fraud. Law regarding disposition of property by Pardanashin ladies which was
equally applicable to illiterate and ignorant women was fairly wellSettled that person
claiming benefit of such disposition must establish affirmatively by strongest and most
satisfactory evidence that transaction in question, was real, genuine and bona fide. Courts
below had rightly declared impugned transaction as not proved and their concurrent
findings warrant no interference.-P.L.J.1997 SC 1180 - 1997SCMR459.
Form of suit - Suit for declaration instead of suit for specific performance of agreement -
Document relied upon by the plaintiff had two separate aspects and they were Joined
together - On one side the document was relied on as promissory note whereas on the
other side the same was treated as agreement - Plaintiff filed suit for declaration for the
recovery of certain amount on the basis of the document - Validity - Such misjoinder of
claims given in the deed could provide no benefit to plaintiff because portion of the deed
qua the agreement the witnesses were necessary and so associated while claim qua the
money in the deed witnesses were not necessary but still they were there - Plaintiff in the
present case himself had damaged the quality of the deed as promissory note - Second
portion of the deed, prima facie, indicated the same to be an agreement to sell, for the
executant undertook to sell certain portion of the land - Plaintiff ought to have had brought
a suit for specific performance of contract for the portion relating to agreement to sell -
Suit for declaration was not maintainable in circumstances, PLD 2002 Pesh. 1
Improvement made in mortgaged property - Costs of improvements were to be awarded to
a particular party which made improvements in good faith - Plaintiff, in the present case,
on basis of mortgage deeds had asserted his title by alleging that mortgage deeds in fact
were sale-deeds and as such he could be declared to be owner of land mortgaged to him -
Plaintiff, in circumstances, was not entitled to claim any costs for improvements on suitland.
2002
CLC
1121
Fazal
Haque
and
others
v.
M.D.
Afan
and
another
PLD
1971
Dacca
158;
Maulvi
Abdul
Saboor
v.
Said
Mir
and
9 others
PLD
1983
SC
(AJ&K)
63;
State
Bank
of
Pakistan
v.
Khaledar
M.A.
and
others
PLD
1963
Dacca
844;
Mir
MatiulLah.
and
others
v.
Ch.
Ahmed
Misri
and
others
Civil
Appeal
No.
185
of
1998
and
Abdul
Rahman
and
another
v.
Alif
Din
and
others
Civil
Appeal
No.
144
of
1998
ref.
Injunction:-- Plaintiff had undertaken before Magistrate in proceedings under S. 145,
Cr.P.C. that he would be bound by decision of Rent Controller. Rent Controller had found
plaintiff to be tenant. Prayer for injunction (in presence of such statement) in terms of S,
56 (J), Specific Relief Act, 1877 would be hit by principles of estoppel. Trial Court had
correctly dismissed plaintiffs suit. P.L.J.1997 Kar. 1035 = 1997 CLC 1109 = NLR 1997 Civil
647.
Insanity and disease of epilepsy. Burden was on plaintiff to prove that vendor, was of
unsound mind for which he made no efforts during trial. Trial though continued for more
than five years plaintiffs did not move Trial Court so that vendor might be' medically
examined in that regard. Evidence adduced by defendants was plausible, natural and there
was no iota of doubt. Reasons given in favour of plaintiffs by Lower Appellate Court as the
High Court were not cogent and sound and the same could not be accepted. Person
suffering from epilepsy" could not be termed as of unsound mind. Judgment -of Trial Court
was perfectly right and was based on very valid and cogent reason in consonance with
established principles laid down by Supreme Court. Reasoning and conclusion of Lower
Appellate Court as well as High Court was based on . unsound reasoning and contrary to
evidence recorded by Trial Court and same could not be accepted. Judgments of High Court
as well as of Lower Appellate Court were set aside and that of Trial Court was restored
whereby suit filed by plaintiffs was dismissed. P.L.J.2001 SC 1526 = 2001 SCMR 871
Interference by High court in exercise of Revisional powers -- Suit for declaration
and injunction to the effect that plaintiff was the owner in possession of the suit land and
that the transaction with regard to its sale in favour of defendants did not materialize as
the consideration was not paid, hence relevant mutation was liable to be cancelled - Said
suit was dismissed in toto by the High Court - Validity - Record would show that the
vendee, except the mutation containing the alleged admission of vendor, had not brought
any document showing payment of sale consideration - Vendor had admitted the sale of
land but denied the payment of sale price to him in the written statement and also in his
statement before the Court - Vendor also denied to have made any admission regarding
the payment of sale price could also be proved through oral evidence which had to be
direct and of unimpeachable character - Payment admittedly was not made before the
Revenue officer and the remaining witnesses including the vendee herself were not
consistent about the mode and manner of payment - Court of first instance and appellate
court, after detailed discussion of evidence, concluded that sale consideration was not paid
and the finding of fact of the two courts was reversed by the High Court with the
observation that the vendor failed to discharge the onus of proving the fact relating to the
non-payment - Vendee had not been able to satisfy even the Supreme Court that the
concurrent finding of the two courts on the question of fact (payment) suffered from any
defect of misreading or non-reading of evidence or the material facts were misconstrued in
coming to the concluding that sale price remained unpaid - Revisional jurisdiction of High
court being discretionary was not to be exercised if the substantial justice had been done
between the parties - Mere fact that the High Court differed on a question of fact or a
mixed question of law and fact was not a valid ground for interference in the concurrent
findings - High court, in the present case, reversed the findings of fact through reappraisal
of evidence in civil revision beyond the scope of revisional jurisdiction - Misappreciation of
evidence was different to the misreading and non-reading and there was no concept of
upsetting the findings of fact by the high Court through appraisal of evidence in revisional
jurisdiction in case of misappreciation of evidence by the lower courts - Supreme Court
while setting aside the judgment of the High Court, restored that of judgment and decree
passed by the Appellate court. PLD 2003 SC 362.
Interim injunction, grant of - Concurrent findings of fact by the Courts below - Plaintiffs
assailed general power of attorney and claimed the same to be the result of fraud and
forgery - Both the Courts below declined to grant the injunction in favour of the plaintiff -
Validity or otherwise of the document had yet to be determined and adjudicated upon at
the trial after evidence of the parties was recorded - Effect - Both the Courts below had
rightly declined to grant temporary injunction and had decided question of pure fact in
lawful exercise of their exclusive Jurisdiction in a proper manner - High Court declined to
disturb the concurrent findings of fact by the Courts below, PLD 2001 Pesh. 126 Mst. Raisa
Bano and 7 others v. Muhammad Riaz Awan and 2 others 1996 MLD 238; Bakhtawar and
others v. Amin and others 1980 SCMR 89; Muhammad Jan Ghaznawee v. Haji Muhammad
Qabeer and 3 others PLD 1977 Quetta 60 and Mst. Shumal Begum v. Mst. Gulzar Begum
and 3 others 1994 SCMR 818 ref.
Interim injunction, grant of - Registered sale-deed was questioned - Interim injunction in
favour of the plaintiffs - Contention of the defendants was that as the plaintiffs had not
sought declaration about their ownership and title in the suit whereas the other relief, in
the form of injunction, possession and mesne profits being dependent upon ownership of
plaintiffs, same could not be granted without a declaration about their ownership - Validity
- Where plaintiffs had not sought declaration of their ownership in the suit, a consequential
relief of injunction, permanent or interim, could not be granted to them - Due to the
material omission in the prayer clause in the suit, the plaintiff, prima facie, had no case for
grant of an interim injunction in their favour - High Court set aside the interim injunction
granted in favour of the plaintiff. 2002 CLC 571
Muhammadan Law:-- Document required by law to be attested could not be used as
evidence until at least two attesting witnesses had been called for purpose of proving
execution thereof, if they were alive and capable of giving evidence--- No evidence had
been produced by defendants (donees) that scribe or attesting witnesses were not alive,
therefore, presumption would be that they were alive---Original gift deed was shown to
have been executed on 29-11-1988 and date of registration as shown by said document
was 28-i1-1988---Such fact could not be ignored and that anomaly could have been
resolved by scribe of document who could produce relevant register to settle the
same---Defendants' failure to produce scribe of document would render adverse
presumption to be drawn against them---Gift deed having not been proved in accordance
with law, plaintiff who was daughter of deceased could not be deprived of her inheritance
from her father's property: 1995 M L D 1841
Onus to prove the ownership in suit property - Plaintiffs failed to prove that they were
owners in possession of the suit property - Both the courts below concurrently dismissed
the suit as well as appeal filed by the plaintiffs – Validity - Plaintiffs failed to point out any
misreading or non-reading of the evidence on the record - Both the Courts below had
appreciated the evidence on the record an the inference drawn from such appreciation had
been lawfully made - No illegality or infirmity in the judgments had been indicated - Person
who asserts/alleges a particular fact and wants the court to believe that such fact exists he
shall be required to prove the existence of such a fact - Petitioners, in the present case,
had not been able to prove successfully that they were owners in possession of suit land by
virtue of inheritance or exchange and that the defendants had no interest in the same -
Onus to prove their case was on the plaintiffs who had failed to prove their assertions and
version in the plaint - High Court declined to interfere with the judgments and decrees
passed by both the courts below - Revision was dismissed in circumstances. PLD 2003
Pesh. 49
Ownership claim by Taraddadkars---Plaintiffs filed. suit for declaration that they being
Taraddadkars of suit land by virtue of Mutation No.83 were entitled by operation of law to
ownership of 10/16th share thereof and not 1/4th share as had been given to them
through Mutation No.227---Trial Court decreed the suit---Appellate Court upheld the
decree---Validity---Main condition of Mutation No.83 (containing terms and conditions of
Taraddadkari) about share of produce agreed upon between parties was up to 1/4th share,
which remained unchanged---Mere oral-statement of one of defendants' witness admitting
the share of produce to the extent of~10/16th share, could not be given much weight in
the light of admitted document on record i.e. Mutation No.83 and particularly when there
was no written instrument between the parties changing terms and conditions
thereof---Had parties intended to change the terms and conditions of Mutation No.83, they
could have easily done so by another written instrument, which could have fallen within the
category of notation of contract---Plaintiffs though present at the time of attestation of
Mutation No.227, but had not raised any objection against it and had filed suit after
considerable time, which had adversely reflected upon their conduct---Mutation No.227 had
rightly been attested in the light of provisions of S.114(2)of Punjab Tenancy Act, 1887,
where-under Taraddadkars were entitled to ownership of that part of land under
Taraddadkari, which corresponded to the share of produce---Both the Courts below had
grossly misinterpreted and misread Mutation No.83---High Court accepted appeal and set
aside impugned judgments and decrees with the result of suit of the plaintiff stood
dismissed. 2002 C L C 1411
Plaintiff had denied having made any sale or having got any mutation attested---
Defendants had taken plea that there was a valid sale and a valid mutation in their favour--
Defendantshad to prove valid transaction of sale in their favour-Defendants had not produced original mutation and Revenue Officer who attested mutations in their favour was also not produced by them-Even Lamberdar who allegedly identified the plaintiff was not produced and no evidence was available with regard to the payment of consideration-Case of defendants thus was of no evidence-Concurrent judgments and decrees of courts below were set aside, suit filed by plaintiff would be deemed to be pending before the Trial court which would give anopportunity to the defendants to prove sale allegedly made in their favour by the plaintiff-Trialcourt,afterrecordingevidencewoulddecidewhetherplaintiffhadvalidlysoldsuit-landtodefendants.2004MLD410
Plaintiff seeking declaration of land in question being ownership possession. Land in
question, being Banjar Qadeem and Gher Mumkin Darya seemed lying vacant not under of
any cultivator. Where property was not in possession of any one then rightful owner could
claim possession of such property as possession would follow title. Suit being for
declaration anybody whose ownership or possessor rights were interfered with or
threatened could come to civil Court at any time when his possession or rights stood
threatened. No question of -limitation would, thus,' arise in such cases. Appellate Court,
therefore had rightly decided point of limitation. Additionally defendant had not been able
to show good ground as to why revision was not filed in time and why should delay be
condoned. Only reason which was assigned for delay was that there were some
complicated questions for the department due to frequent misplacement of relevant files
and paper which were the cause of delay in filing revision. Application for condonation of
delay did not show sufficient ground and explanation for period of delay, therefore, same
was rightly dismissed by Appellate Court. Judgment of Appellate Court being unexeeptionable,
revision
was not
maintainable
in
circumstances.-P.L.J.1999
Lah.
1790.
Plea of pardahnashin lady - Failure to produce secondary evidence - Sale mutations in
favour of defendants were assailed by plaintiffs on the ground of fraud - Trial court decreed
the suit for the reason that the plaintiffs were pardahnashin ladies and the person who
identified them was not produced as witness by the defendants - Judgment and decree
passed by the Trial court were maintained by appellate court - Validity - No attempt was
made by defendant to produce the identifier although he had died during the proceedings -
No evidence was available to show that at the time of submission of list of witnesses by the
defendant, the identifier was not alive - Even no attempt was made to produce secondary
evidence due to the death of the identifier - No corroborative evidence of the solitary
deposition of one of the defendants, although the Trial court had given sufficient
opportunities to establish the genuineness of the sale mutation in their favour - concurrent
findings of the two courts below were neither suffering from any jurisdictional or any other
legal infirmity or misreading or non-reading of evidence - Such findings were immune from
interference by High court under its revisional jurisdiction. PLD 2004 Pesh. 30
Prayer for declaration and Injunction. Whether suit was irregular. Declaration and
injunction has also been prayed for specific performance -of agreement entered into
between parties, and it cannot be said that defendants were not given chance of putting
appropriate defence. On other hand, plaintiff had put on guards defendants with respect to
legal process regarding fulfilment of agreement. There is no irregularity or illegality in form
of suit. P.L.J.1998 Pesh. 130 = PLD 1998 Pesh. 52.
Proof of execution of Power of attorney:-- Plaintiff had challenged execution of general
power of attorney in favour of defendant on basis of which property of plaintiff was got
mutated in favour of defendant--*Plaintiff had alleged that impugned general power of
attorney and mutation being result of fraud and misrepresentation, were illegal and
ineffective on the right of plaintiff---Disputed power of attorney, though was registered
one, but neither Sub-Registrar, who had registered same was produced to prove
endorsement by him on the document nor person who had identified executant of said
document, was produced in evidence---Validity---When a document, the execution of which
was denied by executant and same was doubtful, burden to prove could shift on person
who had got benefit out of the said document-Defendants who were beneficiaries of power
of attorney had failed to prove signature of-executant thereof by calling person in whose
presence same was executed---Said power of attorney which was not proved by producing
marginal witnesses, identifier of executant and Sub-Registrar, was not a valid document,
and no authenticity could be attached to it. 2000 M L D 1117 Sana Ullah v. Muhammad
Manzoor PLJ 1986 SC 526 (sic); Haji Faqir Muhammad and others v. Pir Muhammad and
another 1997 SCMR 811 and Basri v. Abdul Hameed 1996 MLD 1123 ref.
Proof of tenancy-Plaintiff asserted their status as tenants of defendants through oral
evidence comprising statement of one of plaintiffs and another witness coupled with
admitted possession of plaintiffs and advance deposit of rent made by them-Such evidence
was hardly sufficient to prove factum of tenancy-Appellate Court had rightly maintained
that mere deposit of advance rent and possession of plaintiffs did not amount to creating of
tenancy in respect of plot in question, in absence of rent/lease deed or order of allotment,
PLD 2003 Lah.163
*Registration of sale-deed--Suit was resisted on the grounds that sale-deed on basis of
which plaintiffs claimed ownership in respect of property in dispute, being not registered
document, could not be relied upon and that suit was barred by, limitation---Sale
consideration of property in dispute being less than Rs.100 was not compulsorily
registrable ---Presumption was attached to validity of sale-deed as same was thirty years
old---Plaintiffs in their plaint had mentioned that cause of action had accrued in their
favour a week prior to filing of the suit when title to the property in dispute was denied to
them---Suit was not barred in circumstances-*Concurrent findings of fact recorded , by
Courts below regarding validity of sale of suit property in favour of plaintiffs not suffering
from perversity, error of jurisdiction and material irregularity, could not be interfered with
by High Court in exercise of its revisional jurisdiction. 2000 Y L R 2748
Remedies against Breach of contract:--Only two remedies are available to the aggrieved
person, either to seek specific performance of the contract, or to seek for damages - Where
specific performance cannot be granted under the law, as a substitute, the plaintiff is not
entitled to file a suit for declaration or for that matter a suit for perpetual injunction, 2002
CLC 77 Malik and Haq v. Muhammad Shamsul Islam PLD 1961 SC 531; Kar. Shipyard
Works v. Muhammad Shakir Sheikh 1993 CLC 330 : Shahid Mahmood v. KESC 1997 CLC
1936; Alvi Sons v. Government of East Pakistan PLD 1968 Kar. 222 and M. Farooq v.
Suleman A.G. PanJwani PLD 1977 Kar. 88 ref.
Rent Matters:-- Suit filed by plaintiff wherein he had sought declaration against order
passed by Rent Controller that finding of relationship of landlord and tenant was illegal,
inoperative, misconceived and void, was hit by provisions of S. 15(5), West Pakistan Urban
Rent Restriction Ordinance, 1959 and plaint of suit ought to have been rejected in terms of
O.VII, R. 11, C.P.C Suit being specifically barred under S. 15(5) of the Ordinance, plaint,
was liable to be rejected.-P.L.J.1997 Kar. 1035 = 1997 CLC 1109 = NLR 1997 Civil 647
Res - Judicata, principle of - Applicability - Earlier suit for declaration was rejected by Trial
Court and appeal against the Judgment and decree was dismissed by Lower Appellate
Court - Suit for specific performance of agreement to sell was filed subsequently - Validity -
Bar contemplated under S.11, C.P.C. would not apply to subsequent suit for specific
performance of contract and permanent injunction - Dismissal of appeal by the Lower
Appellate Court had no bearing on the subsequent owing to distinct cause of action in both
the matters.PLD 2002 Kar. 333 Plaintiff had earlier filed constitutional petition relating to
property in question on the same cause of action, which is the subject matter of suit.
Constitutional petition was disposed on the ground that complicated questions of fact being
involved therein, same could not be decided in constitutional Jurisdiction in absence of
evidence which exercise could not be undertaken in constitutional petition. Plaintiffs suit
was thus not hit by the principle of res Judicata. P.L.J.2000 Kar. 34 = 2000 MLD 895.
Revisional jurisdiction of High Court - Concurrent findings of fact by courts below - suit
for declaration and permanent injunction was filed on the ground that the plaintiff was in
possession of the suit land as Hissadar and the defendant had no concern with the suit land
- Trial Court and Appellate Court concurrently dismissed the suit and appeal filed by the
plaintiff - Validity - If the concurrent findings of fact by the courts below are the result of
misreading of evidence on record, it becomes duty of high Court to set aside the same in
exercise of its jurisdiction under S. 115, C.P.C – No error in reading the evidence had been
committed by the Trial Court or Appellate Court - Plaintiff had failed to point out any
material irregularity or illegality justifying setting aside the concurrent findings by the
Courts below - High Court declined to interfere with the judgments and decrees passed by
the Courts below - Revision was dismissed in limine. PLD 2003 Pesh. 44
Revisional jurisdiction, exercise of---Suit was resisted by defendant on grounds that
identity of suit property was in dispute and that defendant had claimed title in respect of
suit property by virtue of inheritance and on basis .of will--*Validity---Full description of
suit. property had been given and identity of property had not been disputed by defendant
either before Trial Court or before Appellate Court---Such controversy could not be urged
at revisional stage---Defendant could not produce any document to prove his title in suit
property by virtue of inheritance or on basis; of alleged Will---Plaintiff on the contrary had
succeeded in establishing her title in property resting on registered
instrument---Presumption as to genuineness, .correctness and authenticity of registered
documents under Arts.85(5) & 129of Qanun-e-Shahadat, 1984 was not dispelled by
defendant and oral assertion was not sufficient to rebut registered documents produced by
plaintiff in proof of her title in respect of suit property---Suit for possession and declaration
was rightly decreed by Trial Court and Appellate Court---Concurrent findings of Courts
below could not be interfered with in revisional jurisdiction of High Court when no illegality
was pointed out in concurrent finding of Courts below. 2002 M L D 1397 Moinuddin Paracha
v. Sirajuddin Paracha 1994 CLC 247; Muhammad Hussain v. Waheed Ahmed 2000 MLD
281 and Syed Akhtar Hussain Zaidi's case 1988 SCMR 753 ref.
Suit for declaration - Plaintiffs had alleged that defendant unauthorisedly and fraudulently
procured a registered power of attorney from their illiterate and Pardahnashin mother and
on basis of said power of attorney defendant gifted away land of their mother in favour of
his son vide attested mutation and had prayed that power of attorney in favour of the
defendant and mutation of gift in favour of his son should be declared illegal and void - Suit
was concurrently dismissed by the Courts below - Validity - Mother of the plaintiffs had her
own children including sons - Not a word was said either in the pleadings or in the
statement of defendant's witness as to why mother of the plaintiffs would have gifted her
land to the son of the defendant, especially when the defendant had not pleaded any love
or affection for them and nor he had pleaded having rendered any service to that lady - No
evidence was available on record to show that relationship of the lady with her children was
strained - Both Courts below, in circumstances, had acted without lawful authority in
dismissing concurrently suit filed by the plaintiffs - Only findings of fact recorded by the
Courts below that mother of the plaintiffs did appoint defendant as an attorney and that he
gifted away land to his son, were not enough to sustain the dismissal of the suit -
Judgments and decrees of Courts below were set aside by the High Court in exercise of its
revisional Jurisdiction. 2002 CLC 63 Mst. Shumal Begum v. Mst. Gulzar Begum and 3
others 1994 SCMR 818 ref. Restriction on transfer or alienation of more than l/4th of total
land - Plaintiff had claimed that he was owner of suit-land on the basis of mortgage deeds
which as a matter of fact were sale-deeds, but were executed as mortgage deeds in view of
law prohibiting sale for more than l/4th of total estate and in proof of his claim plaintiff had
relied on S.5 of Azad Jammu and Kashmir Alienation of Lands Act, 1995 (B.K.) - Provision
of S.5 of the Act had not provided that alienation of more than l/4th of land was prohibited
in State of Jammu and Kashmir - Claim of plaintiff was rejected. Plaintiff had claimed that
mortgage deeds in respect of suit-land as a matter of fact were sale-deeds, but were
executed as mortgage deeds in view of law prohibiting sale for more than l/4th of total
estate - Plea of plaintiff was rejected, in view of fact that conditions incorporated in
mortgage deeds would not change their basic character. 2002 CLC 1121 Mir MatiulLah. and
others v. Ch. Ahmed Misri and others Civil Appeal No. 185 of 1998; Abdul Rehman and
another v. Alif Din and others Civil Appeal No. 144 of 1998 and Maulvi Abdul Saboor v.
Said Mir and 9 others PLD 1983 SC (AJ&K) 63 ref.
Suit for Declaration & Permanent Injunction. Whether petitioner not entitled to relief of
injunction for not asking for specific performance. Petitioner is not entitled to decree for
permanent injunction since he did not ask for relief of specific performance. Suit for
declaration essentially based on agreement of partnership was completely misconceived
and not maintainable at law. Grant of Declaration under section 42 and relief of injunction
under section 54 of Specific Relief Act and exercise of Revisional Jurisdiction under section
115 C.P.C. is purely discretionary in nature. Petitioner not entitled to any relief.- P.L.J.1996
Kar. 172 = PLD 1996 Kar. 202.
Suit for declaration and injunction - Revisional Jurisdiction, exercise of - Appellate Court
below in reversing findings of Trial Court had not only misread the evidence on the record,
but had also shown ignorance of latest dictums of superior Courts - Appellate Court below
exercised Jurisdiction not vested in it by setting aside and reversing well-reasoned
Judgment of Trial Court without any legal and factual Justification - High Court, in exercise
of its revisional Jurisdiction, set aside Judgment and decree of Appellate Court and restored
that of Trial Court which was based on proper appreciation of evidence and was perfectly in
conformity with the latest pronouncement of superior Courts 2001 CLC 1013
Suit for declaration and possession - Plaintiffs claiming to be owners of suit land having
been purchased by their predecessor-in-interest, prayed for its possession and for
declaration of their title and in alternative having same matured by prescription - Suit was
decreed by Trial Court, but was dismissed by Appellate Court - High Court in revision set
aside judgment of Appellate Court and restored that of Trial Court - Important piece of
evidence in support of plaintiffs claim was copy of unregistered and unstamped agreement
to sell - Photo copy of agreement had been exhibited in evidence without directing
production of original document and without leave of court to lead secondary evidence
after proof of loss or destruction of original agreement, thus, were guilty of withholding
best available primary evidence - Since contents of such document purported to transfer
absolute ownership of land, same required compulsory registration irrespective of fact,
whether such document was agreement of sale or sale-deed - Such document being
inadmissible in evidence, no presumption as to its correctness or validity could arise - Such
document lacking necessary particulars in respect of identity of land and being
unregistered would not transfer any valid title in favour of plaintiffs - High Court, without
adverting to such aspect of the case, had proceeded to accept document as a valid deed of
transfer being thirty years old - Such document was executed on 6-10-1947 - Mutation was
recorded on 9-2-1957, but was cancelled on 25-2-1957 - Suit was filed on 3-12-1984 -
Such inordinate delay on plaintiff‘s part in bringing suit created doubts about bona fides of
their acts and genuineness of their cause - Plaintiffs were not sure as to which of Khasra
numbers was purchased by their predecessor - Construction of shops and production of
rent notes executed by tenants was not sufficient to identify land - Entries in record of
rights were showing predecessor of defendants as owners, whereas predecessor of
plaintiffs as tenant-at-will - If possession of plaintiffs was permissive in nature, then same
could not be in their own rights nor adverse to right/interest of real owners - Plaintiffs or
their own rights nor adverse to right/interest of real owners - Plaintiffs or their predecessor
had not remained in possession of land in their own right in pursuance of alleged
agreement - No assertion of open and hostile title adverse to interest of defendants was
made - Findings of High Court affirming that of Trial court were suffering from serious
misconstruction of evidence and misconception of law as evidence on record had not been
appreciated in its true perspective - Supreme Court accepted appeal, set aside
judgments/decrees passed by Trial Court and High Court and restored judgment/decree
passed by Appellate Court. PLD 2003 SC 410
Right of inheritance - Right of plaintiff in inheritance of her father being continuous right,
filing suit for declaration under Art. 120 of limitation Act, 1908, to claim inheritance would
start when right to sue accrued to plaintiff - Every entry in record of rights after every four
years was denial of right of plaintiff and every denial would furnish plaintiff fresh cause of
action, therefore, suit filed by plaintiff would be deemed to have been filed within
limitation. PLJ 2004 Lah. 205
Suit for declaration and possession:-- Petitioners claimed to be owners and landlords of
plot in dispute and on basis of entry in record of rights made in their favour, and
possession, but Courts below concurrently dismissed their suit without taking such entry in
consideration---Entries %n Revenue Record prima facie were good evidence of title unless
rebutted by some better evidence by other side---Opponents had produced only oral
evidence as against documentary evidence coming from public record produced by
petitioners---Entries in Revenue Records made since long in favour of petitioner, which
remained unrebutted, could not be ignored---Both Courts below having exercised their
jurisdiction illegally and with material irregularity by not taking into consideration
documentary evidence, like Revenue Record concurrent judgments of Courts below were
set aside by High Court in exercise of revisional jurisdiction and case was remanded to be
decided afresh after hearing parties in accordance with law. 1995 M L D 1458 Hazoor
Bakhsh and others v. Abdul Rashid and others 1987 SCMR 1845 and Mir Haji Ali Ahmad
Khan Talpur and others v. Government of Sindh and others PLD 1976 Kar. 316 ref.
Suit for declaration by plaintiff denying signatures on sale agreement---Amount of
consideration received by plaintiff having been deposited by him in his Bank account, Bank
official deposed that demand draft was deposited and credited in plaintiff's Bank account--Plaintiff
had
bounden
duty
in
presence
of
such
evidence
to
discredit
evidence
of
Bank
official
who
had
produced
originals
of
Bank
draft
and
deposit-slip
from
the
record
of
Bank-*Signatures
of
plaintiff
having
been
proved
to
be
on
sale
agreement
and
amount
of
consideration
having
been
proved
to
be
received
by him,
Trial
Court
had
rightly
non-suited
him---No
interference
was,
therefore,
warranted
with
findings
of
Trial
Court.
1998
M L
D
1908
Suit for declaration challenging gift:-- Suit challenging gift executed by his mother in
respect of her entire land in favour of defendant (her nephew) on the ground of fraud and
misrepresentation contending that she being a 'Pardanashin lady' could not manage her
land, but defendant was managing her land and he got a gift document executed in his
favour pretending the same to be a document for management of land - Trial Court as well
as Appellate Court dismissed the suit, but High Court in second appeal decreed the suit -
Validity - Undisputed position emerging from statements of witnesses was that disputed
land was located in the village, where defendant was residing and donor was not residing;
that disputed land was being looked after by defendant, who had obtained the same on
contract (Theka) from donor; that defendant after institution of suit had made serious
attempts to get the matter compromised and offered one Murabba of land for withdrawal of
suit; and that negotiation for compromise had taken place in presence of named persons -
All said witness had supported each other on all material points and they stood firm to the
test of cross-examination and nothing beneficial could be extracted from them - Even a
remote suggestion had not been made to said witnesses that defendant as donee was
owner of the land - No legal Justification existed to discard such evidence - Though
evidence of said witnesses could not be discussed by High Court at length, but the same
would have no substantial bearing on merits of the case as the conclusion derived by
means of impugned Judgment was free from any infirmity - Statement of defendant's
witness that gift deed had been executed at the behest of mother of plaintiff with the
consent of plaintiff was not believable as no sourceless person like the plaintiff would give
his consent to his mother for donating entire land in favour of her nephew (defendant) -
Had consent of plaintiff been obtained, then he would have signed the gift deed, which
would have been a solid proof for its execution, genuineness and authenticity whereof
could not be challenged - If gift was executed with consent of plaintiff, then what had
prompted him to file the suit, which was indicative of the fact that plaintiff was not aware
about the gift-deed and was not a consenting party - Mother (donor) could not have
deprived the plaintiff (her son), when there was nothing on record to show that they were
not on good terms or plaintiff was disobedient - Contents of gift-deed had never been read
to executants thereof - Gift-deed was not valid one and its authenticity was not above
board - Dishonest omissions in statement of defendant's witness, also appeared to be selfcontradictory
-
In view of defendant's assertion that disputed land had been transferred by means of a valid gift, there was absolutely no lawful Justification to take the plea of adverse possession and the only irresistible conclusion of which would be that no such gift deed had ever been executed-Neither any gift-deed whatsoever had been executed by mother of plaintiff nor conscious and unequivocal possession of land had been handed over
to defendant as he could not adduce any convincing evidence in that regard - Defendant
had failed to prove the execution of gift-deed by producing credible evidence - Trial Court
and Appellate Court had failed to examine the evidence on record in its true perspective -
PLD 2002 S.C581-Muhammad Ashraf v. Bahadur Khan 1989 SCMR 1390 ref.
Suit for declaration of title on basis of agreement to sell. Agreement to sell could not create
any interest in property in question, even if presumed to be genuine. Judgment, of Courts
below is dismissing plaintiffs suit was, thus, in accordance with provisions of S. 42, Specific
Relief Act, 1877. Plaintiffs only remedy was to file suit for specific performance of contract
as envisaged by S. 18 of Specific Relief Act, 1877. Plaintiff, however, would be well within
his right to compel vendee for enforcement of agreement but Court below did not consider
such aspect of case. Courts below have given concurrent findings of fact that agreement to
sell was executed by one of the defendant on his own behalf and on behalf of other
defendants as their attorney and that he had received specified amount at the time of
registration of agreement to sell. Such fact would bring plaintiffs case in area of equity,
thus, Courts below were empowered to grant such relief as Justice of case demanded and
for purpose of determining relief asked for whole of plaint must have been looked into so
that substance rather than form should be examined as per dictates of 0. VIII, R. 7 C.P.C..
Impunged Judgments were set aside, case was remanded to trial Court with direction that
permanent injunction be treated as suit for specific performance with permission to plaintiff
to amend plaint subject to payment of specified amount. Trial Court after receiving
amended pleadings from parties, framing additional issue, opportunity of evidence to
parties, decide the suit in accordance with law and merits as suit for specific performance.
P.L.J.2000 Lah. 1362.
Suit for declaration on the basis of exchange.- Disputed property was alleged to be
transferred to the plaintiff in exchange with the defendants - Plaintiff failed to produce any
exchange deed duly signed by both the defendants - Trial Court, dismissed the suit
whereas the Lower Appellate Court reversed the Judgment in appeal and decreed the suit -
Defendant assailed the Judgment of Lower Appellate Court before High Court in its
revisional Jurisdiction - High Court allowed the revision and the order of the Trial Court was
restored - Validity - One of the defendants was not found to have transferred the suit land
in exchange, the entire transaction of exchange was not capable of being given effect to,
therefore, whole of the transaction was to be struck down - Findings recorded by High
Court did not suffer from any legal infirmity calling for interference by Supreme Court -
Leave to appeal was refused. 2001 SCMR 755
Suit for declaration on the basis of Gift - Suit-land being mortgaged, constructive
possession was sufficient for satisfaction of necessary conditions required for a valid gift -
Donor and donee also being owners in same Khewat, mortgagee had no legal right to
challenge the gift deed - Contention that gift deed was not complete as possession was not
delivered to the donee, was repelled because taking possession of subject-matter of gift by
donee either actually or constructively would complete the gift. 2002 CLC 1121 Talib
Hussain v. Babu Muhammad Shafi and 2 others PLD 1987 Lah.4 ref.
Plaintiff challenged gift executed by his mother in respect of her entire land in favour of
defendant (her nephew) on the ground of fraud and misrepresentation contending that she
being a ‗Pardahnashin‘ lady' could not manage her land, but defendant was managing her
land and he got a gift document executed in his favour pretending the same to be a
document for management of land - Trial Court as well as Appellate Court dismissed the
suit, but High Court in second appeal decreed the suit - Validity - Undisputed position
emerging from statements of witnesses was that disputed land was located in the village,
where defendant was residing and donor was not residing; that disputed land was being
looked after by defendant, who had obtained the same on contract (Theka) from donor;
that defendant after institution of suit had made serious attempts to get the matter
compromised and offered one Murabba of land for withdrawal of suit; and that negotiation
