Execution of Declaration

Citation Name : 2007 PLD 61 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MAKHDOOM MUHAMMAD MUKHTAR, MEMBER

PROVINCIAL ASSEMBLY, PUNJAB
Side Opponent : PROVINCE OF PUNJAB through Principal Secretary to Chief
Minister, Punjab, Lahore
----Art. 199---General Clauses Act (X of 1897), S.21---Constitutional petition---

Public welfare scheme duly approved and put in operation---Locus poenitentiae,
principle of ---Effect---Doctrine of "legitimate expectation" and "promissory
estoppel"---Applicability---Power of Chief Minister---Extent---Punjab
Government/ respondent approved and launched development scheme for
construction and widening of metalled road for the uplift of the areas falling in
constituency of petitioner/Member Provincial Assembly---Petitioner sought
declaration and direction to the effect that development scheme which was duly
approved by Chief Minister and Governor of the Province and being in process
of execution, the same was to be implemented and that scheme could not be
dropped or substituted---Authorities contended that Chief Executive of Province
could approve and annul any scheme at anytime as there was no embargo on
his exercise of such power---Validity---Scheme having been approved by
Governor and Chief Minister, included in Annual Development Programme,
budget allocations made and orders issued therefore, scheme was not to be
dropped, cancelled or substituted---Scheme had received due approval and
necessary orders had become effective, therefore, it was too late for Authorities
concerned to cancel or substitute the same---Cancellation or substitution of
scheme was neither permissible under law nor consistent with good governance
rule---Convenience, public good and welfare of people being the main objective
of democratic set-up and any such scheme aimed at development of area was to
be implemented and carried out---Principle of locus poenitentiae embodied in
S.21 of General Clauses Act, 1897, was not to permit cancellation/substitution
of such approved scheme where decisive steps had been taken by the highest
functionaries of the Province---Approval of scheme had given rise to hopes and
expectation not only to petitioner but to the local population about its
implementation---Doctrine of "legitimate expectation" and "promissory estoppel"
were stated to have roots in "fairness"---Public authority where conducted itself
in a manner so as to create a legitimate expectation that a certain course was to
be followed then it would be unfair if the Authority was permitted to follow a
different course to the detriment of one who entertained the expectation,
particularly if he acted on it---Reasonableness, fairness and justness all
demanded implementation and expectation of first scheme duly approved and
put in operation---Petitioner having not sought annulment of any other scheme
and sought implementation of scheme already approved, constitutional petition
was accepted to the extent that scheme was to remain operative and was to be
executed.
Citation Name : 2007 CLD 175 KARACHI-HIGH-COURT-SINDH

Side Appellant : SAUDI PAK COMMERCIAL BANK LTD.
Side Opponent : A.H. INTERNATIONAL (PVT.) LTD.
---Ss. 16(1), 23(1)(2) & 9(5)---Civil Procedure Code (V of 1908), O.XXXVIII, R.5
& S.151---Transfer of Property Act (IV of 1882), S.52---Suit for recovery of bank
loan---Application for attachment of property before pronouncing judgment---
Scope---Transaction of sale not made to defeat or delay prospective decree or to
defeat right of creditors---Effect---Plaintiff Bank filed suit for recovery of loan
amount against defendants and also joined different banking-companies as
defendants having Pari Pasu charge on assets of the defendants---During
pendency of suit plaintiff filed application under S.16 of Financial Institutions
(Recovery of Finances) Ordinance, 2001, read with O. XVIII, R.5 & S.151, C.P.C.
to attach property of defendants---Plaintiff contended that on having
information that defendants intended to sell property in question, notice was
served on them to the effect that sale was in violation of S.53 of Transfer of
Property Act, 1882, as defendants were heavily indebted to plaintiff and that in
case property was not attached it was to become difficult for plaintiff to adjust
liability---Defendant Banking Company argued that with its permission
defendants agreed to sell property in question on which four defendant-Banking
Companies had their Pari Pasu mortgage charge; that by sale of said property,
defendants were to be in a position to adjust part of their liabilities; that
Page No. 1 of 61
property in question was not mortgaged with plaintiff-Bank and that plaintiff-
Bank had only 7% share in total liability against defendants, hence plaintiff was
not entitled for attachment of property in question---Validity---Under S.16(1) of
the Financial Institutions (Recovery of Finances) Ordinance, 2001, financial
institution could after filing of suit, file an application to restrain customer from
transferring, alienating, parting with possession of property which was
mortgaged, pledged, hypothecated or assigned or which was subject to any
obligation---Since property in question was neither under mortgage of plaintiff,
nor plaintiff had any charge over it nor same was subject to any obligation in
favour of plaintiff, therefore, application under S.16(1) of the Ordinance was not
maintainable---Under Ss.16, 23(1) & 23(2) of the Financial Institutions
(Recovery of Finances) Ordinance, 2001, before pronouncement of judgment
and interim decree or otherwise, Plaintiff-Bank could ask for attachment of
property of customer over which it had charge and customer could not transfer
it but after passing of decree---Customer could not deal with any of his property
except with prior written permission of Banking Court---Bank, however, could
apply for attachment of property other than one over which Bank had charge
under. O.XXXVIII, R.5, C.P.C.---Under S.53 of Transfer of Property Act, 1882,
transaction for sale of immovable property by debtors could not be held void or
voidable transaction at the option of creditors, if the same was carried out in
normal course of business bona fide and not with intent to defeat or delay
creditors-Plaintiff in order to bring his case within ambit of S.53 of Transfer of
Property Act, 1882, was to establish that transfer of property was made with
intent to defeat right of creditors-Plaintiff in order to attract provisions of S.53
of Transfer of Property Act, 1882, should have filed suit seeking declaration that
transaction was void but no such relief had been asked for by plaintiff in his
suit---Notice for sale of property in question was. published much prior to filing
of suit and as such it did not lie in mouth of plaintiff to say that defendants
were disposing of property with intent to obstruct or delay execution of any
decree that might be passed against them---Object of O.XXXVIII, R.5, C.P.C.
was not to paralyse the normal and bona fide transaction and unless it was
established that defendants were about to dispose of property with intent to
defeat or delay decree that might be passed, normally ,Court was not to pass
order for attachment of property before judgment---Defendant Banking
Company's charge on property was prior in time to that of plaintiff's and on
principle of qui prior est tempore portior estjure (he has a better title who was
first in time), plaintiff had no prima facie case---Balance of convenience also
was in favour of defendants as by disposal of mortgaged property, outstanding
dues of defendant Banking Companies who had charge on property could be
adjusted, whereas to restrain sale of property was to result in increasing
liabilities of defendants---Application for attachment of property was dismissed.
Citation Name : 2006 SCMR 1470 SUPREME-COURT

Side Appellant : MUHAMMAD SADIQ
Side Opponent : MUHAMMAD RAFIQ
---Ss. 8 & 42---Constitution of Pakistan (1973), Art.185(3)---declaration of title

and recovery of possession ---Ownership, proof of ---Concurrent findings of
facts by two Courts below-- Respondent claimed to be owner on the basis of
registered sale-deed dated 13.8.1946, executed by the original owner and
sought recovery of possession of the suit property, while petitioner stated to be
the owner on the basis of agreement to sell dated 10.12.1946, executed by son
of the original owner and sought declaration to such effect---Suit filed by the
respondent was dismissed by the Trial Court and that of the petitioner was
decreed---Appellate Court reversed the findings of Trial Court and decreed the
suit of the respondent and that of the petitioner was dismissed---Judgments
and decrees passed by Appellate Court were maintained. by High Court---
Validity---Both the Courts recorded concurrent findings of fact---Petitioner
failed to show how the son of original owner, from. whom he was claiming the
execution of agreement to sell, was the owner of suit property---No evidence, as
strong as that of the respondent, could be produced by the petitioner---
Page No. 2 of 61
Respondent had fully proved the execution of registered sale-deed by the
owner---Even agreement to sell executed by the son of the owner was
subsequent to the registered sale-deed---Judgment passed by High Court did
not suffer from any legal infirmity so as to warrant interference by Supreme
Court---Leave to appeal was refused.
Citation Name : 2006 MLD 47 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : Mst. JUMA
Side Opponent : UMAR AKHTAR
---Ss. 122 & 123---Specific Relief Act (I of 1877), S.42---Suit for declaration
---execution of gift-deed---Inheritance---Plaintiff was one of the sisters of
defendants---Both plaintiff and defendants were not only daughter and son of
original owner of property in dispute which was inherited property, but another
and other sisters of parties were also alive---One of the defendants claimed that
property in dispute was gifted to him by original owner in his life time---Alleged
original gift-deed was neither produced at time of evidence, nor was exhibited
by any of the parties---Plaintiff had challenged execution of gift in favour of said
defendant alleging that original owner of suit property, died in 1969, whereas
Revenue Record was prepared in the years 1977-78 and alleged gift deed, even
if proved genuine, would have been of no use to said defendant because it was
allegedly executed in 1954, when defendant was not even in existence,
document written at a time when defendant was not born, could not entitle,
non-existent and non-living person and could not disentitle existing and living
persons---Plaintiff, her mother, other sisters and defendant being legal heirs of
deceased, in normal circumstances, would have inherited property of
deceased/original owner---Mother and other sisters of the plaintiff though had
given affidavit in favour of defendant but plaintiff had not waived/relinquished
her share in the property in favour of defendant---Name of plaintiff was not
mentioned in the Revenue Record from the very beginning after death of the
original owner---Even if Revenue Authority had failed to prepare correct record,
non-entry of name of plaintiff who otherwise was entitled to inheritance, would
not disentitle her from such inheritance and would not debar her from claiming
rights in the property on basis of inheritance---Courts below had erred in
properly evaluating and appreciating evidence on record and had failed to
correctly apply law of inheritance---Plaintiff being daughter of original owner,
was entitled to her Sharai share of inheritance in the suit property along with
defendant, her mother as well as her sisters---Impugned judgments and decrees
of Courts below, were set aside in revision and suit was decreed as prayed for
by plaintiff.
Citation Name : 2006 YLR 2900 LAHORE-HIGH-COURT-LAHORE

Side Appellant : ABDUL QADEER
Side Opponent : ASHIQ ALI
--Ss. 42 & 8---Qanun-e-Shahadat (10 of 1984), Arts.79, 117 & 118---Suit-

land---Registered sale-deed, execution of ---Proof ---No presumption is attached
to a registered document regarding its execution when that document has been
challenged as forged one and its execution is disputed---Defendant being
beneficiary of such instrument, was under an obligation not only to have proved
the execution of the document but also that the nature of transaction contained
in document was fully understood by one of plaintiffs lady who was admittedly
an illiterate Parda observing lady but he failed to comply with the requirements
of law on this aspect---One of the marginal witnesses stated that instead of
sale-deed, a mortgage deed was executed between parties while the other
marginal witness was not examined by the defendant giving rise to presumption
Page No. 3 of 61
that had he appeared he would not have supported the version of defendant---
Payment of consideration was not proved---Plaintiffs who were out of possession
of suit-land, rightly asked for declaration of the title and for possession as S. 39
of the Specific Relief Act, 1877 was not attracted in circumstances---Since plea
of fraud and misrepresentation had been taken by plaintiffs, limitation would
have been deemed to start from the date of knowledge---Suit was therefore held
to have been filed within time.
Citation Name : 2006 CLC 1863 LAHORE-HIGH-COURT-LAHORE

Side Appellant : ALLA-UD-DIN BUTT through L.Rs.
Side Opponent : QAMAR-UD-DIN BUTT
--S. 42---Arbitration Act (X of 1940), S.33---Civil Procedure Code (V of 1908),

S.12(2)---Contract Act (IX of 1872), S.15---Suit for declaration ---Dispute over
ownership of shop---Agreement between parties arrived at through mediation of
respectables that shop belonged to them in equal share---Defendant got such
agreement annulled from Civil Court through ex parte proceedings under S.33
of Arbitration Act, 1940---Acceptance of plaintiff's application under S.12(2),
C.P.C., for setting aside such order of Civil Court---Defendant, instead of
pursuing the matter further, withdrew his application under S.33 of Arbitration
Act, 1940---Suit by plaintiff on basis of agreement for declaring him as owner of
shop to the extent of one half share---Defendant's plea was that his signatures
on the agreement had been obtained on pistol point, thus, not binding upon
him---Validity---Defendant admitted his signatures on agreement and those of
witnesses and mediators---Defendant in application under S.33 of Arbitration
Act, 1940 had not given full particulars of coercion i.e. about pistol point, but
had introduced element of pistol point for the first time during evidence without
proving same through independent evidence---Regarding place of execution of
agreement, defendant's statements during proceedings under S.33 of
Arbitration Act, 1940 and S.12(2), C.P.C. were contradictory--Defendant, had
not alleged that during proceedings under S.12(2), C.P.C. his signatures on
agreement were obtained on pistol point---Defendant by withdrawing
application under S.33 of Arbitration Act, 1940 had admitted validity of
agreement---Such agreement was neither arbitration agreement nor award,
thus, could not be enforced through arbitration---Defendant failed to discharge
burden to prove his sole and specific defence of coercion applied upon him.

Side Appellant : AABAD ALI
Side Opponent : MUHAMMAD YAHYA
---Ss.12 & 42---Civil Procedure Code (V of 1908), O. XLI, R.2 7--Qanun-e-

Shahadat (10 of 1984), Art.79---Suit for specific performance of contract and
declaration ---Documents--- execution --- Additional evidence---Rapat
Roznamcha Waqiati, acknowledgment of payment of consideration and affidavit
were produced in evidence to prove agreement to sell and sale---Witnesses were
not produced as required by Qanun-e-Shahadat---Scribes of the documents
had admitted that sale consideration was not paid in their presence---Affidavit
was attested by a Notary Public and not by Oath Commissioner--- Thumb-
impression/ signatures of the executant were not proved by comparison and
expert opinion---Plaintiff having failed to prove his case, appeal was dismissed
in circumstances.
Page No. 4 of 61
Side Appellant : Lt.-Col. M. AHSAN-UL- HAQ
Side Opponent : Mst. MUMTAZ BEGUM
---Ss.16, 21 & O. VII, R.10---Specific Relief Act (1 of 1877), S.42---Return of

plaint---Place of suing---Objections to jurisdiction---Plaintiff filed suit for
declaration that special power of attorney allegedly executed by a lady
predecessor-in-interest of the plaintiff was based on fraud, illegal and void ab
initio---Special power of attorney was about the land situated at a place
different to the place where the document was executed and registered---Suit
was filed at the place of execution and registration of document---Suit was
decreed by the Trial Court---Appellate Court set aside the judgment and decree
of the Trial Court and returned the plaint under O. VII, R.10, C. P. C. for
presentation to the proper Court where immovable property was situated---
Validity---No objection as to place of suing could be allowed by Appellate or
revisional Court unless such objection was taken in the Court of first instance
at the earliest possible opportunity before the settlement of issues---Where the
defendants actually and voluntarily resided in the territorial jurisdiction of the
Court where the suit was instituted the objection to territorial jurisdiction
would not prevail---Appeal was allowed, judgment and decree of the First
Appellate Court was set aside and case was remanded to be decided afresh by
giving findings on all issues.

Side Appellant : PIRAN DITTA
Side Opponent : Mst. KUNDAN
---Arts. 76, 77 & 85(5)---Dispute as to execution of registered document---

Original registered document, not produced---Effect---Secondary evidence,
production of ---Scope---Plaintiff filed suit seeking declaration that plaintiff was
owner in possession of suit-land on the basis of registered sale-deed---Plaintiff
could not produce registered sale-deed on ground that it was .lost, attesting
witnesses had died and therefore plaintiff could only produce its copy in
evidence---Defendants contested suit mainly on point that as original sale-deed
had not been produced in Court, its copy was inadmissible in evidence---Trial
Court decreed suite and appeal filed there against by defendants was dismissed
by Appellate Court---Validity---Under Arts. 76 and 77, Qanun-e-Shahadat,
1984 original registered document had to be produced as primary evidence by
plaintiff---Where original document was not available permission of Court was
to be sought by plaintiff for leading secondary evidence to prove document
itself---No presumption of correctness attached to a registered document once
its execution was disputed---Under Art.85(5) of Qanun-e-Shahadat, 1984 a
registered document ceased to' be a public document, the moment its execution
was disputed.. While admitting copy of original document in evidence both
Courts below acted without jurisdiction---Case was remanded by High Court.

Side Appellant : ALLAH BAKHSH
Side Opponent : Mst. BHAGAN
--S.42---Limitation Act (IX of 1908), S.18---Civil Procedure Code (V of 1908),

S.11---Qanun-e-Shahadat (10 of 1984), Arts.117, 118 & 163---Suit for
declaration ---Suit was decreed and decree upheld in appeal---execution of sale-
deed---Proof ---Contention of defendants was that earlier suit filed by three of
present plaintiffs was withdrawn on statements of parties and plaintiffs had
acknowledged the validity of disputed sale-deed---Date of knowledge of disputed
sale-deed was a question of fact which was supported by evidence, therefore,
subsequent suit filed by plaintiffs was not time-barred---Mere filing of earlier
suit by some of the plaintiffs who had no nexus, whatsoever with the suit
Page No. 5 of 61
property, could not have possibly be operated as res judicata in subsequent
proceedings because nothing was on record to prove that owner of land/father
of plaintiffs' was ever served or was otherwise shown to have had knowledge of
disputed sale-deed---Nature of earlier suit and manner in which it was
withdrawn, suggested absence of bona fides---Witnesses produced by plaintiffs
having testified on oath that no sale-deed had been effected between parties,
burden of proof , had shifted upon defendants, who failed to discharge the same
as they neither produced marginal witnesses nor the testimony of one of
defendants could be given weight in absence of affirmative evidence---Findings
of Courts below were thus not legally sustainable---Dismissal of suit to the
extent of three plaintiffs who had accepted the validity of disputed sale-deed in
previous suit, was affirmed, while suit to the extent of rest of plaintiffs was
decreed.
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Side Appellant : GHULAM RASOOL
Side Opponent : Mst. ANARAN BEGUM (ANAR BIBI) by L.Rs.
---S. 42---Colonization of Government Lands (Punjab) Act (V of 1912), S.19---

Suit for declaration to challenge the gift deed allegedly executed by father of
plaintiff in favour of defendant (step-mother of the plaintiff)---Dismissal of suit
and appeal---Gift deed against the lady---Validity---Impugned gift deed was
neither duly stamped nor same was registered, therefore, the same could not be
purported to effect the conveyance from executant to defendant---Notary Public
who had attested the deed, in his statement, admitted that he made no entry of
the notarization in his register and that he did not know the executant nor he
had obtained executant's signature---Most important point was that impugned
documents were attested a day after their execution ---Furthermore the
unwarranted absence of donee/legatee from witness-box was sufficient for
purpose of concluding that execution of documents was not proved---No
evidence was on record in proof of alleged gift but Courts below failed to
consider said material aspects of the case---Concurrent findings were set aside
by High Court in circumstances.

Side Appellant : Mst. KANEEZAN
Side Opponent : MUHAMMAD RAMZAN
---S. 42---Suit for' declaration of title---Gift---Proof ---Non-delivery of

possession---Effect---Plaintiff and defendant were real daughter and son of the
deceased owner of the suit-land---Plaintiff sought cancellation of gift deed on
the ground that the disputed gift deed was a result of fraud and no possession
was handed over to the defendant after alleged gift---Trial Court decreed the
suit in favour of plaintiff but Appellate Court reversed the findings and
dismissed the suit filed by plaintiff---Validity---Appellate Court misread the
Page No. 6 of 61
evidence of witness who had stated that husband of plaintiff remained in actual
physical possession of the suit-land even after two years of the execution of gift
deed---Appellate Court was also not correct in holding that effect of Khasra
Girdawari produced by plaintiff was to record the ownership of defendant
showing her husband to be a tenant at will under defendant---Ownership of
defendant could become complete only upon the completion of gift in his favour
which could not be considered to be a complete gift in absence of transfer of
actual physical possession to him---It would have been different if deceased
owner continued to be entered as in possession in Khasra Girdawari
subsequent to making of gift---High Court in exercise of revisional jurisdiction,
set aside the judgment and decree passed by Appellate Court and that' of trial
Court was restored.

Side Appellant : MUHAMMAD MALIK
Side Opponent : Mst. KHURSHID BIBI through Legal Heirs
---S.42---Suit for declaration of title---Concurrent findings of fact by the Courts

below---Dispute between principal and attorney-Non-payment of balance
consideration amount after registration of sale-deed---Effect---Plaintiff alleged
that general power of attorney on the basis of which sale-deed was registered in
favour of defendant, was obtained with fraud and further alleged that she did
not receive any consideration amount---Both the .Courts concurrently decided
the matter in favour of plaintiff---Validity---Both the Courts below had given
undue importance and weightage to the contradictions as to whether the
amount was paid in full before Registrar at the time of execution of sale-deed or
otherwise---Once the execution of sale-deed was proved through attorney, part
payment or non-payment of consideration amount would not invalidate the sale
itself---Plaintiff could sue her attorney for the recovery of sale proceeds---
execution of power of attorney was not denied but a plea had been taken that
the same was obtained for lease---No evidence of fraud was produced by
plaintiff and the defendant could not be made to suffer on account of any
dispute, between the principal and attorney---Principal could sue her attorney
for damages if it was proved that he acted against the instructions or interest of
the principal---Judgments and decrees of both the Courts below were set aside
and the suit was dismissed.

Side Appellant : AMIN ALI
Side Opponent : MUHAMMAD SHAKEEL
---Ss. 42 & 55---Pakistan (Administration of Evacuee Property) Act (XII of

1957), S.10(3) (b)---Punjab Development of Damaged Areas Act (XIV of 1952),
S.6---Suit for declaration relating to entitlement of plot which included evacuee
property---Dismissal of suit and appeal---Contention of plaintiffs was that
Courts below proceeded on erroneous legal and factual premises while deciding
the case---Property in dispute had been acquired by Development Authority
with approval of Federal Government for purpose of implementing a Scheme
sanctioned by Provincial Government under section 6, Punjab Development of
Damaged Areas Act, 1952---Validity---Record showed that disputed property
was exempted in favour of plaintiffs vide registered agreements to sell---Transfer
of such property to defendants by Rehabilitation Authority under Pakistan
(Administration of Evacuee Property) Act, 1957 was illegal---Observation of
Appellate Court, that an agreement to sell alone did not create any right in
favour of plaintiffs unless a sale-deed was executed in their favour, was not
proper as father of plaintiff had paid entire amount due to the Development
Page No. 7 of 61
Authority in 1964---execution of a sale-deed was a mere ministerial act and did
not, in any manner, deprive plaintiffs of their right in disputed property---Only
the Development Authority had right to raise such contention but it had not
taken any objection on that score---Development Authority having
acknowledged, that the title in disputed plot vested in plaintiffs there was no
need for plaintiffs to seek specific performance of agreement to sell against the
Development Authority nor the suit for declaration filed by plaintiffs was time-
barred but Appellate Court wrongly found that plaintiffs were obliged to file a
suit for specific performance instead of declaration and that declaratory suit
filed by plaintiffs was time barred---When testimony of the functionary of
Development Authority was that disputed plot was included in the Scheme,
Courts below wrongly found that there was no documentary evidence to prove
that the disputed plot was included in the Scheme.

Side Appellant : MAHMOOD ALI
Side Opponent : ABDUL LATIF
----S. 42--Suit for declaration ---Registered gift deed---Allegation of fraud---Suit

was dismissed but appeal was allowed on the ground that marginal witnesses of
gift deed had not been produced to prove execution thereof ---Whether
presumption of truth was attached to gift deed in question---Plaintiff had stated
that about 6 or 7 years back, he had gone to the Court for executing a
document---Registered gift deed thins had stood fully proved through the
testimony of plaintiff himself who appeared as witness coupled with the fact
that gift deed in question was a duly registered document and a presumption of
authenticity as to its execution was attached to it---Appellate judgment and
decree were set aside and that of Trial Court were restored by High Court.

Side Appellant : GHULAM SARWAR
Side Opponent : MUSHTAQ AHMAD
---S. 42---Suit for declaration by sisters against brother---Sale of sisters' land

by brother on basis of registered power of attorney got executed from them on
some other pretext---Proof ---Neither Sub-Registrar nor scribe of document
deposed that executants thereof were known to them---Attesting witness of
document was the ultimate beneficiary, while identifier was his son---None of
such witnesses deposed that document was read over to ladies---Held, brother
had failed to prove valid execution of power of attorney by sisters.

Side Appellant : ABDUL AZIZ alias GHASEETAY KHAN
Side Opponent : MUHAMMAD LATIF KHAN through Legal Representatives
---Ss. 8 & 42---Transfer of Property Act (IV of 1882), S.122---Suit for

possession and declaration ---execution of gift, proof of -Real brother of plaintiff
died leaving behind a daughter and a widow---Daughter of deceased had landed
property which was allegedly mutated by her through gift mutation attested in
favour of predecessor in-interest of defendant who was maternal uncle of
daughter of deceased---Plaintiff through suit for declaration with possession,
Page No. 8 of 61
had challenged alleged mutation of gift and claimed his share of inheritance
being real paternal uncle of executant/daughter of his deceased brother---Trial
Court decreed the suit, which was set aside in appeal---Plaintiff had filed
revision petition against judgment of Appellate Court---Defendant, who was real
beneficiary of the impugned mutation, was required under the law to have
established both incidents separately i.e. firstly as to when alleged gift was of
fered and accepted coupled with delivery of possession and secondly, the
attestation of mutation before Tehsildar---Defendant himself did not specify the
time when alleged gift was of fered to him and was accepted by him and two
witnesses produced by defendant had categorically denied the fact of attestation
of mutation and of fer of gift---Further neither the of ficials regarding
completion of mutation had been produced nor two attesting witnesses had
supported version of defendant ---Such evidence could not form a basis for a
finding in favour of defendant---Endorsements made by Revenue of ficers
without their production in witness-box, could also not be relied upon---
Defendant, in circumstances, had failed to establish both aspects of the case
i.e. fact of gift and attestation of mutation--Judgment and decree passed by
Appellate Court was set aside and that of the Trial Court was restored.

Side Appellant : AHMAD alias AHMAD YAR
Side Opponent : AHMAD
--S. 42---Qanun-e-Shahadat (10 of 1984), Art.59---Suit for declaration on basis

of non-registered sale-deed of land in dispute---Suit was dismissed by Trial
Court but decreed on appeal---Plaintiff moved application for comparison of
defendant's thumb-impression appearing on impugned document-Question was
as to whether Appellate Court had rightly presumed that had the thumb-
impressions been sent for comparison, the report would have been against the
defendant---Validity---No evidence was available on record to prove execution of
impugned sale-deed by defendant in favour of plaintiff-One of the two attested
witnesses of disputed document did not state anything about execution of the
same by defendant while the other witness had not been produced by plaintiff
and no reason was given for his unwarranted absence---Scribe of impugned
document, in his statement, admitted than he did not personally know the
defendant---Merely on filing of application for comparison of thumb-
impressions of defendant the observation of appellate court that had the prints
been sent for comparison the report would have been against defendant was
perverse-Impugned judgment and decree passed by appellate court was set
aside and that of Trial Court was restored by High Court.

Side Appellant : MUHAMMAD RAMZAN
Side Opponent : Mst. SATTAN
---S.42---Suit for declaration ---Lack of consequential relief of possession---

Effect---Where plaintiffs and defendants were co-sharers when upon intervening
can alleged sale-deed which affected their joint ownership, the plaintiffs while
seeking declaration were not bound to ask for consequential relief of possession
because when the sale-deed in question was declared to be null and void, the
original position of plaintiffs as the co-sharers stood restored and they were to
be considered to he in joint possession of suit property---1f one party had
denied the very execution of sale-deed and the other party claimed it to be valid
then the plea of denial of such execution and plea of fraud and
misrepresentation at the same time taken by plaintiffs were not inconsistent
because the elements of fraud and misrepresentation necessarily is an in-built
Page No. 9 of 61
issue, which required resolution by Court---Court of fact has prerogative to
appreciate the evidence and such appreciation cannot be interfered with in the
revisional jurisdiction for the reason that on the basis of same evidence, some
other conclusion could have been drawn---Courts below had committed no
error of jurisdiction or material irregularity in passing the impugned decisions.

Side Appellant : Mst. SHARMAN
Side Opponent : Syed ALI HUSSAIN
--O.XIV, R.1, O.XVIII, Rr.1 & 3 & O.XLI, Rr.27 & 33 & Ss.115 & 151---Specific
Relief Act (I of 1877), S.42---Suit for declaration ---Relevant and material fact in
issue, significance of -Non-appearance of the plaintiff in affirmative evidence---
Effect---Allowing additional evidence before Revisional Court---Legality---
Revisional jurisdiction---Scope---Suit for declaration that he was the owner of
the suit-land and that the alleged power of attorney executed by him in favour
of the defendant, on the basis of which the latter was alienating the suit
property was void due to the fact that the former was a minor at the time of
execution --- Said suit .was dismissed by the Trial Court, however, an appeal
filed by the plaintiff against the same was allowed and the suit decreed---
Revision petition was filed by the defendants with an application to file
additional evidence on the point of whether the plaintiff was a minor at the time
of execution of the power of attorney---Validity---Main ground taken by the
plaintiff in his plaint for avoidance of execution of the disputed power of
attorney as well as the sale was that of being a minor at the time of execution
and this was a relevant and material fact in issue arising out of the pleadings of
the parties-

Side Appellant : AKHTAR ALI
Side Opponent : Mst. HALEEMA BIBI
--S.42---Suit for declaration ---Transfer of land under a power of attorney to a

relative, legality of ---Land was inherited by plaintiffs along with the defendant
as joint owners---Suit was filed by the plaintiffs sisters alleging that their
defendant brother had transferred the said land in favour of his defendant son,
by representing himself as the general attorney of the plaintiffs---Suit of the
plaintiffs was decreed by the trial Court---Appeal filed by the defendants was
dismissed by the Appellate Court---Contention of the plaintiffs in revision was
that all efforts were made to produce the witness of power of attorney but could
not be produced due to his absence from the village---execution of power of
attorney was proved and the transactions were lawful and with consideration---
Contention of the plaintiffs that there was no evidence that the defendant
brother was even appointed as an attorney by them, or he proceeded to transfer
the land to his defendant son after consultation with the plaintiffs or any
consideration was ever paid to the plaintiffs for the same---Validity---
Documentary evidence and the testimony of witnesses on record showed that
neither the plaintiffs were consulted nor were informed before the defendant
transferred the said land in favour of his son---Both the defendant and his son
during evidence, had falsified each others' statements in matters of
consideration---Mere fact that a person was authorized by means of recital in
the power of attorney to alienate the land would not render the transaction
entered into by him to be with lawful authority particularly where he proceeded
to transfer the land to his own close relative, which in the present case was his
son---Petition was dismissed in circumstances.
Page No. 10 of 61
Side Appellant : Chaudhry ALLAH RAKHA
Side Opponent : NOOR DIN
---S. 42---Civil Procedure Code (V. of 1908), O.XIV, R.5, O.XXII, R.4(4) & O.XLI,
R.25---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---Suit for declaration to
the effect that decree obtained by defendants was fraudulent and inoperative
against the rights of plaintiff---Framing of an additional issue at appellate
stage---Validity---Defendants could not assert any prejudice on framing an
additional issue at appellate stage in view of judgment passed in civil revision
whereby Appellate Court was directed to decide additional issue relating to the
genuineness of power of attorney allegedly executed by plaintiff in favour of
defendants---Defendants were unable to deny that said additional issue
encapsulated the factual controversy between parties---After the testimony of
plaintiffs, who denied the execution of any power of attorney onus of proving
the issue shifted upon defendants but neither they summoned the alleged
attorney as witness through Court nor did they avail any such independent
means as comparison of handwriting/thumb-impression through which they
could have proved alleged power of attorney--

Side Appellant : Mst. ALLAH RAKHI
Side Opponent : MUHAMMAD SIAN
---S. 42---Transfer of Property Act (IV of 1882), Ss.122 & 123---Suit for
declaration ---execution of gift---Claim of plaintiff was that she was owner of
suit property and was in possession of property as a co-sharer along with
defendants who were her brothers and defendants being in cultivation
possession, had been making payment of share of produce to her till 1977 and
later on they refused to make payment of share of produce to her---Defendants
had alleged that suit property stood gifted in their favour---Plaintiff had totally
denied making of any gift in favour of defendants and insisted that she was
owner and was in possession of property in dispute as a co-sharer---Trial Court
dismissed suit on the ground that it was barred by time, but Appellate Court
below set aside judgment and decree of Trial Court and decreed suit of
plaintiff--Defendants could not produce in evidence any person who had
attested mutation of alleged gift in their favour, whereas plaintiff, apart from
herself, produced two independent witnesses, who in very clear terms, had
stated that defendants had been paying share of produce of land to her and
thereafter they stopped making payment of share of produce to plaintiff---
Plaintiff had clearly submitted that she along with defendants/her brothers was
owner of property in dispute and that defendants had throughout been making
payment of share of produce to her---Defendants could not prove execution of
gift of suit property in their favour by whatever evidence-Judgment and decree
passed by Appellate Court was in consonance with law---In absence of any
misreading, non-reading, illegality, jurisdictional defect and material
irregularity, judgment and decree of Appellate Court could not be interfered
with by High Court in exercise of its revisional jurisdiction.
Citation Name : 2006 MLD 1016 LAHORE-HIGH-COURT-LAHORE

Side Appellant : Syed ZAHID HUSSAIN through Special Attorney
Side Opponent : Syed MUHAMMAD HUSSAIN
---Art.79---Specific Relief Act (I of 1877), S.42---Suit for declaration for

ownership and possession of the suit property with allegations that gift-deed
was forged, fictitious, illegal and void and inoperative qua his rights---Suit was
Page No. 11 of 61
dismissed by the Trial Court, but decreed by Appellate Court---Validity---Gift-
deed was registered document and donor had lived 10 years after the execution
of gift-deed and had not challenged the same---Donor was issueless---Widow
and brother of plaintiff were his legal heirs---Widow had supported the gift-
deed---Scribe and one marginal witness was produced to prove execution and
witnesses to prove of fer and acceptance were produced---Possession was
proved by oral as well as by documentary evidence---No need was to produce
two attesting witnesses as document was registered and executant had not
denied the same---Evidence produced by the plaintiff was not sufficient---
Defendant had established three ingredients of valid gift---Appellate Court did
not opt to meet the points evolved in well-reasoned judgment of Trial Court---
Judgment and decree of the Appellate Court were set aside and those of Trial
Court stood revived in circumstances.

Side Appellant : MUHAMMAD YOUSAF
Side Opponent : MUHAMMAD SHARIF
--Ss.39 & 42---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79--Suit for

declaration of title---Registered sale-deed, cancellation of ---Transaction---Onus
to prove---Plaintiff sought cancellation of sale-deed on the ground that his
predecessor-in-interest was an 'illiterate, Pardahnashin lady haying no
independent advice and the disputed sale-deed was the result of fraud---Trial
Court decreed the suit in favour of plaintiff but Appellate Court allowed the
appeal and dismissed the suit---Validity---At least two witnesses were required
to prove a transaction under Arts.17 and 79 of Qanun-e-Shahadat, 1984---
Defendants produced only one marginal witness who was not aware of the
details and had conceded that the predecessor-in-interest of plaintiff was not
accompanied by any person at the time when the sale-deed was being authored
by petition writer---Predecessor-in-interest of plaintiff was an illiterate
Pardahnashin lady/village woman and no person of her confidence
accompanied her---Heavy onus lay on defendants to prove the transaction
which they failed to discharge---Presumption of truth attached to registered
sale-deed was only to the extent of its registration and not execution ---Photo
copies of agreement to sell and receipt were annexed with written statement but
the defendants did not produce those documents in evidence---Non-production
of those documents went a long way to show the hollowness of the stand of
defendants in pleadings and evidence---Judgment and decree passed by
Appellate Court was set aside and that of the trial Court was restored.

Side Appellant : SULTAN
Side Opponent : MUHAMMAD HUSSAIN
---S. 42---Transfer of Property Act (IV of 1882), Ss.122 & 123---Suit for
declaration ---execution of gift---Plaintiffs who were father, son and daughter in
their suit for declaration had challenged gift mutation allegedly got executed by
them in favour of defendants/donee---Plaintiffs had claimed that gift in
question was the result of fraud and misrepresentation, besides that son and
daughter of donor at relevant time were minors and that donor (father) had no
lawful authority on their behalf to make the gift and that gift to their extent was
void---Suit was dismissed by Trial Court on ground of delay as mutation of gift
in dispute was challenged after about 26 years of its execution ---Son and
daughter of plaintiff/donor by producing identity cards and other documentary
and oral evidence, had fully proved that at relevant time when alleged gift
mutation was executed and attested they both were minors---Validity---
Page No. 12 of 61
Transaction/alienation of an immovable property on behalf of minors, was void,
even if it was made by their legal and natural guardian, except where
disposition of such property was for the need of minors---Such wa§ not the
position in the present case, rather property of minors which they had inherited
from their mother and was duly mutated in their favour, was gifted by their
father---Mutation of gift in question, in circumstances was absolutely void and
ineffective against the rights of minors/plaintiffs---Mutation of gift in dispute
though had not been challenged by minors within three years on attaining age
of majority, but suit to their extent could not be dismissed, because defendants
had been paying plaintiffs/minors share of produce of suit-land and cause of
action had accrued a week before the institution of the suit when defendants
had denied the title of plaintiffs to suit property---Even otherwise, on account of
declaration that gift mutation was void, plaintiffs would become sharers along
with defendants in same Khata---Remedy of minors to seek declaration was not
hit by any provisions of Limitation Act, 1908---Fraud in respect of mutation as
alleged by father of minors, had not been established against him and such
mutation having been effected about 26 years ago, could not be declared to be
voidable and case of father (plaintiff) would be hit by Limitation Act, 1908---
Judgment and decrees of two Courts below were set aside, suit of minors to the
extent of their shares in the gifted land was decreed, whereas to the extent of
share of father was dismissed and impugned mutation was maintained.

Side Appellant : GUL BEGUM
Side Opponent : MUHAMMAD RIAZ
--Ss.122 & 123---Contract Act (IX of 1872), S.16-- Specific Relief Act (I of
1877), S. 42---Suit for declaration ---Gift---Proof of execution ---Suit-land was
allotted to husband of plaintiff as head of family by way of `guzara allowance'---
Defendant had claimed that husband of plaintiff had gifted away suit property
to him through hibanama, but plaintiff denied claim of defendant alleging ,that
defendant who being dispenser used to administer medical treatment to her
husband who was an aged person, brought her aged husband to place `G' for
purpose of executing, "Patta Nama"/Rent deed in respect of suit-land, but
fraudulently had obtained hibanama---Plaintiff had also alleged that her
husband had become of unsound mind when suit was filed by her---Alleged
hibanama was on stamp paper which was purchased from Treasury of fice at
`G' and on the back of stamp paper, endorsement of said Treasury of fice had
shown that said stamp paper was purchased for 'Patta Mina', but appellate
court had brushed aside said material piece of evidence---Plaintiff and her
husband/alleged donor, were aged couple who were issueless and suit property
was the only means of their livelihood---Fact that they would transfer their only
means of livelihood by way of gift did not appeal to reasons---Such gift being
contrary to ordinary course of human conduct, had provided circumstantial
evidence to corroborate case set up by. the plaintiff---Alleged hibanama was not
got executed and registered where suit-land was situated and parties were
residing, but was executed and registered at another place and no explanation
was on record for doing that---Alleged hibanama, was subject to stringent
requirements of S.16 of Contract Act; 1872, which requirements had not been
fulfilled in the present case and Courts had not attended to same---Courts
below in dismissing suit of plaintiff had misread record and had not given
consideration to material aspects of case---Both Courts having acted with
material irregularity in exercise of their. jurisdiction , impugned judgments and
decrees of Courts below were set aside and suit of plaintiff was decreed as
prayed for.
Page No. 13 of 61
Side Appellant : Mrs. KHALIDA MALIK
Side Opponent : TAHIRA JABEEN
---Ss. 8 & 42---Suit for declaration and possession---Plaintiff in her suit had
alleged that defendant forged a general power-of -attorney on her behalf, got it
registered and on basis thereof he transferred disputed piece of land in favour
of defendant-company---Plaintiff further alleged that she was minor at the time
of execution and attestation of alleged general power-of -attorney in favour of
defendant, and that she neither appeared before Sub-Registrar nor had
executed said power-of attorney---Suit was contested by defendants contending
that plaintiff was not only a major at time of execution and attestation of
registered powerof -attorney, but was also estopped from her conduct to bring
suit as alleged attorney was her real grand-father, who acted on behalf of
plaintiff in sale-deed in respect of suit property---Both Trial Court and Appellate
Court below had decreed the suit---Validity---Alleged attorney, admittedly was
real grand-father of plaintiff---Plaintiff without any sufficient reason had failed
to appear before the Court to support allegations made in the plaint and also to
stand the test of , crossexamination---Defendant/vendee company admittedly
had no knowledge of infirmity in authority of attorney of plaintiff to act on her
behalf to sell property in question-

Side Opponent : RASHEEDA BIBI
---Ss. 122 & 123---Specific Relief Act (I of 1877), Ss.42 & 54---execution of gift
in respect of land-Suit for declaration and injunction---Respondent, who was
daughter of petitioner, through gift mutation got mutated land of petitioner in
her favour and through another gift-deed she gifted land in dispute in favour of
her son---Petitioner challenged said transactions as being fraudulent, by
denying having gifted his land to respondent which she could further gift to her
son---Both Trial Court and Appellate Court had concurrently found that
mutation of gift had been proved by respondents-Validity-Respondent, who
claimed oral gift in her favour, had not brought on record any positive evidence
to establish as to when declaration of alleged gift was made by petitioner in her
favour and she accepted the same---No witness at all had been examined by
respondent in that behalf---Day, date, time, month, year and venue had neither
been specified nor proved by respondent through any evidence---When initial
onus which was on the petitioner, had been discharged by him through his own
statement, adducing of positive evidence was the responsibility of respondents,
in which they had failed---Lamberdar, who claimed to have identified petitioner
at the time of mutation of gift before Tehsildar, was not Lamberdar of concerned
village, but was of another village and it was not explained as to why the
concerned Lamberdar had not been produced---No person from Revenue
Department, Patwari or Tehsildar etc. had been examined---Possession of
alleged gifted land was not shown to have ever changed hands on the basis of
alleged gift, as neither there was any independent proof on the record nor
change of possession was established on account of any overt act of
petitioner---Said vital aspects of case had not at all been considered by the two
Courts and their Judgments were absolutely sketchy and reflected non-
application of Judicial mind---Judgments and decrees of Courts below which
were suffering from infirmity of misreading and non-reading of evidence, were
set aside and suit of petitioner as claimed, was allowed.
Citation Name : 2006 PLD 617 KARACHI-HIGH-COURT-SINDH
Page No. 14 of 61
Side Appellant : BILQEES BEGUM
Side Opponent : REGISTRAR OF PROPERTIES
---Ss.42 & 54---Suit for declaration and permanent injunction---Benami

transaction---Proof ---Plaintiff had claimed that house in question having
purchased by him in name of his wife/defendant as benamidar, he should be
declared as owner of said house---Plaintiff had not pleaded or claimed anywhere
expressly that at the time of purchase of said house in the name of defendant,
there was a clear agreement or understanding between him and her that house
was owned by him and defendant was simply benamidar---In absence of proof
of such agreement/understanding, plaintiff could not be recognized judicially
benami owner of house as even if said house was purchased from his funds in
name of his wife/defendant---Plea of plaintiff was that he purchased house in
question in the name of defendant wife just to keep her happy---That by itself
had negated claim of plaintiff regarding status of transaction as. she could be
satisfied and kept happy only on becoming owner of the house---Claim of
plaintiff about benami character of transaction had not been established---
Plaintiff, even if sold house after getting its possession in execution of a decree
of the trial Court and possession was with the purchaser, but the right of the
defendant under S.144, C.P.C. could not be defeated by that transaction---
Plaintiff being not owner of house in question, was not competent and entitled
to transfer same under Transfer of Property Act, 1882---Possession of house
was to be restored to defendant by dispossessing purchaser thereof .
Citation Name : 2006 YLR 460 HIGH-COURT-AZAD-KASHMIR

Side Appellant : MUHAMMAD HAFEEZ KHAN
Side Opponent : MUHAMMAD AZEEM
---Ss. 39 & 42---Transfer of Property Act (IV of 1882), Ss.122 & 126---Pakistan
(Administration of Evacuee Property) Act (XII of 1957), S.41---Civil Procedure
Code (V of 1908), S.9---Suit for declaration and cancellation of gift-deed---
Maintainability---Jurisdiction of Civil Court---Contention that suit was not
maintainable as Civil Court had no jurisdiction to entertain suit in view of S.41
of Pakistan (Administration of Evacuee Property) Act, 1957, was repelled;
because dispute between the parties, in the present case, was with respect to
execution of gift-deed and there was no dispute with regard to the allotment of
property which was the exclusive function of Rehabilitation authorities or the
Custodian---Contention that jurisdiction of Civil Court was excluded was
repelled.

Side Appellant : NIAZ MUHAMMAD
Side Opponent : ABDUL RAZZAK
--S. 19---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973),

Art.185(3)---declaration of title---Mutation of sale, assailing of ---Concurrent
findings of fact by the Courts below---Suit land was allotted under Grow More
Food Scheme to the plaintiff who had sold the same to the defendant---
Mutation of sale was entered in the name of defendant---Plaintiff took exception
to the mutation on the ground that the sale was a result of fraud and
misrepresentation---Witnesses produced by the plaintiff did not advance his
case any further---Agreement in favour of defendant wherein he received
Rs.5000 was executed by plaintiff himself---Plaintiff appointed a special
attorney for the execution of sale deed and had himself submitted application
before Collector for permission to sell the disputed property---Revenue of ficer
recorded the statement of plaintiff and accorded permission on the basis of
which disputed mutation was sanctioned---Every thing in that regard was done
either by the plaintiff himself or at his instance---All the three Courts below
concurrently dismissed the suit filed by plaintiff---Validity---Trial Court and
Appellate Court had thoroughly thrashed all the issues involved in the case and
Page No. 15 of 61
High Court had given its own reasons for upholding the same---Leave to appeal
was refused.

Side Appellant : Mst. IKRAM BIBI
Side Opponent : PROVINCE OF PUNJAB and others
---Ss. 12 & 42---Civil Procedure Code (V of 1908), S.47 & O.XXI, Rr.10 & 32---
Constitution of Pakistan (1973), Art.185(3)---Suit for declaration ---Transfer of
plaintiff's plot by Department to defendant in pursuance of decree for specific
performance of contract---Plaintiff filed suit for declaration alleging such act of
Department to be illegal and ineffective on his rights as such decree having not
been executed through Court and execution petition having become barred by
time, Department on its own could not transfer the plot to defendant (decree-
holder)----Dismissal of suit by Trial Court and Appellate Court was upheld by
High Court in revision---Validity---Question raised in the suit necessarily
related to execution , satisfaction and discharge of decree of specific
performance of contract---No separate suit would be maintainable in relation to
such question by virtue of S.47, C.P.C.---Dismissal of suit was perfectly in
accordance with law---Supreme Court dismissed petition and refused leave to
appeal.
Citation Name : 2005 PLD 775 SUPREME-COURT

Side Appellant : MUHAMMAD HAYAT
Side Opponent : SARWAR KHAN
---Ss. 20, 21, & 22-Grant of land under "Horse Breeding Scheme"---Association
deed executed in respect of land subject-matter of grant by the original lessee---
Character and effect of such deed---Interpretation of document---Principles---
Instrument in question provided in clear words that the parties would equally
share the benefit of the grant and would be deemed to be joint owners of .land
on the acquisition of its proprietary rights---execution and existence of said
document being not disputed, the conclusion drawn by the Court of first
instance with respect to the rights of executants was based on the
consideration of its genuineness and the perusal of the document would not
suggest any ambiguity or suspicion in its contents---Document was executed by
original lessees and their brothers and father by virtue of which they agreed for
the joint cultivation of the land treating same as a joint property of the family
with ultimate right of ownership, therefore, notwithstanding the grant of
proprietary rights in the name of last lessee in the order of succession, the right
of ownership of the executants of deed in the land created by virtue of the
association deed, would not be extinguished---Association deed, in-plain words,
reflected the character of an undertaking of joint interest in the land obtained
on lease which was subsequently capable of conversion into absolute title---
Inclusion of any beneficial entitlement in the deed, would be an effective
declaration of equitable ownership which would conclude the question of title-
Person could establish a good possessionary title on the basis of a document
before the commencement of action even though he may have no legal title on
the crucial date-Executants of deed of association, having proved their
uninterrupted possessionary title of the land which was not even denied by the
last lessee and thus it was established that land in dispute was in their
continuous possession under the family settlement which was sufficient to
establish equitable title and in consequence thereto, the right of ownership
created under the association deed would not be extinguished by afflux of
time---Agreement related to an internal arrangement of the original grantee with
his brothers and father in respect of the affairs of the land and being not in
Page No. 16 of 61
conflict with the condition of lease, was not violative of either of the Schemes in
question or law---Such deed would neither override the terms of the lease and
create any right of the executants of the deed in the lease-hold-rights nor would
be binding on the Government for the purpose of grant of proprietary rights in
favour of any 'other 'person except of lessee---Status of executants of the
document as joint owners of the property under the agreement in question was
unexceptionable---Agreement executed by the original grantee in respect of the
land, subject-matter of grant, being not against the public policy or law, was
valid and would be binding on his successors---Principles.
Citation Name : 2005 PLD 658 SUPREME-COURT

Side Appellant : Ch. MUNEER HUSSAIN
Side Opponent : Mst. WAZEERAN MAI alias Mst. WAZIR MAI
-S. 16---Specific Relief Act (I of 1877), Ss. 12 & 42- Qanun-e-Shahadat (10 of
1984), Art. 78---Suit for specific performance of agreement to sell and
declaration ---Beneficiaries of the documents executed by
ignorant/illiterate/Parda-observing ladies, have to prove by overwhelming
evidence, the execution of such documents by such ladies and they have to
further prove that such transactions and such documents were explained to the
executants who had independent advice at the relevant time---Semi-illiterate
Parda-observing females are entitled to the protection of law governing such
ladies---Court has to be very careful in recording findings as to the execution of
any agreement by such ladies and it would not be sufficient to show that the
document was read over to the Parda-observing lady but it must further be
proved that she understood its nature and effect---Where the evidence had not
established that the documents in question were executed by such a lady or
that they were executed by her voluntarily out of her own free-will and that at
the time of execution of the documents she had an independent advice of her
close relatives and that the contents of the documents were read over to her
and nature of the transaction was explained to her, onus was on the beneficiary
of the document which he failed to discharge in the present case---Beneficiary
of the document had not been able to point out any non-reading of evidence or
illegality in the impugned judgment of the High Court wherein execution of
documents by the lady was disbelieved---Lady was being continuously
victimized and was out of possession of her landed property for the last 26
years and was suffering because the beneficiaries of the document thought that
she being a helpless lady, he could grab her property---Supreme Court declined
interference.

Side Appellant : SHER BAHADUR KHAN
Side Opponent : MUHAMMAD NAWAZ KHAN
---Arts. 61 & 84---Specific Relief Act (I of 1877), S.42-declaration of title---

Concurrent findings of fact by the Courts below---execution of agreement---
Proof ---Comparison of signatures and payment of consideration amount--
Plaintiffs claimed to be the owners of suit land on the basis of agreement in
their favour executed by the owner---Original agreement deed as well as certain
other relevant documents were sent to handwriting expert by Trial Court---
Report of handwriting expert revealed that the signature of executant on the
agreement deed was bogus---Trial Court itself had also compared the signature
of executant with the one available on the agreement deed and found that the
same were dissimilar to the one put on the questioned agreement deed---Even
payment of consideration was not proved---Material contradictions in the
statements of plaintiffs witnesses were found---Trial Court dismissed the suit
Page No. 17 of 61
and the judgment was upheld by Appellate Court as well as by High Court--
Validity---All the three Courts recorded concurrent findings of fact based on the
evidence on record---No misreading or non-reading of material, evidence was
pointed out and judgment passed by High Court did not suffer from any legal or
factual infirmity to warrant interference---Appeal was dismissed.
Citation Name : 2005 CLD 50 LAHORE-HIGH-COURT-LAHORE

Side Appellant : RUBINA JAMSHED
Side Opponent : UNITED BANK LIMITED
----S. 10---Suit for recovery of loan--Public transport financing---Application

for leave to defend suit---Bank, in support of the plaints, had annexed different
documents, including promissory notes, mark-up agreements, letters of
hypothecation, letters of authorities and undertakings/ declaration s etc said to
have been executed by the applicants---Photocopies .of Registration Books in
the joint names of the parties had been placed on, record---Applicants had
neither denied their signatures on the said documents, nor the execution of the
documents and had only made a bald assertion that the said documents were
not executed in accordance with the provisions of Qanun-e-Shahadat, 1984---

Side Appellant : ZAMAN KHAN alias ZAMA KHAN
Side Opponent : Mst. SARDARAN MAI alias SADDAH MAI through Legal Heirs
---S. 42---Qanun-e-Shahadat (10 of 1984), Art. 92---Suit for possession---

Sect--- Custody of relevant document---Presumption---Suit for declaration that
the deceased belonged to "Figa Jaafria", widow was not entitled to inherit and
mutations of inheritance were wrongly cancelled by the Board of Revenue---Suit
was decreed by the trial Court but was dismissed by Appellate Court---
Appellate Court had discussed the relevant document in a threadbare
manner---Witness who produced the original record was not the legal keeper of
that record---Custody of the document was not proper---execution by the
deceased was not proved---Stamp vendor was not produced---Appellate Court
had appreciated the oral as well as documentary evidence---Findings given by
the Trial Court were not supported by the evidence on record---Judgment of
Appellate Court was preferred as being legal and unexceptionable, in
circumstances.

Side Appellant : SINDHI
Side Opponent : ASHIQ ALI
--Ss. 122 & 123---Specific Relief Act (1 of 1877), S. 42---Valid gift, proof of ---
Suit for declaration ---Plaintiff had alleged that gift-deed in favour of defendants
in respect of suit property, was illegal, forged, collusive and not binding on the
rights of plaintiff---Onus was on defendant to prove execution of valid gift-deed
in his favour, but none of witnesses produced by him had deposed that any
proposal or acceptance was made in their presence or possession of property
was delivered to defendant as donee---Defendant had never obtained possession
of suit property under gift, rather he had admitted in his evidence that he was
in possession of suit property prior to the gift---Conclusion drawn by Appellate
Page No. 18 of 61
Court below while deciding question of gift was not only correct, but was based
on proper appraisal of evidence---Since defendant had failed to prove execution
of gift-deed as well as factum of gift through independent evidence in his favour,
no exception could be taken to judgment passed by Appellate Court whereby
suit was decreed.

Side Appellant : MUHAMMAD NAWAZ
Side Opponent : FAIZ AHMAD
---Ss. 42 & 39---Suit for declaration ---Cancellation of document---Plaintiff had

challenged registered sale-deed as void upon his rights being result of fraud---
Objection that the suit should have been for cancellation of documents---
Validity---Property subject-matter of sale-deeds was in possession of the
plaintiff---execution was specifically denied---High Court held that "relief
claimed and granted was proper---No need was to sue for cancellation.

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Side Appellant : MUHAMMAD NAWAZ
Side Opponent : FAIZ AHMAD
--Art. 79-Specific Relief Act (I of 1877), S.42---Suit for declaration

---Document---Proof of execution ---Plaintiff in suit for declaration alleged that
he was illiterate old person and the defendant had cleverly got his thumb-
impressions on different papers and fraudulently forged sale-deeds and such
deeds were illegal and void qua his rights---Trial Court had dismissed the
suit---Appellate Court on appeal had decreed the suit---Validity---Plaintiff had
specifically denied the execution ---Defendant being beneficiary was burdened
to prove the registered sale-deeds---All the witnesses were closely related to the
defendant---All the witnesses of plaintiff except the Lamberdar had accepted
that plaintiff was not known to them and plaintiff was of 71/72 years of age,
consideration alleged in sale-deeds had not changed hands in their presence
and possession was with the plaintiff---Appellate Court had rightly read the
evidence before passing the judgment---Plaintiff had denied the execution of the
documents, as such relief claimed and granted were proper---No need was for
plaintiff to sue for cancellation of document---Revision petition was dismissed
in circumstances.
Page No. 19 of 61
Side Appellant : MUHAMMAD ALI
Side Opponent : SHINA
---S. 42---Civil Procedure Code (V of 1908), S. 115---Suit for declaration

---Judgment in variance---Plaintiffs in their suit had made averments that they
had succeeded in a pre-emption suit before the Collector as well as the
Additional Commissioner---For getting the orders implemented in the Revenue
Record and to obtain possession of the tube-well defendant approached plaintiff
for executing a special power of attorney in his favour---Defendant in collusion
with marginal witnesses and the staff of Sub-Registrar got a general power of
attorney executed in his favour and on the basis of such document got two sale-
deeds of property separately owned by the plaintiffs in favour of his son
(defendant)---General power of attorney and sale-deeds were assailed in the suit
to be the product of fraud---Defendants had averred that plaintiffs had
borrowed money to be deposited in pre-emption suits and as agreed the suit
property was transferred to the defendants and if they wanted to retain the suit
property they should return the money borrowed by them---Suit was decreed by
the Trial Court but was dismissed in appeal---Validity---execution of the
document was admitted though for a different purpose---Fraud having been
alleged, it was for the plaintiffs to prove the fraud---Advocate of 9 years
standing and his clerk were marginal witnesses---execution of the document
was a question of fact which stood concluded by finding of fact duly arrived at
by the Appellate Court on reappraisal of the evidence---No misreading or non-
reading was pointed out---Fate of the document was to be determined after
taking into consideration the totality of the circumstances brought about in the
evidence and not on the obliging concession of the marginal witnesses---
Plaintiffs were identified by an Advocate and his clerk had appeared as
plaintiff's witnesses and the scribe, Registry Moharrir and Tehsildar had
appeared as defendants witnesses---execution of general power of attorney was
satisfactorily established and it, could not be believed that persons who had
contested their case themselves needed an attorney to get possession in
execution ---Findings recorded by Appellate Court were maintained in
circumstances.

Side Appellant : BARKAT ALI
Side Opponent : SAKHI MUHAMMAD
--Ss. 42 & 54---Transfer of Property Act (IV of 1882), S. 54---Suit for

declaration and permanent injunction---Sale of property---Proof ---Plaintiff had
claimed that he was owner in possession of suit-land and defendants had got
no concern with the same and that sale of said land through sale-deed allegedly
made by plaintiff in favour of defendants, was result of coercion, without
consideration and was void and ineffective qua the rights of plaintiff---Plaintiff
had also sought permanent injunction against defendants restraining them
from claiming any right in respect of said land---Defendants besides contesting
suit of plaintiff by filing written statement, had also filed suit for possession
against plaintiff---Trial Court dismissed suit filed by plaintiff and decreed the
suit for possession filed by defendants against plaintiff, but Appellate Court
reversed findings of Trial Court and decreed suit filed by plaintiff and dismissed
suit for possession filed by defendants against plaintiff---Defendants had filed
revision against judgment and decree of Appellate Court---Validity---Plaintiff
had himself admitted execution of sale-deed in favour of defendants, but had
alleged that sale-deed was result of coercion, and was without consideration---
Plaintiff could not prove said allegation against defendants---Mere agreement to
sell would not create any right and it was a document of sale which in fact not
Page No. 20 of 61
only would create right in an immovable property, but also transfer title to
purchaser in the property transferred under registered-deed---Non-proof or
non-reference of agreement to sell and receipt, could not be given any weightage
in view of express admission of plaintiff/vendor where he had in so many words
admitted transfer of suit-land through registered sale-deed in favour of
defendants---After admission of execution of sale-deed in favour of
defendants/vendees, a very heavy onus lay upon plaintiff to have proved that
said transfer and sale-deed was in fact without consideration and result of
coercion, but he failed to discharge that burden---Plaintiff, in circumstances
was estopped by his act and conduct from seeking cancellation of sale-deed on
assertion of its being result of coercion---Judgment and decree passed by
Appellate Court below, were set aside and declaratory suit filed by plaintiff
would remain dismissed, whereas suit for possession filed by defendants
against plaintiff, stood decreed as prayed for by defendants.

Side Appellant : KHUSHI MUHAMMAD
Side Opponent : NOOR BIBI
--- Arts.61, 72 & 74---Specific relief Act (I of 1877), S. 42---Suit for declaration
---execution of document---Proof ---Where execution of document had been
denied by its alleged executant by disowning his/her signature/thumb-
impressions, it would become duty of beneficiary under the document to at
once apply to the Court for getting thumb-impressions compared from
Handwriting Expert---Throughout the proceedings either before the Trial Court
or before Appellate Court or even before High Court, no effort was made by
defendants to have thumb-impressions of plaintiffs compared from Handwriting
Expert---By not resorting to that exercise at any stage, defendants had
themselves incurred a presumption against them that in case the thumb-
impressions of either plaintiffs and alleged attorney had been got compared
from Handwriting Expert report of Expert would have been against them.

---S. 42---Limitation Act (IX of 1908), Art.120---Suit for declaration

---execution of sale-deed and power of attorney--Limitation-Suit was resisted by
defendant contending that same was filed after about 8 years of execution of
sale-deed and power of attorney was hit by Art.120 of Limitation Act, 1908
which had provided a maximum 'period of six years for such-like cases---
Contention of defendants was not based on proper legal premises because
plaintiffs in their plaint had specifically asserted that they had regularly been
receiving their lease money from defendants and that it was 20/25 days before
the institution of the suit when they came to know about said documents---
Plaintiffs had further con-tended that neither they were party to said
documents nor they ever had executed said documents---Co-sharer---Plaintiffs
being sisters of defendants were co-sharers in Khata in dispute---Co-sharer
could not he ousted by another co-sharer on the ground of limitation; because
possession of one was always deemed to be the possession of all---Since
defendants had not successfully proved the execution of said documents by
plaintiffs, plaintiffs not being parties to said documents, suit filed by plaintiffs
was well in time.
Page No. 21 of 61
--Arts. 117 & 118---Specific Relief Act (I of 1877), S. 42---Suit for declaration
---Burden of proof ---Onus of issue framed by Trial Court with regard to sale of '
suit-laid against consideration, was placed on defendants, whereas plaintiffs
were burdened to prove issue regarding illegality of alleged sale-deed and power
of Attorney---Findings of Courts below on issue of alleged sale-deed though
were subject to findings on issue with regard to suit-land but onus of issue of
sale-deed was wrongly placed on plaintiffs whereas same should have been on
defendants as burden to prove execution of a document was always on the
beneficiary under the said document---Claim of defendants being that they
purchased the disputed land from plaintiffs, it was their liability to have proved
that they purchased said land from a validly appointed/constituted general
attorney---To discharge onus of valid execution of document whatever evidence
had been produced by defendants, had been properly examined, appraised and
duly scanned by two Courts below, High Court dismissed the revision.

--S. 42---Estoppel---Suit for declaration ---execution of alleged general power of

attorney and sale-deed on part of plaintiffs having not been proved, plaintiffs
were not estopped from filing the suit, especially when defendants had
produced no evidence on record tending to establish estoppel on part of
plaintiffs---Contention that plaintiffs were estopped by their words and conduct
to bring suit, was repelled.

Side Appellant : AMANAT ULLAH
Side Opponent : ASMAT ULLAH
---Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 115-Suit for declaration

and permanent injunction---Revision had been filed against concurrent findings
of Courts below whereby suit filed by plaintiff was dismissed---Claim of plaintiff
was that house in dispute was jointly transferred by Settlement Department to
plaintiff and defendants who were his brothers in equal shares, but one of
defendants in connivance with Settlement Department managed to remove
name of plaintiff from the record and got transferred share of plaintiff in his
name---Plaintiff had never conceded to have surrendered or relinquished his
share in house in favour of defendant nor did he concede execution of affidavit
in that respect or to have ever appeared before Settlement Authorities for
making any statement of the nature or C.H. Form admitting to have
relinquished his share in the house in question in favour of defendant---Onus
to prove execution of alleged affidavit and making statement before Settlement
Authorities withdrawing name of plaintiff as recorded in Settlement's record
was on defendant being beneficiary, but witnesses produced by defendant could
not say even a single word about appearance of plaintiff before Settlement
Authorities and thus said witnesses were not of any help to defendant---
Defendant had failed to prove that plaintiff had ever relinquished his share in
disputed house---No evidence was on record showing payment of any amount to
Page No. 22 of 61
plaintiff as compensation for said house---Findings of two Courts below holding
that plaintiff had relinquished his share in house in favour of defendant, being
not based on any evidence, could not be maintained---High Court accepting,
revision, set aside judgment and decrees of both Courts below and suit filed by
plaintiff was decreed as prayed for.

Side Appellant : SARDAR MUHAMMAD
Side Opponent : Mst. NAHEED MAHBOOB ALAM
----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 117(1) (2)---Suit for

declaration ---Document---Burden of proof ---execution of document---Plaintiff
lady had challenged registered sale-deed in favour of defendant made by her
brother as general attorney of the plaintiff---Plaintiff had denied the execution
of general power of attorney and challenged the authority to sell property---
Burden to prove power of attorney as valid, lawful document was on the
defendant who was beneficiary---Marginal witnesses were not produced----
General Attorney was not produced or summoned---Scribe was produced by the
plaintiff who deposed against the defendant---Defendant had failed to prove the
execution of general power of attorney--Appellate Court had rightly decreed the
suit for declaration filed by the plaintiff.

Side Appellant : MUHAMMAD ARIF
Side Opponent : ZAFAR IQBAL
-Ss. 214 & 215---Specific Relief Act (I of 1877), S.42---Limitation Act (IX of
1908), Arts. 91 & 92---execution of general power of attorney by principal---Suit
for declaration by principal against the agent---Maintainability---Limitation---
Right of principal when agent deals on his own account, in business of agency
without principal's consent---Agent, in the present case, allegedly got entered
the words of sale, gift and mortgage in the deed of attorney without knowledge
of the principal and sold the land in question to his real son and brother
respectively without securing any permission from the principal to sell the said
land to his nearest relations---Validity---Sale by the agent in favour of his son
and brother on behalf of the principal, in circumstances, was by way of fraud
and misrepresentation, therefore suit under S.42, Specific Relief Act, 1877 by
the principal against the agent was maintainable and within limitation under
Arts.91 & 92 of the Limitation Act, 1908---Principles.
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Copyright Oratier Technologies (Pvt.) Ltd.
Page No. 23 of 61

CLD

Side Appellant : Mst. KHURSHID BIBI
Side Opponent : RAMZAN
---S. 42---Transfer of Property Act (IV of 1882), Ss. 122 & 123---Civil Procedure
Code (V of 1908), S. 115---Suit for declaration ---Gift, proof of ---Original owner
of suit-land had died leaving behind his son, widow and 3 daughters and
mutation of inheritance was duly attested---Land of plaintiff daughters, firstly
was got mutated in favour of widow of deceased and thereafter in favour of
defendant son, with the result that land of plaintiffs stood transferred to brother
of plaintiffs---Brother claimed that plaintiffs had transferred their shares in
land to him through gift---Plaintiffs denied execution of any gift in favour of
brother and filed suit seeking declaration that they being co-sharers in suit-
land was entitled to get their shares in the land---Courts below having
dismissed suit, plaintiffs had filed revision petition against judgments and
decrees of Courts below---Validity---Plaintiffs admittedly having inherited
property of their father, it was for the said brother to prove a valid transfer of
same in his favour---Brother had failed to bring proof of any valid gift or of
surrendering property by plaintiffs in his favour---Trial Court had dealt with the
matter on the assumption that a mutation of gift incorporated into Jamabandi
enjoyed presumption ,of genuineness and Appellate Court below followed suit---
Both Courts below had completely lost sight of attending circumstances of the
case apparent on the face of record---No evidence was on record to show as to
why plaintiffs, who had their own children and husbands, proceeded to gift
away their shares in suit-land to their mother and then to their brother---Such
fact had cast doubt on genuineness of transaction of alleged gift---Inference of
Courts below that mutation having been incorporated in the Jamabandi
enjoyed a, presumption of genuineness, was also without lawful authority
inasmuch as notwithstanding the fact that a mutation stood incorporated in
Revenue Record, if a dispute would arise, burden would squarely lay upon
beneficiary to prove the validity of transaction---Question of limitation had also
been wrongly decided by Courts below because parties being co-heirs, no
question of limitation arose which could run against plaintiff---Both judgments
and decrees passed by Courts below were set aside and suit filed by plaintiffs
was decreed as prayed for.

Side Appellant : Sh. MUHAMMAD SHAFI
Side Opponent : Sh. ALA-UD-DIN
-S. 42---Qanun-e-Shahadat (10 of 1984), Arts.76 & 100---Civil Procedure Code

(V of 1908), S.115---declaration of title---Thirty years old document---Proof
---Non-production of thirty years old document in original---execution of
document denied---Concurrent findings of fact by the Courts below---Plaintiffs
claimed ownership of the suit property on the basis of registered sale-deed
Page No. 24 of 61
executed in favour of their predecessor-in-interest by the owner---Defendants
resisted the suit on the ground that the suit property was transferred by the
owner to his wife in lieu of her deferred dower amount and the wife had
transferred the property in their favour---Defendants in support of their claim
relied upon a copy of agreement allegedly executed on 30-6-1960---Trial Court
decreed the suit in favour of plaintiffs as the defendants failed to prove the
execution of agreement in favour of the wife by the owner---Judgment and
decree passed by the Trial Court was maintained by Appellate Court---Plea
raised by the defendants was that the agreement was an admitted document
being thirty years old---Validity---execution of the agreement by simply relying
on Art.100 of Qanun-e-Shahadat; 1984, could not be said to have been proved
especially when it was denied by the executant---Documents could be proved
under Art.76 of Qanun-e-Shahadat, 1984, through secondary evidence
regarding its existence--Conditions and contents of original document were not
proved by the defendants by producing its scribe, marginal witnesses or the
persons acquainted with handwriting/signatures of the executant---In absence
of any proof even by way of secondary evidence, it could not be held that the
wife of the owner became owner on the basis of unproved agreement and the
defendants were transferred the suit property with lawful title--Defendants also
failed to prove that marriage between the spouses was solemnized for a deferred
dower amounting to Rs.32,000---Was not proved on record that the deferred
dower was claimed by the wife---Transfer of urban property within municipal
limits could not be effected through a simple agreement---Transfer of such
property could only be made through registered document and not otherwise in
terms of Registration Act, 1908---Courts below properly appraised the evidence
on the file and their judgments were not tainted with any illegality/irregularity
thus those were not open to any interference in revisional jurisdiction---
Revision was dismissed is circumstances.

Side Appellant : RAHIM BAKHSH
Side Opponent : QADIR BAKHSH
---Arts. 75, 76 & 85(5)---Civil Procedure Code (V of 1908), O.VIII, R.2---

Contract Act (IX, of 1872), S.215---Specific Relief Act (I of 1877)---S.42---Suit
for declaration -- Document, proof of ---Pleadings-- Payment---Agent's duty to
communicate---Plaintiffs in suit for declaration had challenged the appointment
of general attorney and consequent sale made by him---Defendants had
controverted the plaintiffs---Suit was decreed by the Trial Court, but Appellate
Court dismissed the same---Validity---Original document (general power of
attorney) was not produced---Defendants had to prove the document by
primary evidence---Document had gone out of the pale, of public documents as
per Article. 85(5) of the Qariun-e-Shahadat, 1984---One of the plaintiffs who
appeared in the witness-box was not confronted with the document said to have
been executed by him---Payment allegedly made before the execution of power
of attorney was not pleaded in written statement---One of the principals of the
power of attorney had died before the sale---Alleged sale was effected in the
names of sons of the attorney which required consent of the principal---
Appellate Court had acted with material irregularity in exercise of his
jurisdiction---Judgment and decree passed by the Appellate Court were set
aside and those of Trial Court were restored in circumstances.

Side Appellant : RAHIM BAKHSH
Side Opponent : QADIR BAKHSH
Page No. 25 of 61
-Arts. 75, 76 & 85(5)---Civil Procedure Code (V of 1908), O.VIII, R.2---Contract
Act (IX, of 1872), S.215---Specific Relief Act (I of 1877)---S.42---Suit for
declaration -- Document, proof of ---Pleadings-- Payment---Agent's duty to
communicate---Plaintiffs in suit for declaration had challenged the appointment
of general attorney and consequent sale made by him---Defendants had
controverted the plaintiffs---Suit was decreed by the Trial Court, but Appellate
Court dismissed the same---Validity---Original document (general power of
attorney) was not produced---Defendants had to prove the document by
primary evidence---Document had gone out of the pale, of public documents as
per Article. 85(5) of the Qariun-e-Shahadat, 1984---One of the plaintiffs who
appeared in the witness-box was not confronted with the document said to have
been executed by him---Payment allegedly made before the execution of power
of attorney was not pleaded in written statement---One of the principals of the
power of attorney had died before the sale---Alleged sale was effected in the
names of sons of the attorney which required consent of the principal---
Appellate Court had acted with material irregularity in exercise of his
jurisdiction---Judgment and decree passed by the Appellate Court were set
aside and those of Trial Court were restored in circumstances.

Side Appellant : MUREED HUSSAIN
Side Opponent : MAKHNA
----S.42---Civil Procedure Code (V of 1908), S.115(2) & O. XLI, R.22---Suit for

declaration ---Supporting the decree on issues decided against the respondents
---Cross-objection---Cross-appeal---Verbally challenging the findings of the Trial
Court on issues decided against--Suit for declaration on the basis of
unregistered gift-deed was decreed by the Trial Court---Appellate Court
dismissed appeal on ground that deed being unregistered created no title---
Findings about the execution were maintained---Respondents in appeal who
had obtained the decree from the Court and did not want any change in the
same could support the decree and could also orally challenge the findings on
the issues which had gone against them and could request the Court to return
the findings in their favour on that issue as well, to give additional support to
the decree--
Citation Name : 2005 CLC 1602 KARACHI-HIGH-COURT-SINDH

Side Appellant : Messrs GREEN FUELS
Side Opponent : SHELL PAKISTAN LIMITED
--S. 60---Specific Relief Act, (I of 1877), Ss.42 & 55---Suit for declaration and
permanent injunction---Licence, revocation of ---Not all and every licence are
revocable---Section 60, Easements Act, 1882 provides exception to this general
rule---Licence is irrevocable only in cases where it is coupled with interest or
where a licensee has raised construction of a permanent nature---
Plaintiff/licensee, in the present case, acting upon the licence had executed
work of permanent character and incurred expenses in the execution ---Plaintiff
on the representation made in the licence had installed C.N.G. filling station
and incurred substantial expenditure---Held, it would be wholly unfair, that the
licenser be clothed with arbitrary authority to terminate the licence at his
whims, against specified grounds to seek revocation as provided for in the
termination of agreement clause---Incurring of substantial expenses would not
be feasible for a shorter term of five years---Unless the licensee was allowed to
exploit the licence for the full stretch of 15 years as agreed upon, licensee would
suffer irreparable loss as against the licenser who would not suffer any loss---
Page No. 26 of 61
Application of plaintiff/licensee for grant of injunction was allowed in
circumstances.

Side Appellant : RAEES AHMED through L.Rs.
Side Opponent : PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY
---Ss. 42 & 55---Qanun-e-Shahadat (10 of 1984), Art.87---Contract Act (IX of

1872), S.25---Suit for declaration and injunction---Plaintiff had purchased a
plot from a private party in a Housing Colony---Plaintiff claimed that he
approached the Housing Authority for the transfer of plot in his name and
complied with the requisite formalities for the purpose of transfer of the plot in
the record of the Housing Authority---Plaintiff stated that he had appeared with
the vendor of the plot in the Authority's of fice and on execution , confirmation,
and verification of the requisite documents, was issued a receipt by the Housing
Authority for collection of Transfer Order in his favour on a specified date; that
on account of his illness he could not contact the of fice of the Housing
Authority for collection of Transfer Order of the plot in his favour and that one
of the private defendants had fraudulently sold his plot to the other defendant
by forging his signatures, after unauthorizedly collecting the original transfer
Order of the plot from the Housing Authority's of fice---Validity---Housing
Authority and the purchaser of the plot had, during proceedings, tiled
applications with the copy of authority letter purported to have been signed by
the plaintiff---Counter-affidavit was tiled by the plaintiff denying that he had
ever authorized the defendant for collecting the Transfer Order and also denied
his signature on the authority letter--Undated authority letter was taken on
record and it was ordered by the Court to be treated the same as part of the
evidence "subject to all just exceptions "---Such order of the Court could not be
construed to mean that the contents of the said letter of authority stood proved
and/or signatures denied by the plaintiff were proved against him---Once the
phrase "subject to all just exceptions" was used by the Court the party relying
upon such documents had to lead evidence to prove the contents of the
documents which, in the present case, had not been done, therefore,
irrespective of the order of the Court, defendants were required to prove the
contents of the said documents in terms of Qanun-e-Shahadat, 1984---
Defendants could not prove the contents of all other documents on record---
Court's own comparison of signatures of the plaintiff revealed that signatures of
the plaintiff differed on the documents including the alleged letter of
authority---Defendants had not even examined the attesting witnesses of the
receipt, which was also on record---Sale agreement and the receipt were not
produced in evidence by the alleged buyer of the plot and no explanation, of any
kind was given by him for such omission---None of the defendants including the
Housing Authority had produced any registered instrument authorizing the
defendant to sell the property of the plaintiff in terms of S.17, Registration Act,
1908---Except for undated letter of authority, on the basis of which the
defendant claimed to have collected the original Transfer Order, there was no
other document produced by the defendants to show that the plaintiff had ever
authorized him to transfer/sell the plot to the defendant---Role of Housing
Authority was also suspicious while transferring the plot in-question to the
defendant---Conduct of Housing Authority, which was a Public Authority, in
transferring the plot, was not bona fide---Transfer of plot by the Housing
Authority appeared to have been made under influence of someone, without
waiting for the visit of the plaintiff to their of fice---No explanation had been
given either in the written statement or otherwise by the Housing Authority in
this regard--Defendant, in circumstances, at no point of time, had any
authority, in law, to sell the plot in-question on behalf of the plaintiff---Non
production of the sale agreement and receipt alleged to have been issued
towards the sale consideration in evidence by the alleged purchaser of the plot
and non confrontation of the said two documents to the plaintiff in his evidence,
were sufficient ground to disbelieve the evidence of the alleged buyer of the
plot---Onus always lay on the beneficiary of the document and in the present
Page No. 27 of 61
case the alleged buyer was the beneficiary who failed to discharge the same---
Other defendant having no authority in law either to approach the Housing
Authority to collect the original Transfer Order to sell the plot by presenting
himself as attorney of the plaintiff, the transfer made by the Housing Authority
in favour of the alleged buyer was unauthorized---High Court decreed the suit
accordingly.

Side Appellant : BHOOL CHAND
Side Opponent : PORT QASIM AUTHORITY
--Ss. 21, 42 & 54---Contract not specifically enforceable---Suit for declaration

and injunction---Plaintiff by relying upon the "letter of intent" contended that
since the defendant had failed to exercise its right in negative on or before the
specified date, the option by the defendant would be deemed to have been
exercised in favour of the plaintiff as a result of which the contract could only
be awarded to him; that in the inter-departmental correspondence/exchanges
of the defendant it had recommended that the contract in question be awarded
to the plaintiff; that in view of the contents of letters exchanged between the
parties the contract stood of fered and accepted between the parties and the
defendant was bound to award the contract to the plaintiff and that in the last
tenders, the plaintiff had of fered the lowest bid and therefore, he was entitled
to the award of the contract---Validity---Held, exercise of the right of option to
award the contract in question rested with the defendant unconditionally and
the plaintiff had no tight to compel the defendant to exercise the same in his
favour; the contention of the plaintiff that since the defendant had failed to
exercise its right in negative the defendant would be deemed to have exercised
the option in favour of the plaintiff was not sustainable as the wording of the
clause of the letter of intent itself was very clear and the proposition suggested
on behalf of the plaintiff could not be read into the same ---Interdepartmental
correspondence/exchanges of correspondence were the part of the normal
course of business and in that a number of suggestions and recommendations
were made by one department and rejected by the other and unless those were
of ficially .communicated and forwarded the same were of no help to the
plaintiff---If such correspondence/recommendations of the departments were
made binding on the departments by the outsiders the entire working of inter-
department exchanges/correspondence would come, to a stand still and the
departments would not reduce any suggestion or recommendation in writing
fearing that the same would be made binding upon them by the outsiders; that
said inter-departmental correspondence /exchanges being not binding on the
defendant, plaintiff legally could not seek protection thereof to improve his case
and that it could not, in circumstances, be said that there was an "of fer" and
an "unconditional acceptance" which would amount to execution of contract
between the parties ---Plaintiff, in circumstances, had failed to establish a
prima facie case in his favour for injunction---Convenience was in favour of the
defendant and not in favour of plaintiff because the defendant was a public
Corporation where public money was involved---Principles.
Citation Name : 2005 YLR 1814 SUPREME-COURT-AZAD-KASHMIR

Side Appellant : FARMAN BI
Side Opponent : SAIDA
---Ss. 8, 39 & 42---Limitation Act (IX of 1908), Arts. 91, 95 & 120---Suit for
declaration , possession and cancellation of "Aaknama "---Limitation---Plaintiff
along with others had claimed that she being daughter of the deceased original
owner of suit-land was entitled to her share from the land of deceased as one of
Page No. 28 of 61
her legal heirs--Defendants, who were other legal heirs of the deceased, had
denied claim of plaintiff on basis of alleged "Aaknama" or letter of
disinheritance, allegedly executed by deceased in favour of defendants and
against the plaintiff --Defendants on the basis of said Aaknama, got sanctioned
a mutation in their favour excluding the plaintiff and defendant on the basis of
said mutations further transferred the suit-land through different gift-deeds---
Plaintiff filed suit for possession of her legal share, declaration and cancellation
of alleged Aaknama and further transactions on basis thereat --Not only
defendants, but also Trial Court and Appellate Court had accepted the facts
that plaintiff was in fact legal heir of deceased original owner and was owner of
suit-land to the extent of her share per law of Inheritance, but plaintiff was
non-suited by both Courts below on the basis of alleged 'Aaknama' and on the
ground - of limitation as the alleged Aaknama was executed in 1956 and suit
was filed in 1996 after forty years of its execution ---Alleged Aaknama was a
settlement to disinherit a legal heir of deceased, which was not recognized by
Transfer of Property Act, 1882 or Registration Act, 1908---Muslim owner could
validly transfer his property only through modes recognized by law and not
otherwise---Alleged Aaknama, in circumstances was ab initio void document
and would not create title of ownership in favour of defendants---In order to
deprive a Muslim owner of his legitimate right to a joint estate left by original
owner, it was enjoined upon the Courts to satisfy themselves about the fact that
claimant/plaintiff was having knowledge about transactions depriving her of
the right---Personal knowledge of f plaintiff was required to be proved in the
case... Conclusion arrived at by Courts below was nothing, but a result of
surmises, conjectures, suppositions and presumptions as Courts had failed to
satisfy themselves about personal knowledge of plaintiff with regard to
execution of alleged Aaknama and further transactions on basis thereof ---
Plaintiff came to know all that matter in 1996 when she asked for her share in
property---Suit filed by plaintiff was within time and could not be held time-
barred--Concurrent judgments and decrees of Courts below were set aside and
alleged Aaknama and all transactions made thereafter were declared to be
Ineffective and Inoperative on the rights of plaintiff in respect of estate left by
her deceased father.
Citation Name : 2005 YLR 1355 SUPREME-COURT-AZAD-KASHMIR

Side Appellant : MUHAMMAD ALI
Side Opponent : MUHAMMAD SADDIQUE
--Ss. 53-A, 54 & 58---Civil Procedure Code (V of 1908), O.IX, R.13---Specific

Relief Act (I of 1877), S.42---Suit for declaration and cancellation of ex parte
decree---Transaction whether mortgage or sale, determination of ---Plaintiffs in
their suit for declaration and cancellation of ex parte decree had claimed that
defendant was in possession of suit-land as mortgagee and that defendant had
obtained ex parte decree by fraud and misrepresentation in connivance with
Process Server in respect of suit-land---Case of plaintiffs was that document in
question was mortgage deed, but had wrongly been garbed as agreement to
sell---Defendant resisted suit contending that suit-land was transferred to him
through an agreement to sell and that he was in possession of same as owner---
Defendant had further contended that decree under challenge had been passed
by the Court in his favour after refusal of plaintiffs to accept service and that
allegations of fraud and deception against him in obtaining ex parte decree in
said case, were baseless---Both Trial Court and Appellate Court having
concurrently decreed the suit in favour of plaintiffs, defendant had filed second
appeal against the judgments and decrees of two Courts below---Validity---
Held, it was enjoined upon plaintiffs to prove that document in question was
not agreement of sale, but was mortgaged deed, but they could not prove the
same---Evidence of petition writer and other witnesses had clearly shown that
document in question was an agreement to sell and surrounding circumstances
also did not reveal any different intention of parties executing such document---
Intention of parties at the time of execution of document could be ascertained
from their conduct---Mere stipulation in said document that in case agreement
Page No. 29 of 61
was not executed, vendor would repurchase property, would not be sufficient to
hold agreement to sell as mortgage-deed---Stamp paper of said document had
been purchased by predecessor of defendant for execution of agreement to sell,
price mentioned therein had been duly paid by defendant and was received by
vendor as per certificate of Sub-Registrar---Defendant had fully proved that
document in question was agreement to sell and that he was in continuous
possession of land on basis of said document, which fact had not been
controverted by other side---Both Courts below had not appreciated and
interpreted document in question in a legal manner---Impugned judgments and
decrees of Courts below were set aside in second appeal and suit filed by
plaintiffs was dismissed.
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CLD

Side Appellant : AAS MUHAMMAD
Side Opponent : CHAHAT KHAN
----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 59 & 78---Constitution of

Pakistan (1973), Art.185(3)---Suit for declaration ---Provisional Transfer Order
was issued in favour of all brothers, but Permanent Transfer Deed was issued
exclusively in favour of one brother on basis of surrender deed purportedly
executed by other brothers ---Plaintiffs brothers challenged PTD and surrender
deed in a suit on ground of fraud and forgery which was dismissed by Trial
Court and Appellate Court, but was decreed by High Court in revision filed by
plaintiffs---Validity--Two of the plaintiffs had appeared before Trial Court and
denied execution of surrender deed---Defendants thereafter were bound to have
produced positive evidence to prove due execution of such document--Neither
scribe of such document had been produced nor expert opinion had been
obtained to prove thumb-impressions of plaintiffs
Page No. 30 of 61
Side Appellant : ZULFIQAR ALI
Side Opponent : GHULAM RASOOL
----S.42---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration

---Will to alleged by plaintiffs (heirs of deceased) to be forged---Trial Court
decided such issue in favour of defendant, but Appellate Court and High Court
decided same in favour of plaintiffs---Contention of defendant was that
execution or genuineness of will was not challenged before Revenue of ficer,
where a son of deceased on the contrary had stated that their father had
deprived them of inheritance rights by executing such will; that parties before
Trial Court had agreed that copy of will produced by plaintiffs would be read as
part of evidence; that one marginal witness as D.W. had stated that such will
had been executed by deceased; and that findings of Appellate Court and High
Court were based on misreading and non-reading of record---Supreme Court
granted leave to appeal, inter alia, to consider such contention and reappraise
evidence.

Side Appellant : SHAH MUHAMMAD
Side Opponent : ATTA MUHAMMAD
----S.42---Transfer of Property Act (IV of 1882), S.118---Constitution of

Pakistan (1973), Art. 185(2)---Suit for declaration that exchange deed and
mutation of exchange sanctioned on its basis were void on account of
non7payment of Rs.75,000---Suit decreed by Trial Court was upheld by
Appellate Court, but same was dismissed by High Court in revision filed by
defendant---Validity---execution of exchange deed and sanction of mutation on
its basis was not denied---Plaintiff had neither demanded alleged amount at
time of registration of exchange deed before Registrar nor taken any step to
inform Revenue Authorities not to sanction mutation---No fraud had been
committed on plaintiff nor there was any evidence in support of allegation of
fraud---Condition of payment of such amount was not incorporated in exchange
deed---Existence of exchange deed was not disputed---Non-payment of such
amount would not undo transaction---Plaintiff could avail proper remedy for
recovery of amount as consideration for exchange of land---Same being a
question of fact could not be gone into by Supreme Court through reappraisal
of evidence---Supreme Court dismissed appeal on merits.

Side Appellant : KHAWAS KHAN through Legal Heirs
Side Opponent : SABIR HUSSAIN SHAH and others
----S. 42---Suit for declaration of ownership of immovable property--Stated

executant of document was a Pardanashin lady---Burden of proof
---Requirements---Party placing reliance upon the document would have to
prove execution of said document showing that the Pardanashin lady
understood the terms of the deed and the deed was read over and explained to
her
Page No. 31 of 61
Side Appellant : ABDUL GHANI
Side Opponent : KHALIL AHMAD
----S.19---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973),

Art. 185(3)---Suit for declaration ---Plaintiff and defendant being brothers
jointly purchased state land in defendant's name---Defendant through
agreement acknowledged half share of plaintiff and delivered him his share of
land---Plaintiff filed suit when later on dispute arose between two brothers---
Trial Court decreed suit---Appellate Court dismissed suit, which judgment was
upheld by High Court in revision---Validity---Plaintiff had produced convincing
evidence to substantiate execution of agreement---Mere denial of defendant
would not shatter same, unless and until same was substantiated from
record---None of the forums below had doubted execution of agreement---
Findings of Appellate Court affirmed by High Court were that such agreement
had been c :eluted without securing prior permission from Collector under S. 19
of Colonization of Government Lands (Punjab), Act, 1912-
Citation Name : 2004 CLC 203 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : Mst. KISHWAR
Side Opponent : ABDUL DEHYAN
---S. 12---Finding given by Family Court on matrimonial matters, nature and

binding force and execution of ---Any declaration /findings given by Family
Court on matrimonial matters and matters ancillary thereto were judgments in
rein which would be binding on whole world---Unless and until decree of a
competent Court was set aside by adopting proper legal procedure, it would
have overriding and superimposing legal effect on all other documents including
so-called Tamleek mutation because legally it occupied a very high pedestal as
strong legal sanctity was attached to it---As parties in the present case had
settled matter amicably through mutual consent and consent decree of Family
Court was passed thereon there was no need for the plaintiff to execute the
same---Need for execution of decree would arise when judgment-. debtor openly
and publicly would refuse to abide by the Court decree, but when decree was
passed on consent, no such eventuality would arise to execute the same.

Side Appellant : Malik MUHAMMAD ZUBAIR
Side Opponent : Malik MUHAMMAD ANWAR
----S. 41---Benami transaction---Ingredients---Suit for declaration was filed by

the petitioners claiming that they were co-owners through succession of a
disputed property which was put benami through a sale deed in the name of
one of the respondents who was their brother, but in truth their deceased father
was the owner of the same---Suit of the petitioners was decreed by the trial
Court---Decree was set aside in appeal on the ground that the suit was filed by
the petitioners after a long time of the execution of the sale-deed and that too
after the death of their father---Validity---In order to ascertain if the transaction
was benami or not, there were five important ingredients that needed to be
proved, namely the motive, source of money with which the property was
purchased, the possession of the property, the conduct of the parties as to how
the property was dealt with and possession of the original title documents.
Page No. 32 of 61
Side Appellant : NOOR SHAH GULL KHAN
Side Opponent : HAZRAT GULL KHAN
----Ss. 42 & 54---Transfer of Property Act (IV of 1882), Ss.54--Contract Act (IX
of 1872), S.2(h)---Suit for declaration of title and permanent injunction---
Agreement to sell---Defendant claimed to be in possession of half of suit land
under agreement to sell by plaintiff--Courts below concurrently decreed suit---
Validity---Plaintiff had proved his title to entire land by producing registered
sale-deed---Agreement to sell would not create any title-- -Defendant being
beneficiary of alleged agreement had to prove sale transaction incorporated
therein---execution of agreement to sell by plaintiff had not been proved---
Alleged agreement prepared two decades back had never seen maturity in form
of sale-deed---.Marginal witnesses of agreement were close relatives of
defendant---Statements of defendant's witnesses were self contradictory and
opposed to agreement---

Side Appellant : Dr. SAMINA KHAN
Side Opponent : Dr. ASHFAQ AHMAD KHAN and 3 others
----S.42---Suit for declaration ---Order for maintenance was passed by the

Arbitration Council on- the application of the father of the wife in 1973---
Application for execution was filed in 1978 which was contested by the
plaintiff---Plaintiff (husband) had knowledge of the order of maintenance, as
such limitation had started to run against him.

Side Appellant : MUHAMMAD AJAID
Side Opponent : MUGHAL HUSSAIN
--- Gift---Marz-ul-Maut---Donee alleged oral gift in his favour by donor followed

after two months by acknowledgment deed executed on 27-4-1984 in presence
of witnesses ---Donee or his witnesses did not allege date, time and place of
declaration of gift by donor---Acknowledgement deed did not find mention that
possession had been delivered to donee two months prior to its execution ---No
documentary proof of delivery of possession---Such deed was not entered in
Rapt Roznamcha---Gift mutation contained statement that same was in
accordance with acknowledgement deed---Donee's case was not that gift had
been made through acknowledgement deed---Mere production of scribe and
marginal witnesses of such deed, thus would not absolve donee to prove valid
gift in his favour---Donee had not denied entry in death certificate of donor
showing his death on 15-7-1984 due to Cancer in 85 years of age---Donor at
time of execution of acknowledgment deed was suffering from a disease in
which patient always remains under immediate apprehension of death--No valid
gift in favour of donee by donor had been proved in circumstances.
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Page No. 33 of 61

CLD

Side Appellant : MUBARIK SHAH
Side Opponent : RAZIA BIBI
----S. 42---Transfer of Property Act (IV of 1882), Ss.122 & 123---Suit for
declaration ---execution of gift, proof of --Plaintiffs had claimed that they were
owners of suit-land according to their shares being legal heirs of its original
owner and that mutation of alleged gift got sanctioned by the defendants in
their favour was based on fraud and being illegal was liable to be set aside--
Plaintiff, had further alleged that subsequent transfer by defendants through
mutation to other defendant was also illegal---Plaintiffs had alleged that their
predecessor had handed over the possession of suit-land to the defendants as
tenants who had been paying the plaintiff's share of produce up to 1994, but
later on, they refused to give plaintiff share of produce and denied ownership of
plaintiffs with regard to the suit-land and with connivance of Revenue Staff got
sanctioned gift mutation in their favour--Trial Court dismissed the suit, but
Appellate Court set aside the judgment and decree of Trial Court--

Side Appellant : JAN MUHAMMAD
Side Opponent : COLLECTOR, DISTRICT JHANG and 3 others
----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 17, 79, 117 & 120---Civil
Procedure Code (V of 1908), S.115---Suit for declaration --execution of
document---Onus to prove---Principles---Concurrent findings of facts by the
Courts below---Revisional jurisdiction of High Court, exercise of ---Plaintiff
asserted that power of attorney executed by defendant in favour of plaintiff was
not void as the defendant was major at the time of its execution ---Both the
Courts below concurrently found the defendant as minor and dismissed the suit
as well as appeal filed by the plaintiff---Validity---When defendant denied
execution of document, the onus shifted to plaintiff to prove the same in
accordance with the provisions of Arts.17 and 79 of Qanun-e-Shahadat, 1984---
Both the Courts below had given concurrent findings of fact against plaintiff
after proper appreciation of evidence---
Page No. 34 of 61
Side Appellant : SHOUKAT ALI and others
Side Opponent : MUHAMMAD ANWAR and others
----Ss.8 & 42---Qanun-e-Shahadat (10 of 1984), Arts.72 & 79--declaration of

title and recovery of possession---execution of power of attorney---Onus to
prove---Non-production of original power of attorney---Effect---Failure to
produce marginal witnesses or scribe of the document---Plaintiff denied having
executed any power of attorney in favour of the defendant and also denied sale
of the suit land---Plaintiff was resident of place "G" while the power of attorney
was attested at place "S"---Suit land was sold by the attorney to different
persons on the basis of disputed power of attorney---Attorney though appeared
as a witness, yet did not produce the original power of attorney in the Court,
wherefrom thumb impression/signatures could have been compared--

Side Appellant : Syed REHAN SHAH
Side Opponent : Syed KAFAIT HUSSAIN SHAH
----S. 42---Transfer of Property Act (IV of 1882), Ss.53-A, 54 & 55--Suit for
declaration ---Sale of property, proof of ---Plaintiffs had claimed that suit
property owned by defendants was sold out to plaintiffs through agreement of
sale on consideration and that possession was delivered to plaintiffs---
Defendants in their written statement had totally denied having entered into
agreement of sale with plaintiffs and having received any money or to have
delivered possession to the plaintiffs---Plaintiffs could not prove execution of
alleged sale agreement in their favour by any evidence and also could not prove
matter of taking possession of suit-land which was lying vacant---No
construction was made on suit-land and there was no boundary wall which
could hardly make out a case of delivery of possession and part performance of
alleged agreement of sale---Plaintiffs having failed to prove execution of
agreement of sale in their favour and taking possession of suit property, Trial
Court had rightly dismissed suit and Appellate Court was not justified to set
aside judgment and decree of Trial Court.
Citation Name : 2004 YLR 2464 KARACHI-HIGH-COURT-SINDH

Side Appellant : NATIONAL INSURANCE COMPANY LIMITED
Side Opponent : MUHAMMAD SADIQ and another
----S. 42---Civil Procedure Code (V of 1908), Ss. 51, 151 & O.XXI, Rr. 32, 37,
43 & 54---Constitution of Pakistan (1973), Art. 199---Constitutional petition---
Suit for declaration ---execution of decree---Suit in the post remand
proceedings was again decreed and decree was drawn accordingly in favour of
the plaintiff--Defendant un- -successfully challenged such judgment and decree
passed against it before Appellate Court, revisional Court and finally before the
Supreme Court---Validity of such decree could not be re-examined with
reference to the contentions raised in Constitutional petition at a belated
stage---Suit of plaintiff was decreed in full as per prayers made in the plaint---
Contention that there being ambiguity in the decree, benefit of such
ambiguity/doubt should be given to defendant, was repelled, in circumstances
Page No. 35 of 61
---Mere non-mentioning of the words "as prayed" in the judgment, would not
denote that suit was partly decreed---

Side Appellant : MUHAMMAD HAKIM KHAN
Side Opponent : SARDAR KHAN
----Ss.8, 42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for

declaration , perpetual injunction and possession---Plea pf minority of one of
the defendants was not taken by the plaintiff either before the Trial Court or
before Appellate Court---Said plea could not be taken before High Court under
its revisional jurisdiction---Plaintiff hart also failed to make City Survey of ficer
as party in the suit as according to plaintiff disputed property was mutated in
the Record of Right in the year 1977 by the City Surveyor whereas Iqrarnama in
question in respect of said property was allegedly executed in the year 1963,
long after 14 years of execution of Iqrarnama--Plaintiff also having not prayed in
his suit for cancellation of said entries, the very suit of plaintiff was barred
under S. 42 of Specific Relief Act, 1877---Plaintiff having failed to point out any
illegality or irregularity which could justify High Court to reverse the concurrent
findings of two Courts below in its revisional jurisdiction, revision petition was
dismissed.

Side Appellant : Mst. RAHAT BEGUM
Side Opponent : Syed HASHMAT ALI SHAH through Legal Representatives and
others
----S. 42---Transfer of Property Act (IV of 1882), S.54---Suit for declaration

---execution of sale agreement---Mother of both plaintiff and defendant
executed sale agreement in favour of defendant in presence of Stamp Vendor
and her husband and sale-deed was executed in presence of Sub-Registrar and
her husband ---Executant of sale agreement had never raised any objection to
the execution of said document though she remained alive for a period of about
one year after execution of said saledeed---Signing of sale-deed by husband of
executant, who was father of both plaintiff and defendant, had further indicated
that executant of sale agreement/deed had assistance and advice of her
husband---
Citation Name : 2003 PLD 200 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : SHARIFULLAH KHAN
Side Opponent : ABDULLAH KHAN
---S. 42---Suit for declaration to the effect that the plaintiff was in possession
of agricultural property and a house, as his gifted property and the defendant
had no right to deny the ownership and possession of the plaintiff and if the
defendant was in possession of any documents regarding the property
mentioned in the list with the plaint, then the same were forged and fictitious
and ineffective upon the rights of the plaintiff---Both the Courts below had
concluded that the plaintiff had produced sufficient evidence in support of the
execution of the alleged gift deeds whereas the defendant could not produce
such type of evidence as the witnesses were not only related to the defendant
Page No. 36 of 61
but the number of witnesses was also insufficient--Courts below laid much
stress on the production of witnesses in support of gift deeds but ignored to
assess the evidentiary value in the light of necessary ingredients such as
possession of the alleged gifted property---Evidence of both the parties rested
only on the point of execution of the gift deeds and not on possession---
Evidence showed that possession had not been delivered to the plaintiff---
Validity---Relationship of witnesses with the defendant was no disqualification
and only two witnesses were sufficient for the purpose of a document---Number
of witnesses produced by the parties, therefore, could not be compared for
arriving at a just conclusion, as it was the quality of evidence to be appreciated
by the Courts in such-like cases---If the witnesses produced by the defendant
were related, the evidence of plaintiff also showed that his witnesses were also
related to him, and therefore, two different yardsticks were not required to be
applied while appreciating the evidence of both the parties---High Court, set
aside the impugned judgments and decrees of the Courts below and it was
declared that the plaintiff had not proved the execution of the gift deeds in his
favour, hence the property of the deceased being joint between the parties
would be distributed amongst the legal heirs of the deceased in accordance with
"Sharai" shares of the parties.
Citation Name : 2003 YLR 1643 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : SHAMIM KAUSAR BUKHARI
Side Opponent : Mst. Syeda KHIZRA SULTAN
----Ss.8 & 42---Suit for declaration of title and for possession---execution of

sale-deed, proof of ---Plaintiff claimed that she was owner to .the extent of 1/2
share of suit land and had challenged registered sale-deed in respect of her
share in favour of defendant alleging that such sale-deed was outcome of fraud
and collusion besides same being without consideration---Defendants could not
prove by any evidence that plaintiff who was Pardanashin lady, was same lady
who executed sale-deed, received sale consideration and appeared before the
Sub-Registrar---Said important pieces of evidence were overlooked by Courts
below by concurrently dismissing suit filed by plaintiff---Concurrent finding of
Courts below to the effect that plaintiff appeared and executed sale-deed in
favour of defendant, were reversed in revision by High Court holding that
plaintiff did not enter into agreement nor did she appear before the Sub-
Registrar and that alleged registered sale-deed was of fspring of fraud and
collusion and void to the extent of rights of plaintiff.

Side Appellant : MUHAMMAD AFZAL KHAN
Side Opponent : MUHAMMAD SADIQ
----O. XXI, R. 32---Specific Relief Act (I of 1877), S.42---execution of decree

passed in a declaratory suit---Objection petition---Suit of the plaintiff for
declaration regarding suit property was disposed of on the statement of the
defendant that he would not make any construction on the suit property---
Application of the plaintiff moved under O.XXI, R.32, C.P.C. was accepted up to
the First Appellate Court---Contention of the defendant was that no decree was
ever passed against him and order of execution was illegal---Validity, only a
.decree for specific performance of the contract or injunction if passed by the
Court was to be executed provided the judgment-debtor wilfully failed to obey
the same---Proceedings could be initiated only where a party against whom a
decree had been passed, and in the present case no such decree against the
defendant had been passed and in fact the defendant had made a statement
Page No. 37 of 61
and on his undertaking the suit was disposed of ---Contention of the defendant
was upheld in circumstances.
1| 2| 3| 4| 5| 6| 7| 8| 9| 10|

CLD

Side Appellant : KHURSHID BIBI
Side Opponent : SARDAR MUHAMMAD
---Ss. 42 & 54.--Civil Procedure Code (V of 1908), S.11--- Settlement Scheme

No.1-.-Suit for declaration and permanent injunction---Principle of res judicata,
applicability of ---Question as to whether or not plaintiffs had executed
agreement of association with defendant and had surrendered their rights in
property to defendant had already been considered by High Court in
Constitutional petition filed by the plaintiffs---Plaintiffs had re-agitated the
matter of execution of agreement in suit filed before Civil Court---Civil Court, in
circumstances; had rightly dismissed suit holding that it was hit by principle of
res judicata and judgment of Trial Court was upheld in appeal by Appellate
Court--Concurrent findings of fact by two Courts below of competent
jurisdiction could not be interfered with by High Court in exercise of its
revisional jurisdiction.

Side Appellant : MUHAMMAD ARIF
Side Opponent : MAHMOOD ALI
----Ss.12 & 42---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for declaration

and specific performance of agreement of sale ---Allottee of suit-land in whose
favour proprietary rights were transferred, had executed registered sale-deed on
the same date in favour of defendant and conveyed title to suit-land in his
Page No. 38 of 61
favour---Plaintiffs had claimed that transferee of suit-land had earlier in time
executed an agreement of sale in respect of suit-land in their favour after
receiving earnest money--Plaintiffs had also claimed that they were in
possession of suit-land at the time of sale-deed allegedly executed by transferee
in favour of defendant, thus defendant was put to notice of their interest in
suitland---Plaintiffs had contented that defendant could not claim to be a bona
fide purchaser of suit-land for valuable consideration without notice of the prior
right of plaintiffs who had purchased suit-land earlier to the defendant---Courts
below concurrently decreed suit by plaintiffs--Validity---Alleged agreement of
sale executed in favour of plaintiffs was witnessed by two marginal witnesses,
but only one appeared in the Court and no explanation had been given for not
producing the other marginal witness---Requirements of Art.79 of Qanun-e-
Shahadat, 1984 having not been complied with, alleged agreement of sale could
not be relied upon as evidence---Witness produced as marginal witness also did
not qualify as a marginal witness as there was difference in statement of said
witness and the plaintiffs with regard to amount of consideration---Stamp paper
for alleged agreement was purchased two years prior to execution of agreement
and said stamp paper proved to have been purchased for other person and
names of parties were forged therein---Such circumstance had clearly
undermined the authenticity of the alleged agreement of sale--Courts below
were not legally justified in placing reliance on statement of original transferee
of suit-land who resiled subsequently from his statement made in his written
statement---Courts were not legally justified to decree the suit in view of such
discrepancy--Courts having acted with material irregularity in exercise of their
jurisdiction, concurrent judgment of Courts was set aside by High Court, in
exercise of its revisional jurisdiction.

Side Appellant : Ch. MUHAMMAD BOOTA
Side Opponent : Mst. BANO BEGUM
Specific Relief Act 1877 ----Ss. 39 & 42---Limitation Act (IX of 1908), Art.144---
Suit for declaration and cancellation of gift deed made by donor (mother) in
favour of defendant (her son) excluding plaintiff (her daughter)---Suit was
dismissed by Trial Court, but decreed by the Appellate Court--Validity---Donor
was an old, ailing and illiterate lady, who died after few months of alleged gift---
Not proved on record that contents of gift deed were read out to donor and she
after hearing and understanding its contents had admitted correctness thereof
---Original gift deed placed on record during pendency of revision petition before
High Court contained thumb-impressions of donor at four places and each
thumb-impression appeared to be different to naked eye---Perhaps for such
reason only attested photo copy of gift deed had been exhibited in evidence in
which thumb-impressions were not clear for purpose of comparison---Such
exhibit was a suspect document and Appellate Court had rightly not relied
upon the same and had rightly reversed findings of Trial Court--Donor (mother)
had no knowledge about real nature of document got prepared by defendant,
rather she was duped and her thumb-impression had been obtained through
misrepresentation---Donor had never consciously made the gift of property in.
favour of defendant--Mere signatures or thumb-impressions on a deed were not
sufficient to prove execution thereof in each and every case without regard to its
peculiar facts and circumstances---Plaintiff had bona fidely believed that she
was a co-sharer in inheritance left by her mother and waited for about eleven
years in the hope that she would be given her share, but on being disappointed,
she ultimately filed suit against the defendant.
Citation Name : 2003 PTD 2090 KARACHI-HIGH-COURT-SINDH
Page No. 39 of 61
Side Appellant : AKHTAR HUSSAIN
Side Opponent : COLLECTOR OF CUSTOMS (APPRAISEMENT), CUSTOMS
HOUSE, KARACHI
----Ss.32, 79, 219 & 223---Customs General Order 12 of 2002--Amendment in

the Bill of Entry is permissible under law---Importers in the present case, had
opted for first appraisement and through C.G.O.12 of 2002, the CBR had
instructed that the importers may not be charged for misdeclaration under
S.32, Customs Act, 1969 where the importers had opted for first appraisement
for the determination of correct description PCT heading and quantity of
goods---Effect---Any administrative order, violative of the provisions contained
in the statute was bad and invalid to the extent of inconsistency---Instructions
issued by the C.B.R. under S.219, Customs Act, 1969 were binding on all the of
ficers of the Customs employed in the execution of Customs Act, 1969 by virtue
of provision contained in S.223 of the Customs Act, 1969---If, as in the present
case, there was any conflict in the instructions issued by the CBR and the
instructions/orders issued by the of ficer subordinate to the CBR,
instructions/orders issued by the subordinate of ficial were invalid and
inoperative to the extent of the conflict.

Side Appellant : SULTANA AHMED
Side Opponent : SINDH INDUSTRIAL TRADING ESTATE LTD
----Ss. 42 & 55---Suit for declaration , injunction, cancellation of deed,

possession, mesne prof its and damages---Lease of the plaintiff had been
illegally cancelled by the Leasing Authority : no show-cause notice was issued
to the lessee before cancellation of the lease; lessee had the permission of the
lessor Authority to sublet the leased land and subsequent lease of the land to
another party by the Leasing Authority was not legal and valid---Validity---Held,
the present case was of extreme highhandedness by the of ficers of the Leasing
Authority who had abused their authority being public functionaries by
concealing the record from the Court which was subsequently brought to the
notice of the Court by way of comments---Public functionaries were obliged in
law to discharge their duties fairly and in the present proceedings the of ficers
appeared to have overstepped all the nouns of law in order to deprive the
plaintiff from her valuable rights to enjoy her property which she had lawfully
acquired by virtue of a registered document and in that respect the of ficers had
shown undue favour to the defendant---Action of the of ficers clearly fell within
the mischief of "maladministration" as defined under S. 2(2) of the
Establishment of the of fice of Ombudsman for the Province of Sindh Act,
1991---Plaintiff had suffered mental agony for which the Leasing Authority was
directed by the Court to compensate her by making payment in the sum of
Rs.30, 000 per year from the date of cancellation of the lease of the plaintiff till
the date of judgment on account of their illegal acts with mark-up at the
prevalent Bank rate till the entire amount was paid to the plaintiff---of fice was
further directed to refer the matter to the Ombudsman under S. 9 of the said
Act to investigate the actions of the of ficers in regard to cancellation of lease of
the plaintiff and subsequent execution of lease in favour of the defendant and
he may join any other of ficer of the Department whom he felt was also
instrumental in the said act of maladministration and may pass appropriate
orders in terms of the Act as the matter ex facie fell within the mischief of
maladministration ---Suit was decreed accordingly.

Side Appellant : Mst KHURSHEED BEGUM
Page No. 40 of 61
Side Opponent : KARACHI DEVELOPMENT AUTHORITY
---Ss.42, 54 & 56(d)---Civil Procedure Code (V of 1908), O. VII, R. 11 & O.

XXXIX, Rr. 1 & 2---Sindh Public Property (Removal of Encroachment) Act (V of
1975), Ss.3 & 4--Suit for declaration and injunction—Temporary injunction,
grant of --Construction of Express Way---execution of lease deeds in favour of
plaintiffs in unauthorised manner and construction raised without approved
plan ---Plaintiffs could not claim to be lawful owner of plots in question and
respondents were 'free to cancel lease upon payment of amount paid by them--
Grant of injunction in such circumstances would amount to interference with of
ficial duties of public of ficers falling within provisions of S.56(d) of the Act---
Prayer in suit could not be granted---Plaint was rejected in circumstances.
Citation Name : 2003 MLD 1064 KARACHI-HIGH-COURT-SINDH

Side Appellant : PREMIER MERCANTILE SERVICES (PVT.) LTD.
Side Opponent : TRUSTEES OF PORT OF KARACHI
----Ss.42, 54 & 55---Suit for declaration and injunction-Tender for

construction of terminal on Built-Operate-Transfer basis---Defendant after
accepting single bid of plaintiff discharged same due to its conduct, who was in
litigation with defendant in respect of outstanding dues--Plaintiff prayed for
declaring such discharge as of no legal effect, directing the defendant to
consider its bid and restraining tie defendant from calling fresh tenders till its
single bid was considered--- Defendant's plea was that mere acceptance of bid
would not create any right in favour of plaintiff---Validity---Plaintiff, who had
been in litigation, had disclosed such fact during pre-qualification process, bat
was pre qualified in spite of such disclosure---Different Evaluation Committees
after examining and finding such bid as most favourable to the defendant had
recommended for negotiation with the plaintiff---Conduct of a party having
litigated for its right could not be equated with a party, whose past conduct in
execution of work was poor---Bid had not been, refused being single---Action of
the defendant to discharge tender on ground of litigation was not only
irrational, but unjust and unfair---Suit was decreed with direction to defendant
to consider plaintiff's bid in thorough and transparent manner.

Side Appellant : RUKHSANA TABASSUM SHAIKH
Side Opponent : KAZIM IMAM JAN
Code of Civil Procedure 1908 ----S. 11 & O. XXXIX, Rr. 1, 2---Interim

injunction ---Res judicata, principle of ---Applicability---Plaintiff's case was
based on declaration of gift and mutation which was effected in favour of the
plaintiff and was in violation of order passed earlier by High Court---Defendants
were in possession of the suit property at the time of gift/declaration of gift and
no allegation of damage, alteration and addition was alleged by the plaintiff---
Contention of plaintiff was that the original documents were in her
possession---Validity---declaration of gift was void for want of possession---
when the original owner had denied the execution of power of attorney in favour
of the plaintiff and had appointed one of the defendants as his attorney, then
the possession of original documents did not make a prima facie case for grant
of interim injunction in favour of the plaintiff---Even otherwise if any change
was effected in respect of the suit property during the proceedings, the principle
of lis pendens would come into play as envisaged under the provisions of S.52
of Transfer of Property Act. 1882---High Court declined to pass restraint order
in favour of the plaintiff---Application was dismissed in circumstances.
Page No. 41 of 61
Side Appellant : MUHAMMAD RAFIQUE
Side Opponent : MUHAMMAD ISMAIL
Specific Relief Act 1877 ----S. 42---Suit for declaration of ownership of

property---Plea of sale of land in question---Sale agreement did not show that
the alleged amount of sale was paid---No documentary evidence was produced
to prove that the payment was made---One of the alleged marginal witnesses of
the agreement unequivocally stated that the amount of the sale was never paid
in his presence and that he did not know as to whether on the alleged receipt of
money-it was his thumb-impression---Other marginal witness stated that the
alleged vendor put his thumb-impression on the documents and he received
specified amount at the time of execution of the receipt in the presence of the
other marginal witness which statement was contradicted by the said other
witness on oath and stated that nothing was ,paid or received by the alleged
vendor---Original record of mutation was not produced but the copy of the
same was filed ---Roznamcha Waqiati was produced and the witness admitted
on oath that the original entry was not made in his hand---High Court, after
analysing and examining the record had rightly found that agreement was
cooked up in order to make out a case of disposition of the land and reversed
the findings of the Courts below---Trial Court as well as the First Appellate
Court had not considered the case in its true perspective and the High Court
had rightly found that there was complete misreading and non-reading of the
material evidence by reversing, the findings of the two Courts below--Judgment
of the High Court being not open to exception, Supreme Court declined
interference in circumstances.

Side Appellant : MUHAMMAD SADIQ
Side Opponent : MUHAMMAD RAMZAN
Specific Relief Act 1877 ----Ss. 8 & 42---Colonization of Government Lands

(Punjab) Act (V of 1912), S.19---Registration, Act (XVI of 1908), Ss.47 & 48---
Transfer of Property Act (IV of 1882), Ss.43 & 54---Constitution of Pakistan
(1973), Art. 185(3)---Suit for possession without seeking declaration of title--
Plaintiffs claimed to have purchased State land from its allottee in year 1966
through twenty-five unregistered sale-deeds each of value Rs.49.93--
Defendants'plea was that sale in favour of plaintiffs before acquisition. of
proprietary rights by allottee and sanction under S.19 of Colonization of
Government Lands (Punjab) Act, 1912, was of no legal consequence as allottee
being not owner of suit land could not legally pass on title to plaintiffs; and that
allottee after acquiring proprietary rights in year 1971 had sold the land to the
other defendants through registered said-deed---Trial Court dismissed the suit,
whereas Appellate Court decreed the suit, which decree was affirmed in second
appeal by High Court---Validity---Sale of suit land by allottee without
acquisition of proprietary rights would not take legal effect and its operation
would remain suspended till proprietary rights were acquired by
allottee/vendor---Unregistered sale-deeds were executed with the intention that
subject to'fulfillment of conditions contained in S.19 of Colonization of
Government Lands (Punjab) Act, 1912, the same would be a complete sale for
all practical purposes and beneficiary thereof could competently tile suit for
possession against the occupants---Value of each sale-deed in favour of
plaintiffs being less than Rs.100 did not require registration, thus, the same at
the time of execution would acquire the status of .contract of sale, which would
be enforceable as a legal document for establishing the title on acquisition of
proprietary rights by vendor---No cogent evidence of acquisition of proprietary
Page No. 42 of 61
rights of suit land by allottee in year 1971 was brought on record---Sale
through unregistered sale-deeds in favour of plaintiffs being not suffering from
any legal defect would create a valid title in their favour in suit land, which
could not be denied for mere fact that defendants were in possession of
registered sale-deed- --Concurrent findings of fact regarding ownership of
property being not suffering from any legal or factual infirmity could not be
interfered with by invoking the provisions of S.19 of Colonization of Government
Lands (Punjab) Act, 1912---Sale in favour of the plaintiffs, . in the given facts
and nature of dispute between the parties, would not be hit by S.19 of the
Act---Supreme Court dismissed the appeal in circumstances.
1| 2| 3| 4| 5| 6| 7| 8| 9| 10|

CLD

Side Appellant : GHULAM MUHAMMAD
Side Opponent : FAROOQ AHMED
Specific Relief Act 1877 ----S. 42---Constitution of Pakistan (1973),

Art.185(3)---Suit for declaration ---Plaintiff challenged the sale of her land in
favour of defendant (her brother) on the ground that she was an illiterate and
Pardanashin lady and while suffering from illness, the defendant got her power
of attorney executed in favour of a third person Authorising him to dispose of
her land, who then transferred the same to defendant---Trial Court decreed the
suit--Appeal and revision petition filed against such decree were dismissed--
Validity---Defendant could not point out any misreading, misconstruction or
non-reading of any material piece of evidence by any of the Courts below in
arriving at the conclusion that power of attorney obtained by him from plaintiff
was the result of fraud and misrepresentation---Plaintiff had (5) sons and
husband, but none of them was made to be present at the time of execution of
power of attorney---Defendant was the real brother of plaintiff, thus, it could
safely be presumed that he in order to grab the share in the property inherited
by his sister from their father, had obtained the power of attorney by fraud---
Supreme Court refused to grant leave to appeal and dismissed the petition
being devoid of merits.
Page No. 43 of 61
Side Appellant : MUHAMMAD ASHRAF
Side Opponent : MUHAMMAD BASHIR
----Ss. 42 & 54---Transfer of Property Act (IV of 1882), S. 4---Qanun-e-

Shahadat (10 of 1984). Art. 100---Suit for declaration and permanent
injunction---Transfer of land, proof of ---Plaintiffs had claimed that original
owner of suit-land had sold half share of his land in their favour by registered
sale-deeds allegedly executed by original owner in their favour and that
defendants who were successors of deceased owner of land were interfering with
their possession---Both Courts below decreed the suit---Whole claim of
plaintiffs depended on unregistered sale-deed allegedly executed by original
owner of land about eleven years before his death whereas mutation of
inheritance in favour of defendants who were successors of deceased owner was
attested in their favour only four months prior to death of owner of land---No
evidence was on record to prove that land alleged to have been transferred by
owner thereof vide sale-deeds was the suit-land--Contents of plaint had been
denied by defendants/successors of deceased and no attempt had been made
by plaintiffs to establish nexus between sale-deed and land claimed by
plaintiffs---None of plaintiffs/alleged vendees of suit-land despite being alive,
entered witness-box to prove sale in their favour and their failure to enter
witness-box was fatal---Owner/alleged vendor of suit-land remained alive for a
period of about eleven years after alleged execution of sale-deeds, but
plaintiffs/alleged vendees could not explain as to why sale-deeds were not got
incorporated in Revenue Record in lifetime of alleged vendor---Courts below
relied on Art. 100 of Qanun-e-Shahadat, 1984 to hold that sale-deed which was
thirty years old had stood proved, but Courts below did not care to read those
documents---Courts having misread evidence on record, judgments and decreed
were set aside by High Court.

Side Appellant : Mst. NARGAS PARVEEN
Side Opponent : Rana NASRULLAH KHAN BABAR
----S.42---Suit for declaration ---Power of attorney, proof of execution

---Original owner of suit-land had died and was survived by widow, three
daughters and one son and land left by deceased owner devolved on his legal
heirs according to Islamic Law of Inheritance and inheritance mutations in that
respect were attested accordingly---Son of deceased on basis, of power of
attorney allegedly executed by his sisters in his favour gifted away properties of
his sisters to his own sons and wife who further alienated the land to vendees---
On coming to know said. transactions, three sisters/daughters of deceased filed
suits for declaration alleging that said transactions were illegal and void as they
had never authorised, their brother/defendant to gift away or alienate their
land---Plaintiffs denied execution of power of attorney in favour of their
brother/defendant--Suits were resisted by defendant and claimed that power of
attorney was validly executed in his favour by plaintiffs and all other
transactions made on basis of same were valid--Trial Court dismissed suits, but
Appellate Court set aside judgments and decrees of Trial Court and decreed suit
as prayed for by plaintiffs ---Matter went up to Supreme Court and case was
remanded to give a definite finding regarding genuineness or otherwise of
alleged power of attorney on basis of evidence on record and also to decide
subsequent transaction of gift and sale of suit property made on basis of power
of attorney---Witnesses produced by defendants to prove execution of power of
attorney in favour of defendant could not prove its execution as statements of
all those witnesses were absolutely discrepant--Statement made by one of
Page No. 44 of 61
plaintiffs in Court was in line with plaint---Said plaintiff though was cross-
examined, but she was not at all confronted with disputed power of attorney--
Finding of Trial Court that execution of power of attorney was proved by
defendants, could not sustain---execution of alleged power of attorney having
not been proved all subsequent ,transaction based on same were void.

Side Appellant : MEHMOOD-UL-HASSAN BABAR KHAN
Side Opponent : LIAQAT ALI KARIM
----S. 14(i)(j)---Punjab Local Government Elections Rules, 2000, R.76(1)---

Constitution of Pakistan (1973), Arts.62(d) & 199--Constitutional petition
---Election---Concealing of assets---Character of candidate ---Non framing of
issues by Election Tribunal--Allegation against returned candidate was that at
the time of filing of nomination papers, the candidate had concealed his assets
in Form XIX which were in shape of share certificates of a company---Returned
candidate asserted that the total assets of the company had already been
attached during execution proceedings of judgment and decree passed by
Banking Court, therefore, the value of shares was nil or minus---Election
Tribunal recorded evidence and allowed election petition; resultantly the
election was set aside---Plea of the returned candidate was that the Election
Tribunal did not frame any issue and the candidate was prejudiced due to such
non framing of issues---Validity---In spite of non framing of issues, the returned
candidate tried to dislodge the allegation by producing all oral as well as
documentary evidence, therefore, he had not been prejudiced in any manner by
non framing of issue by the Election Tribunal; even otherwise framing of issues
was not mandatory ---Non framing of issues was not sufficient to set aside
judgment even passed in a civil suit, where framing of issues was mandatory--
Candidate, in the present case, had not been prejudiced in any manner---
Election Tribunal had rightly found that the returned candidate had concealed
and has not denied the omission on his part by not declaring his assets i. e.
shares certificates in Form XIX---Candidate himself could not sit as a judge of
his own cause for determining value of share certificates to be nil or minus,
when the procedure was open for winding up of the company under 5.402 of
the Companies Ordinance, 1984---Election Tribunal had rightly found that
non-declaration of huge quantity of shares of the company was a deception and
was not a symbol of good character---High Court declined to interfere with the
order passed by the Election Tribunal---Petition was dismissed in
circumstances.

Side Appellant : MUHAMMAD RASHEED
Side Opponent : GHULAM RASUL
---S.42---Suit for declaration ---Claim of plaintiff was that agreement of sale

allegedly executed in favour of defendants was bogus and fictitious and was
without consideration and that defendants had failed to prove execution thereof
---Defendants had resisted suit contending that sale agreement was duly
executed in their favour by plaintiff alongwith two other vendors---Agreement
stating terms and conditions of sale of land in question was very much on
record which bore signatures of three vendors and a witness, but apart from
plaintiff all other signatories of agreement were dead by the time suit was
filed---When Courts were faced with such a situation particularly in civil lis they
would tend to go by probabilities and if reasonable probability of existence or
absence of a relevant fact existed, case could be decided on said probability and
in such an event probability itself would constitute evidence of fact---In case it
Page No. 45 of 61
stood established that ever since execution of agreement to question,
defendants were in possession of land in dispute, they had paid entire price of
land in instalments and that they were paying land revenue thereof , such
conduct of parties could make a prudent man to act on supposition that
agreement had been entered into, and was performed by defendants---Courts
below, in circumstances, had rightly dismissed suit for declaration and it could
not, in circumstances, be said that said Courts had misread or had failed to
read evidence on record properly---Concurrent findings of Courts below could
not be interfered with by High Court, in circumstances.

Side Appellant : MUHAMMAD ASLAM
Side Opponent : MEMBER BOARD OF REVENUE
----Ss.42 & 54---Civil Procedure Code (V of 1908), S. 38---Suit for declaration

and perpetual injunction---execution of decree--Scope---Portion of decree which
is purely declaratory cannot be executed.

Side Appellant : MUHAMMAD AMIN
Side Opponent : Mst. SANTO alias GAMAN
Transfer of Property Act 1882 ----S.54---Specific Relief Act (I of 1877), S.42---

Sale of land---Suit for declaration ---Plaintiff who was owner of suit land had
challenged sale of land in favour of defendants made by her husband on basis
of general power of attorney allegedly executed by her in his favour---Plaintiff
had alleged that at the time of execution of general power of attorney in favour
of her husband, she was minor being only 10/12 years old and that she was
under undue influence of her husband at that time---Power of attorney
according to plaintiff was invalid and sale of land by her husband on its basis
did not confer any title on defendants/vendees of land---Validity---Even if
accepted, as contended by plaintiff that she attained majority about two and a
half years after execution and registration of general power of attorney in favour
of her husband, she should have sought cancellation of the same if it was her
desire that her husband should not have power to deal with her land---Sale-
deed in favour of defendants/vendees was executed by husband of plaintiff on
basis of general power of attorney after about six years from her attaining
majority at the time when she was residing with him---Plaintiff did not seek
cancellation of general power of attorney and thereby enabled third
parties/defendants to deal with her husband on basis of said power of
attorney---Plaintiff, in circumstances, must assume responsibility for
unchallenged acts of her attorney-husband, particularly when such acts were
supported by her own conduct---Defendants/vendees as bona fide purchasers
of suit land for valuable consideration without notice of any defect in authority
vesting in husband of plaintiff pursuant to power of attorney could not be
deprived of their rights in suit land---Plaintiff could find a cause of action
against her husband for his acts and undue influence allegedly exercised by
him over her but she could not avoid sale made in favour of vendees---
Judgment and decree passed by Appellate. Court reversing decision of Trial
Court was set aside in revision by High Court and judgment and decree passed
by Trial Court were restored.
Page No. 46 of 61
Side Appellant : MUHAMMAD SHARIF
Side Opponent : Mst. SARDARAN BIBI
Specific Relief Act 1877 ----Ss. 39, 42 & 54---Qanun-e-Shahadat (10 of 1984),
Arts. 17(2) & 79---Suit for declaration , permanent injunction and cancellation
of agreement to sell---Claim of plaintiff/was that Iqrarnama regarding sale of
plot in question was forged and fictitious---Trial Court dismissed suit, but on
appeal Appellate Court set aside judgment of Trial Court and decreed the suit---
Plaintiff who appeared as his own witness had failed to discharge onus of issue
relating to falsehood of Iqrarnama which otherwise was duly proved through
evidence of its marginal witness--Evidence on record had fully proved that
plaintiff had made general power of attorney in favour of brother of
defendant/vendee on the same date when agreement (Iqrarnama) to sell plot in
question was executed by her in favour of defendant/vendee and plaintiff had
admitted that she had thumb-marked blank papers on advice of brother of
vendee in whose favour general power of attorney was got registered by
plaintiff--Evidence of defendant/vendee and attesting witness was consistent,
coherent, reasonable and confidence-inspiring---Said witnesses fully proved
execution of valid agreement of sale, receipt of amount of consideration by
plaintiff/vendor and handing over possession of plot to defendant---Appellate
Court set aside judgment of Trial Court simply on ground that production of
only one attesting witness was insufficient to prove Iqrarnama and that at least
two attesting witnesses should have been produced---Agreement to sell was not
required to be attested by witnesses under Art.79 of Qanun-e-Shahadat,
1984---Production of two marginal witnesses or scribe in circumstances, was
not necessary--Judgment and decree passed by Appellate Court being - not
based on evidence on record and having been passed by misinterpreting law;
were set aside in revision by High Court upholding judgment and decree of Trial
Court.

Side Appellant : Mst. ZUBAIDA
Side Opponent : Mst. JANAT BIBI
Specific Relief Act 1877 ----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984)'

Ss.117 to 119---Suit for declaration and permanent injunction---Gift---Burden
to prove--Claim of plaintiff was that house owned by her husband was orally
gifted in her favour followed by a memorandum of gift---After death of husband
of plaintiff house was transferred in favour of legal heirs of deceased vide
mutation---Suit filed by plaintiff was concurrently dismissed by Courts below
holding that plaintiff could not produce any evidence in support of oral gift
made in her favour by her husband--Plaintiff in proof of her claim had produced
marginal witnesses of memorandum of gift who fully proved its execution
---Both Courts below had not disbelieved said witnesses---By proving execution
of memorandum of gift, plaintiff had discharged her initial burden and it was
for defendants to establish that memorandum of gift was forged and anti-dated,
but they could not establish same by any evidence---Appellate Court after
holding that execution of memorandum of gift was duly proved, should not have
looked for independent evidence of oral gift--Judgments and decree of Courts
below were set aside and suit was decreed by High Court.
Citation Name : 2002 PSC 1194 FEDERAL-SERVICE-TRIBUNAL

Side Appellant : NAZAR KHAN
Side Opponent : UNITED BANK LIMITED
Page No. 47 of 61
Service Tribunals Act 1974 ---S.4--Appeal--Maintainability---Civil servant
aggrieved of his date of birth as recorded in his service record, filed declaratory
suit and before his retirement obtained decree from Civil Court with the
declaration of his date of birth as claimed by him--Said decree was upheld by
Appellate Court as well as the High Court to which Authorities continuously
remained reluctant to comply with---Decree passed in favour of civil servant
could be got enforced and executed according to procedure laid down in Civil
Procedure Code in that respect, but civil servant instead of getting decree
enforced and executed from competent Civil Court, through execution
proceedings. had invoked jurisdiction of Service Tribunal under S.4 of Service
Tribunals Act, 1973---Jurisdiction of Service Tribunal was limited within the
parameter laid down under the law and it could not exercise jurisdiction which
was not vested in it under the statute and could not assume the powers for the
execution of the decree or order passed by Civil Court--In case of
noncompliance by the Authorities regarding declared date of birth of Civil
Servant by Civil Court, he could press into service the provisions of law
provided under Civil Procedure Code in this behalf, but appeal before Service
Tribunal was not maintainable under law and facts
1| 2| 3| 4| 5| 6| 7| 8| 9| 10|

CLD

Side Appellant : ASHIQ HUSSAIN
Side Opponent : ANJUMAN ISLAMIA, KAMALIA REGD. through Muhammad
Amin
--S. 42---Limitation Act (IX of 1908), S.10---Civil Procedure Code (V of 1908),

S.115---Islamic Law---Waqf---declaration of title---Limitation---Plaintiffs sought
declaration of title regarding the suit land on the ground that it was waqf in the
name of Jamia Masjid---Suit was concurrently decreed by Trial Court and
Appellate Court---Plea raised by defendants was that the suit filed by plaintiffs
was time-barred---Validity---One of the accepted modes of waqf under Islamic
Law is through immemorial use as such---Even in absence of express
dedication suit land was being used from times immemorial for religious
Page No. 48 of 61
purpose i.e. a Mosque, such land would be deemed to be a waqf---In a suit for
declaration with or without consequential relief , that a property was Waqf
property, filed against a person vested therewith in trust as Matwalli or
otherwise or against his legal representatives, question of limitation did not
arise and such suit was not barred by any length of time---Such was the import
of S.10 of Limitation Act, 1908, therefore, in the facts and circumstances of the
case, the suit filed by plaintiffs was not barred by limitation---High Court
declined to interfere in the concurrent judgments passed by the two Courts
below---Revision was dismissed in circumstances.

Side Appellant : Ch. NAVEED HUSSAIN
Side Opponent : LAHORE DEVELOPMENT AUTHORITY through Director-
General
---Ss. 8 & 42---Civil Procedure Code (V of 1908), O.VI, R.17---Suit for

declaration . without claiming possession as consequential relief ---Application
for amendment in plaint---Scope--.-Plaintiff filed suit for declaration of his
proprietary interest in shop which was owned by his deceased father---
Defendants, who were plaintiff's deceased brother's legal heirs filed a separate
suit claiming therein that deceased father of plaintiff, who was grandfather of
defendants, was a Benami owner of disputed shop which actually belonged to
father of defendants---Trial Court decreed the suit---On appeal thereagainst
Appellate Court not only dismissed appeal but non-suited plaintiff on ground
that he had sought simple declaration without claiming possession as
consequential relief ---Plaintiff along with civil revision filed application to
amend prayer in his plaint to seek possession of his share in disputed shop and
contended that he was entitled to seek amendment in plaint/prayer at any
stage---Validity---Plaintiff was not to be' non-suited simply because he had not
prayed for possession of disputed property through partition---Controversy
between the parties essentially related to denial of plaintiff's interest by
defendants and prayer was only consequential to determination of aforesaid
controversy---Plaintiff's suit was allowed to be converted into a suit for
possession through partition and he was allowed to file his amended plaint
before Trial Court---Suit was remanded to Trial Court for proceeding in the
matter with object of deciding the same as a partition suit.

Side Appellant : Mian MUHAMMAD AMIN
Side Opponent : Mst. KHURSHEED BEGUM alias NASEEM BEGUM through
Legal Heirs
---S. 42---Suit for declaration ---Plaintiff lady had claimed to be the owner in
possession of the suit property and had challenged the sale-deed in favour of'
defendants, primarily on the ground of fraud between defendants, her husband
and manager of her husband---Plaintiff through her evidence, had failed to
prove her possession over the suit property; only oral, unsubstantiated and
uncorroborated statements had been made by the witnesses who were cousin,
tenant in the same mauza, but not the cultivator of the suit-land and her
attorney---Said witnesses had made very brief and sketchy depositions about
the plaintiff's possession over the suit-land---No details or the particulars about
the possession had been given, though the attorney of the plaintiff had stated
as witness that plaintiff's possession was through the tenants, but without
specifying their names and the terns of lease/tenancy---Said witnesses, when
subjected to the cross-examination by the defendants, had not been able to
sustain their assertions and plaintiff had deliberately omitted to produce any
Page No. 49 of 61
Revenue Record i.e. the Jamanbandies for the relevant period or the Khasra
Girdawari to establish either her physical or the possession through the
tenants---No proof of the payment of the land revenue was given by the plaintiff
and it was not established as to who were the tenants cultivating the land from
whom the defendants demanded the share of produce as alleged in the plaint---
Neither any tenant, who was cultivating the land under the plaintiff had been
examined nor any lease/tenancy agreement in that regard had been produced
by the plaintiff---Plaintiff had only led oral evidence, which was inadequate and
hardly proved her possession---Possession of defendants, on the other hand,
stood satisfactorily proved---Record convincingly established that the
possession of the property and assertion of plaintiff in that behalf, remained
unsubstantiated---Findings of' the Appellate Court, which were contrary to all
such aspects of the case, were the result of misreading and non-reading of the
evidence and could not be sustained and thus were set aside by the High
Court---Plaintiff having not sought the relief ' of possession, resultantly, her
suit was also bad on account of the proviso to S.42, Specific relief Act, 1877,
which was an essential consequential relief , but was not claimed by plaintiff.

Side Appellant : NASEER AHMAD
Side Opponent : Sheikh GULZAR AHMED
----S. 12(2)---Specific relief Act (I of 1877), Ss.8 & 42---Transfer of Property Act
(IV of 1882), S.41---Suit for declaration ---Compromise/consent decree based
on fraud and misrepresentation---Application under S.12(2), C.P.C.---
Maintainability---Plaintiff, the alleged vendee of suit property without
impleading the purchaser of property in question, filed a declaratory suit
against the seller wherein a consent decree was passed in favour of plaintiff---
On basis of said consent decree another declaratory suit was filed by plaintiff
against the said purchaser/defendant which was rightly dismissed because
said consent decree was of collusive nature as no explanation was available on
record for extra ordinary circumstances whereunder seller, who had himself
purchased disputed property for a sum of Rs.75000/- four years later to have
sold\ the same property for Rs.22000/- only, to plaintiff---Defendant's
application for setting aside said consent decree, therefore was maintainable
while his' failure' to mention in written statement of some earlier agreement
entered into between defendant and plaintiff was inconsequential ---Defendant
had been proved in possession of suit property for the last six years whereas
plaintiff had failed to explain as to why he had taken no action against
defendant to recover the possession or to assert his rights in disputed property
for a period of six years--Plaintiff, in circumstances, could not be treated as a
bona fide purchaser of property in question.

Side Appellant : ABDUR RAZZAQ
Side Opponent : ZAHOOR AHMAD
---Ss. 42---Suit for declaration to the effect that the plaintiff was owner of the
property---Trial Court dismissed the suit in the first round of litigation while the
Appellate Court accepting the appeal set aside the judgment and decree of the
Trial Court and remanded the case with direction to decide the case afresh
allowing the parties to seek amendment and adduce additional evidence---Both
the parties did not produce any additional evidence (oral or documentary)---
Trial Court dismissed the suit after remand mainly, on the ground that suit for
declaration without seeking relief of possession was not maintainable---
Judgment and decree of the Trial Court was upheld by the Appellate Court---
Page No. 50 of 61
Contention of the plaintiffs was that valuable rights of the plaintiffs, could not
be knocked out; on technical grounds and if the plaintiffs had not claimed the
relief of possession, it was open to the Court to allow the plaintiffs to amend the
plaint by adding prayer of possession---Validity---Held, plaintiffs were provided
ample opportunity to amend the plaint but the same was not availed--Plaintiffs,
even after the remand failed to avail the opportunity to amend the suit despite
clear direction of the Appellate Court--Plaintiffs having not sought amendment
in the pleadings even at subsequent stage, had thus abandoned the right of
possession---Suit for declaration without consequential relief of possession was
not maintainable---Plaintiff was certainly out of possession of the suit property
and mere declaration without seeking the possession was not competent.

Side Appellant : MUHAMMAD RAFIQ
Side Opponent : SARDAR
----S.42---Joint property---Suit for mere declaration without seeking

possession or partition of property as consequential relief --Maintainability---
Such suit by one of the joint owners would be maintainable on the allegation
that he was also owner in property, which right was being denied to him---Not
necessary for any such joint owner to claim partition of joint property also---
Partition could be claimed by any of the joint owners during currency of joint
ownership without limitation of any period in that behalf, so long as his right
was not denied.

Side Appellant : MUHAMMAD MUNAWAR BAJWA
Side Opponent : Mst. ZUBERA SHAHEEN
----S. 42---Civil Procedure Code (V of 1908), O.VI, R.17---Transfer of Property

Act (IV of 1882), S.44---Suit for declaration without claiming consequential
relief of possession---Maintainability---Sale out of joint land in favour of
defendant was challenged by plaintiff (co-sharer) also alleging to be in
possession thereof---Trial Court found defendant to be in possession of suit-
land and rejected plaint being barred by law for plaintiff's failure to ask for relief
of possession by making amendment in plaint---Appellate Court upheld such
findings---Validity---Sale in favour of defendant was not open to exception
either on fact or law and she could retain possession of suit-land till such time
as an actual partition by metes and bounds took place between co-owners---
Plaintiff could be allowed to amend plaint by adding prayer for possession on
payment of additional court-fee---Such amendment would not have changed
nature of suit---Such relief would have been in the nature of an additional relief
, which plaintiff should have asked for in the suit---Plaintiff had not asked for
such necessary relief by amending plaint before Courts below--Revision petition
clearly omitted, any such prayer---High Court dismissed the revision petition.

Side Appellant : MUHAMMAD ASLAM
Side Opponent : KARACHI DEVELOPMENT AUTHORITY
Page No. 51 of 61
----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.11 & O.VII, R.11---Sindh
Public Property (Removal of Encroachments) Act (V of 1975), Ss.3, 9, 11, 12 &
13---Suit for declaration , injunction and damages---Initiation of proceedings
under S.3 of Sindh Public Property (Removal of Encroachments) Act, 1975 for
eviction of plaintiff from disputed land---Plaintiff first filed Constitutional
petition, and after its dismissal filed petition before Supreme Court, but
withdrew the same--Plaintiff thereafter filed the present suit---Defendant sought
rejection of plaint on the ground that suit was hit by S.11, C.P.C. and thus was
barred by law---Plaintiff's plea was that since the suit was also for damages,
plaint was not liable to be rejected under O. VII, R.11, C.P.C.---Validity---relief
for damages in itself was not a new cause of action, but a consequential relief
---Unless and until plaintiff first established his right over the disputed land, he
could not claim damages---If plaintiff failed to establish his claim over disputed
land, his claim for damages would evaporate in the air---After dismissal of
Constitutional petition and petition for leave to appeal before the Supreme
Court, plaintiff could not claim any title or interest in the disputed land---Suit
was, thus, hit by principles of res judicata---without first availing remedy of
appeal before Tribunal as envisaged under S.12, Sindh Public Property
(Removal of Encroachments) Act, 1975, suit being premature was hit by
Ss.9,_11 & 13 of the said Act and barred by principle laid down in Tariq
Transport Company's case PLD 1958 SC (Pak.) 437---High Court rejected the
plaint under O. VII, R.11, C:P.C.

Side Appellant : HAQ NAWAZ
Side Opponent : MUKHTIAR AHMED
----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for
declaration and perpetual injunction---Grant of stay order, application for---
Plaintiff filed suit seeking declaration that he was owner of suit property and
that defendant had got no concern with the same--Plaintiff by way of
consequential relief had also sought perpetual injunction against the
defendant---Stay application was also moved by plaintiff which was accepted by
Trial Court, but was dismissed by Appellate Court---Plaintiff was inducted in
suit property as a tenant by defendant and defendant by filing ejectment
application against plaintiff had got ejectment order which order had attained
finality as it was not challenged by plaintiff before any higher forum----Plaintiff
being tenant under defendant could not challenge title of defendant (landlord)
without first surrendering possession to the defendant---Plaintiff could hardly
be deemed to possess a prima facie case for grant of interim injunction--Stay
application filed by plaintiff was rightly dismissed by Appellate Court---
Conclusion arrived at by Appellate Court being based on sound and plausible
reasons, interference of High Court was not warranted.

Side Opponent : GHULAM RASUL
Specific relief Act 1877 ----S.42---Suit for declaration with consequential relief
on the basis that plaintiff was owner in possession as co-sharer of the suit-land
without partition and other co-sharers were not entitled to interfere in his
possession over the suit-land and that the sale of shares by other co-sharers in
favour of the defendant was in excess of their shares--validity---Both the Courts
below had given issue-wise findings that the plaintiff was in possession of
specified land as co-sharer and owner---Plaintiff had failed to prove that other
co-sharers had sold land to the defendant in excess of their shares---Both the
Page No. 52 of 61
Courts below after discussing the evidence had come to the conclusion that the
plaintiff could be declared as co-sharer in respect of specified portion of land as
joint Khata had never been partitioned---No declaration , in circumstances,
could be made against the co-sharers and as tire Khata had never been
partitioned, every co-sharer shall be considered as owner in possession of the
suit property---Concurrent findings based on facts and evidence on record by
both the Courts were not interfered with by the High Court
1| 2|

CLD

Side Appellant : SAIFUDDIN SIDDIQUI
Side Opponent : MUHAMMAD SADIQ
Specific relief Act 1877 ----Ss. 54 & 42---Civil Procedure Code (V of 1908), O.
VI, R.17 & O.XIV, Rr. 1 & 5---Suit for injunction---Amendment of plaint to
include relief of declaration --- Plaintiff claiming to be co-sharer in disputed
shop filed suit for injunction to restrain defendant from dispossessing him
without due process of law---Defendant denied that plaintiff had any title, right
or interest in disputed shop--Trial Court dismissed suit as not maintainable on
the ground that as title of plaintiff was disputed, he should have filed suit for
declaration of his title and share in disputed shop---Appellate Court accepted
appeal filed by plaintiff and allowed him to amend the plaint---Defendant's
contention was that amendment had changed the complexion of suit from suit
for injunction to suit for declaration and injunction--Validity---Plaintiff had
prayed for injunction on the basis of his right of ownership in disputed shop,
which fact had been specifically denied by defendant in written statement---
Real controversy in suit was ownership of disputed shop---Injunction based on
such right could not be granted without deciding the point of ownership--Trial
Court ought to have framed issue in that respect as required by O. XIV, R.1, C.
P. C. --If ownership rights of plaintiff were taken out, then only prayer for
injunction as a consequential relief would fail---When Trial Court came to the
above conclusion during course of writing judgment, then under O. XIV, R. 5,
C. P. C. , the Court should have framed additional issue on such point before
pronouncing judgment and would have decided the same in accordance with
Page No. 53 of 61
law--No new cause of action had been introduced as real controversy between
parties was with regard to ownership of the shop---Relevant documents had
already been produced and parties had led evidence on such point to some
extent, thus, no new case had been introduced and no prejudice had been
caused to defendant in allowing amendment--Appellate Court was justified in
allowing amendment---No illegality or irregularity was found in impugned order
-warranting any interference---High Court dismissed revision petition in
circumstances.

Side Appellant : Mrs. SHAMIM AKHTAR
Side Opponent : SULTANA MAZHAR BAQAI
----S. 42---Limitation Act (IX of 1908), Arts. 120 & 142---Civil Procedure Code
(V of 1908), O.VII, R.11---Suit for declaration of ownership and possession---
Rejection of plaint being time-barred--Plaintiff claimed transfer of shop in his
favour as nominee of his deceased brother, while defendant being daughter of
deceased asked for its transfer to her as heir of deceased-- -Housing Society
gave award in favour of defendant, over which plaintiff filed such suit---Trial
Court on application filed by defendant under O.VII, R.11, C.P.C., rejected
plaint being time-barred---Appellate Court set aside such order--Validity--Main
claim of plaintiff was of ownership and claim for possession was merely
consequential relief ---Until right to possession was established, no question of
allowing relief of possession would arise---Limitation period for filing suit for
declaration of ownership of disputed shop would be governed by Art. 120 of
Limitation Act, 1908 providing six years from the date when right to sue
accrued---Right to sue had accrued to the plaintiff on 27-1-1969, when his
brother died or on 19-3-1969 when---Society refused to transfer shop in his
favour on basis of inheritance or further on 25-3-1969, when Society asked for
production of Letter of Administration and finally on 27-3-1969, when
possession of shop was transferred to defendant---Plaintiff had himself claimed
in plaint that cause of action had accrued to him on 25-3-1969---Suit filed by
plaintiff in year 1991, thus, was hopelessly-time-barred---Appellate Court
without examining contents of plaint or discussing its effect had decided matter
merely on basis of case-law without at all examining whether such case-law
was applicable to the facts of the case or not---High Court accepted revision
petition, set aside impugned judgment and restored that of trial Court.

Side Appellant : SHAHJEHAN KHAN
Side Opponent : MUHAMMAD TARIQ
Civil Procedure Code --Order XXXIX of C.P.C. Temporary Injunctions and

Interlocutory Orders ----O. XXXIX, Rr.1 & 2---Specific relief Act (I of 1877),
Ss.42 & 54--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.
Page No. 54 of 61
1| 2|

CLD
Citation Name : 1991 PLD 66 SUPREME-COURT-AZAD-KASHMIR

Side Appellant : MST. NASIM AKHTAR
Side Opponent : MUHAMMAD SABEEL
Court Fees Act 1870 ----S. 7(iv)(c) & (v)(d)---Specific relief Act (I of 1877), S.
42---Court Fees payable on suit for declaration and consequential relief of
possession---Where plaintiff could not ask for main relief viz. possession
without asking for a declaration , such suit would be one for declaration with
consequential relief for possession---Suit in such a case would be covered by
provision of S.7(iv)(c) and not by S.7(v)(d), Court Fees Act, 1870----Where,
however, it was proved that without seeking declaration , plaintiff was entitled
to seek relief of possession then suit would be covered by provision of S.7(v)(d),
Court Fees Act, 1870---Where from the nature of the suit, consequential relief
could be allowed only when plaintiff through declaration from competent Court
had succeeded in removing any other obstacle then in such like cases,
declaration would be the legal necessity for obtaining the real relief from the
Court.

Side Appellant : AMIR ALI
Side Opponent : ADDITIONAL DISTRICT JUDGE
Court Fees Act 1870 ---S.7(iv)(c)--Act to be construed strictly--Suit for

declaration and consequential relief --Suit filed by plaintiff for declaration that
registered sale-deed in favour of respondent was without consideration and
having been obtained through fraud was illegal, void and ineffective on his
Page No. 55 of 61
rights--Suit would fall under S.7(ii)(c), Court Fees Act--Plaintiff having an
absolute discretion to put his own valuation on relief claimed by him, Trial
Court had no authority to question valuation howsoever arbitrary might be--No
exception could be taken to valuation for purposes of court-fee fixed by
plaintiff--Court by requiring plaintiff to pay a certain court-fee, held flouted
mandatory provisions of S.7(iv)(c).
Citation Name : 1987 CLC 1366 SUPREME-COURT-AZAD-KASHMIR

Side Appellant : MUHAMMAD KHALIQ
Side Opponent : ABDULLAH KHAN
Specific relief Act 1877 --S. 42--Suit for declaration --consequential relief how
granted--Where consequential relief flows from the main relief , plaintiff, held,
could not be denied such relief even if he had omitted to ask for the same--
Where plaintiff was found to be bona fide allottee of plot, second allotment
thereof being without jurisdiction, plaintiff would be entitled to consequential
relief by restoration of possession of plot to him.

Side Appellant : MUHAMMAD LUQMAN
Side Opponent : OBEDUR REBMAN
-- S. 115, O. VI, r. 17 and Specific relief Act (I of 1877), S. 42Amendment of

plaint-Suit for declaration without relief for possession -Dismissed by trial court
amongst other on ground that plaintiff could not sue for declaration without
consequential relief for possession-Amendment of plaint if allowed, held, would
not alter nature of suit in circumstances.-[Plaint].
Citation Name : 1982 PLC 761 KARACHI-HIGH-COURT-SINDH

Side Appellant : MESSRS VOLKERVAM (PAKISTAN) LTD
Side Opponent : Syed MUSHTAQUE HUSSAIN
Specific relief Act 1877 -- S. 42-Declaratory suit-declaration sought that show-

cause notice-cum-charge-sheet and consequential enquiry were mala fide,
illegal and without authority-Such relief , held; cannot be granted under S. 42
of Act.
Citation Name : 1966 PLD 31 SUPREME-COURT-AZAD-KASHMIR

Side Appellant : AZAD J. & K. GOVERNMENT
Side Opponent : SAYED MOHAMMAD YOUNIS SHAH GILLANI
Court Fees Act 1870 S. 7 (xii) read with Sch. II, Art. 17 - Declaratory suit -
Plaintiff alleging that the order terminating his services, being against law and
Police rules, was void and inoperative and he continues to hold his post-Suit,
held, one for declaration only, without any prayer for consequential relief
-Plaintiff entitled to fix any value for purposes of jurisdiction.
Page No. 56 of 61
Citation Name : 1962 PLD 557 DHAKA-HIGH-COURT
Side Appellant : THE PROVINCE OF EAST PAKISTAN
Side Opponent : MIR GOLAM SARWAR
Specific relief Act 1877 S. 42-Deelaratory suit without prayer of consequential

relief -Maintainable-Grant of declaration -Discretionary.
Citation Name : 1959 PLD 101 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : MUHAMMAD ASLAM KHAN
Side Opponent : MUHAMMAD HASSAN AND OTHERS
Court Fees Act 1870 -----S. 7 (iv) (c) and Sch. II; Art. 17 (iii)- Declaratory suit-
Averments in plaint to be taken as a whole to determine whether suit is with, or
without consequential relief , though relief clause is couched in simple
declaratory form--Suit for declaration that decree was obtained by fraud
involving setting aside of decree-Suit, held to be one for declaration with
consequential relief -Suit falls within purview of S. 7 (iv) (c).
1| 2| 3|

CLD

Side Appellant : AMIN ALI
Side Opponent : MUHAMMAD SHAKEEL
Page No. 57 of 61
---Ss. 42 & 55---Pakistan (Administration of Evacuee Property) Act (XII of
1957), S.10(3) (b)---Punjab Development of Damaged Areas Act (XIV of 1952),
S.6---suit for declaration relating to entitlement of plot which included evacuee
property---Dismissal of suit and appeal---Contention of plaintiffs was that
Courts below proceeded on erroneous legal and factual premises while deciding
the case---Property in dispute had been acquired by Development Authority
with approval of Federal Government for purpose of implementing a Scheme
sanctioned by Provincial Government under section 6, Punjab Development of
Damaged Areas Act, 1952---Validity---Record showed that disputed property
was exempted in favour of plaintiffs vide registered agreements to sell---Transfer
of such property to defendants by Rehabilitation Authority under Pakistan
(Administration of Evacuee Property) Act, 1957 was illegal---Observation of
Appellate Court, that an agreement to sell alone did not create any right in
favour of plaintiffs unless a sale-deed was executed in their favour, was not
proper as father of plaintiff had paid entire amount due to the Development
Authority in 1964---execution of a sale-deed was a mere ministerial act and did
not, in any manner, deprive plaintiffs of their right in disputed property---Only
the Development Authority had right to raise such contention but it had not
taken any objection on that score---Development Authority having
acknowledged, that the title in disputed plot vested in plaintiffs there was no
need for plaintiffs to seek specific performance of agreement to sell against the
Development Authority nor the suit for declaration filed by plaintiffs was time-
bar red but Appellate Court wrongly found that plaintiffs were obliged to file a
suit for specific performance instead of declaration and that declaratory suit
filed by plaintiffs was time bar red---When testimony of the functionary of
Development Authority was that disputed plot was included in the Scheme,
Courts below wrongly found that there was no documentary evidence to prove
that the disputed plot was included in the Scheme.

Side Appellant : MAHMOOD ALI
Side Opponent : ABDUL LATIF
---Art. 91---Specific Relief Act (1 of 1877), S.42---declaratory suit ---suit was

dismissed but decreed in appeal---Limitation---Plaintiff himself had admitted
execution of the document in question 6 or 7 years prior to the filing of tine suit
---Article 91 of the Limitation Act, 1908 prescribed the limitation of period of
three years to cancel or set aside any disputed instrument-suit , in
circumstances, was clearly time-bar red.
Citation Name : 2006 PLD 558 KARACHI-HIGH-COURT-SINDH

Side Appellant : GAHI alias GADA HUSSAIN
Side Opponent : SHAMAN
--Art.199---Civil Procedure Code (V of 1908), S.47 & O.XXIII, R.3---West

Pakistan Land Revenue Act (XVII of 1967), S.42---Constitutional petition---
Compromise decree---execution ---Grievance of the petitioners/ decree holders
was that they had approached Mukhtiarkar, (Land Revenue) and District of
ficer (Revenue) for the mutation in the record of rights according to the
compromise decree in a suit , but they refused the mutation and therefore, it
may be declared that the act of Mukhtiarkar refusing to mutate the entry in the
record of rights in the name of petitioner/decree holders in accordance with the
compromise decree was illegal, mala fide and without lawful authority and that
both the of ficers be directed to mutate the record in the name of
petitioners/decree holders in accordance with the compromise decree---
Validity---Held, if the decree stopped short with declaring the rights and
Page No. 58 of 61
obligations of the parties relating to the property forming the basis of the claim
sought to be enforced, it was a decree declaratory in nature---Parties, in the
present case, in the compromise decree, had settled the terms and conditions of
compromise and after specifying the survey number and areas, which was to be
held by each party, it had been agreed that after passing of decree the record
shall be prepared accordingly and Mukhtiarkar of the District was a party to
the compromise decree---When there was a specific condition in the
compromise and the compromise decree had been passed in pursuance of the
terms and conditions agreed between the parties containing the condition that
the record shall be prepared accordingly, it was not a decree declaratory in
nature simpliciter and therefore, if Mukhtiarkar being a party to the
compromise decree had refused to act according to the compromise, the decree
holders ought to have approached Civil Court for the execution of the decree---If
there was no dispute about the title of the land, in that case the Revenue
Authorities had no jurisdiction to refuse the mutation in accordance with a
decree of Civil Court on the ground that the suit was bar red by time or decree
had become bar red by time or the decree passed by the Civil Court was not in
accordance with the law---If, however, the decree was not capable of execution :
for the reason that it was between the parties who had no right in law to enter
into compromise in respect of the properties, for the reason that they were not
owners of the properties, the Revenue Authorities were justified in not mutating
the record depriving the persons, who were not party to the decree, of their
valuable rights and were shown as owners in the record of rights---Such
'questions could be decided by the Civil Court and particularly the point that
the persons, in whose names the lands were mutated in the record of rights,
were bound by the compromise decree being successors-ininterest of the parties
to the compromise---All such questions could not be decided in the
constitutional petition by the High Court and therefore, the petitioners may
pursue a remedy through Civil Court seeking clarifications on all such points as
well as execution of decree---Constitutional petition was disposed of in the said
terms by- the High Court.

Side Appellant : Syed ISHAQUE HUSSAIN RIZVI
Side Opponent : Sheikh MUBARIK ALI
----Ss. 12 & 8---Civil Procedure Code (V of 1908), S.41---suit for specific

performance of agreement to sell land---Allottees, prior to the acquisition of
proprietary rights, entered into an agreement of sale of land with respondents
and subsequently they also entered into a sale agreement with appellants
through their attorney---Respondents, on coming to know about the
subsequent agreement, filed suit and later the parties in, the suit entered into
compromise on the basis of which, decree was passed in the suit ---Agreement
between the parties in respect of the property, subject-matter of decree would
become subservient to said compromise and would lose its independent status
whereas the agreement entered between the parties subsequent to the passing
of the decree, would be entirely independent and on the basis of such
agreement, suit for specific performance and possession of land would be
competent---Right claimed by the respondents under the agreement having not
been created in their favour under the decree would not be determinable in
terms of S.47, C.P.C. and consequently, the suit would not be defeated on the
basis of technical objection---Decree being declaratory in character, would not
be as such capable of execution ---Provisions of S.47, C.P.C. even otherwise
would not debar the suit ---Sale in favour of appellants having taken place
during pendency of suit , would be hit by principle of its pendens and the
appellants would not. be considered bona fide purchasers---Legal character of
the agreement between the respondents under which they had acquired title in
the suit land to the extent of 2/3rd share under the decree and 1/3rd share on
the basis of agreement to sell, was an independent transaction and view of the
High Court that said agreement was void was contrary to law---Concurrent
Page No. 59 of 61
findings of the two Courts subordinate, to the High Court on this specific issue,
was not liable to be disturbed by the High Court--Principles.

Side Appellant : NOOR MUHAMMAD
Side Opponent : ADDITIONAL DISTRICT JUDGE, FEROZEWALA
---Ss. 39 & 42---Civil Procedure Code (V of 1908), O.XIV, Rr. 2 & 4---
Constitution of Pakistan (1973), Art.199---Constitutional petition---Preliminary
issues, deciding of --declaratory suit ---Failure to seek cancellation of sale-
deed---Petitioners denied execution of disputed sale-deeds and alleged the same
as a result of fraud and forgery---suit was filed by the petitioners when their
tenants informed that the respondents were taking steps to dispossess the
tenants---Petitioners denied execution of sale-deeds in favour of the
respondents in the plaint---Contention of the respondents was that the suit was
time-bar red and was not maintainable as cancellation of document was not
sought---Preliminary issues were framed on the basis of plea of limitation---
Trial Court found the issues in favour of the petitioners whereas Appellate
Court in exercise of revisional jurisdiction reversed the finding on the issues
and dismissed the suit ---Validity---Petitioners need not to get the sale-deeds
cancelled because if it was proved that the sale deeds were not executed then
the same would be void and declared as such---Even if the conclusion of the
Appellate Court that the petitioners were aware of the sales was deemed to be
correct, even then the suit could not be said to be bar red by time--Preliminary
issues could not have been decided in the present case without recording
evidence on the merits of the case set up by the parties as to existence and
validity of the sale-deeds impugned in the suit ---Appellate Court while
proceeding to decide revision petition had almost decided the question of fact
involving merits of the case---Where the evidence as to the execution or non-
execution of the documents, their validity and existence overlapped the
evidence required to decide the preliminary issues, High Court set aside the
findings recorded by the Appellate Court---Judgment and decree passed by the
Lower Appellate . Court was set aside and the suit was remanded to Trial Court
for decision on merits---Constitutional petition was allowed accordingly.

Side Appellant : ALLAH BAKHSH
Side Opponent : FATEH BIBI
Limitation Act 1908 Art. 120---Spec Relief Act (I of 1877), S.42---Civil

Procedure Code (V of 1908), S.115---declaratory suit ---Limitation---Revisional
jurisdiction---Exercise of ---Petitioner/defendant was sued against by
respondent/plaintiff for declaration of invalidity of a registered gift deed
allegedly executed by plaintiff in favour of defendant, her step-brother in
respect of land inherited from their father---Trial Court despite concluding that
execution of alleged gift deed had not been proved and that possession under
alleged gift deed was not transferred to defendant/alleged donee and that suit
filed by plaintiff challenging such gift deed was competent, dismissed suit
holding that period prescribed for challenging gift deed was six years under Art.
120 of Limitation Act, 1908 whereas suit was filed after 25 years after alleged
execution of gift deed---On filing appeal against judgment of Trial Court,
Appellate Court below reversed judgment of Court below holding that suit was
within time and could not be dismissed merely on ground of limitation---Right
to sue could arise only upon awareness about hostility affecting right of plaintiff
and defendant was bound to have positively proved that plaintiff had gained
knowledge of existence of a lawful document/alleged gift deed adverse to her,
Page No. 60 of 61
but defendant had failed to prove same---Defendant could not be taken to have
discharged burden of proof with regard to limitation---suit was not liable to be
held time-bar red on mere consideration that gift deed was 25 years old--
Concurrent findings of fact justified on record, could not be interfered with by
High Court in exercise of its revisional jurisdiction.
Page No. 61 of 61
2009 C L C 822
[Northern Areas Chief Court]
Before Sahib Khan and Muzaffar Ali, JJ
CIVIL AVIATION AUTHORITY, JINNAH INTERNATIONAL AIRPORT KARACHI

through Director-General C.A.A. and 2 others----Appellants
Versus
TALIB HUSSAIN through Legal Heirs through Attorney----Respondents
C.F.As. Nos.10 and 11 of 2006, decided on 19th November, 2008.
Specific Relief Act (I of 1877)---
----S. 42---Civil Procedure Code (V of 1908), Ss.47(2) & 96---Suit for

declaration---Execution of decree---Plaintiff, who served the authorities, when
reached at the age of his pension, they refused to pay pension benefits to him
considering his job not to be a permanent one and pensionable---Plaintiff being
dissatisfied with the plea of the authorities in refusing his right of pensionary
benefits, filed suit before civil court, which was decreed---Decree being of
declaratory nature, plaintiff feeling same to be non-executable in the eyes of
law, approached to the Executing Court taking resort to the S.47(2), C.P.C. with
contention to treat the execution application to be suit---Executing Court
treated the application as suit and passed the impugned decree in favour of the
plaintiff against the authorities after adopting the procedure provided for and
passed the impugned decree which was impugned in first appeal---Validity---
Appeal filed by the authorities was based on various grounds of attack, but
abandoning all the grounds, they objected on the point of interest imposed on
them by the court, with the contention that authorities were ready to pay the
pension amount to the plaintiff, but imposition of interest upon the same was
illegal and without jurisdiction as District Judge had taken cognizance of the
matter as Appellate Court in execution proceedings, he could not travel beyond
the decree passed, but had exercised jurisdiction not vested with him---
Validity---Interest had not been imposed by Executing Court or Appellate Court
in execution proceedings, but had been fixed in general jurisdiction---After a
long time of litigation, authorities had shown their willingness to pay the
pension amount alone, while with the passage of time, the value of currency of
the country had been devalued to the extreme point of its decreasing---Version
of the authorities being against equity and natural justice, was discarded---
Impugned decree passed by the Trial Court/Executing Court was maintained.
Muhammad Issa for Appellants.
Page No. 1 of 64
Manzoor Ahmed for Respondent.
ORDER
MUZAFFAR ALI, J.--- We propose to dispose of these 1st Appeals Nos.C.F.A. 10

of 2006 and C.F.A. 11 of 2006 through this single judgment as both the appeals
have arisen out of single judgment, dated 8-7-2006, passed by the learned Civil
Judge, Gilgit and having same issues of law and facts.
The brief facts unfolded from the record are as such that, the respondents
served the appellants as employee of the same but they entered into a diversity
when the respondents reached to the age of their pension from services as the
appellants refused to pay pension benefits to the respondents considering their
job not to be a permanent one and pensionable. The respondents filed Suit
No.138 of 2001 before the Civil Court, Gilgit being dissatisfied from the plea
taken by the appellant to refuse their right of pension benefits and a long
standing litigation ensued which consumed more than one decade of time and
parties went through the agony of monetory loss and time in travelling from
Civil Court to Chief Court and back to the Civ4l Court from Chief Court.
Lastly the respondents succeeded to get the decree dated (sic) against the
appellants but since the decree was of declaratory nature as such, the
respondents felt the same to be non-executable in the eyes of law, hence they
approached to the executing Court having resort to the section 47, subsection
(2) of C.P.C. with the contention to treat the execution application to be suit.
The learned executing Court treated the application as suit and passed the
impugned decree in favour of the respondents against the appellants after
adopting the procedure provided for, and passed the impugned decree which is
impugned before this Court.
We heard the learned counsel for the parties.
The appeals are based on various grounds of attacks but the learned counsel
frankly abandoned the all, but objected on the point of interest imposed on the
appellant by the District Judge, Gilgit with the contention that the appellants
are ready to pay the pension amount to the respondents but imposition of
interest upon the same is illegal and without jurisdiction as the learned District
Judge had taken cognizance of the matter as Appellate Court in execution
proceedings, hence he could not travel beyond the decree passed but he has
exercised a jurisdiction not vested with him. We looked into the point and asked
the learned counsel for the respondents to meet the same. who vehemently
rebutted the point and stated that the interest has not been imposed by any
executing Court or Appellate Court in execution proceedings but has been fixed
in general jurisdiction and he confronted the learned counsel for appellants
from the record of the case and the learned counsel for the appellants after
going through the record very honourably conceded the version of the counsel
for the respondents to be correct, otherwise too, the contention of the
appellants seems not to be judicious that after a long time of litigation, they
show their willingness to pay the pension amount alone while with the passage
of time the value of currency of the country has been devalued to the extreme
point of its, decreasing, hence the version is against equity and natural justice
as such discarded.
Page No. 2 of 64
The upshot of the above discussion is that the impugned decree passed by the
learned Trial/Executing Court is maintained without any variation in it by
dismissing both the appeals in hand. Cost to follow the event. File.
H.B.T./5/Glt. Appeals dismissed.
Page No. 3 of 64
2009 C L C 1136
[Lahore]
Before Maulvi Anwarul Haq, J
ABDULLAH and 8 others----Petitioners
Versus
Mst. SAIDAN BIBI and 12 others----Respondents
Writ Petition No.2542 of 2003, heard on 30th March, 2009.
Civil Procedure Code (V of 1908)---
----S. 144---Constitution of Pakistan (1973), Art.199---Constitutional petition---

Application for restitution---Scope---Petitioners, in the present case, had
initiated litigation as plaintiffs claiming a decree for declaration and permanent
injunction---Provision of S.144, C.P.C. is based on fundamental principles of
law that an act of court should not injure any person---Restitution is ordered
against the holder of the decree who, in execution thereof, has deprived the
opposite party of some benefits and upon variance or reversal of decree the
court calls upon him to restitute the said benefits---In the present case, matter
related to the correction of share in joint holding of the parties and under the
law if a co-sharer is dispossessed by another co-sharer then only remedy is
either to file suit under S.9, Specific Relief Act, 1877 or to file a suit for
partition---Possession of property in question was not taken by the party in
disobedience of any injuctive order in force---Provisions relating to execution of
injuction decree were also not attracted---Constitutional petition was allowed---
Impugned orders being without lawful authority and void were declared as such
and were set aside---Warrant had been issued and report had been received---If
the possession of the petitioners had been disturbed or changed on the basis of
declaratory decree, Trial Court/Executing Court shall take steps to restitute the
same in favour of the petitioners in accordance with law.
Fazal Karim v. Rawal Malik and another 1998 SCMR 1200; Abdul Bari v.
Muhammad Rasheed Khan and 7 others 1995 SCMR 851; Ziaullah v.
Muhammad Hussain Afzal 2003 CLC 1321; Barkat Ali v. Additional District
Judge; Faisalabad 2001 MLD 1044 and Mst. Sultan Bibi and 25 others v. Gul
Baran and others PLD 1999 Quetta 56 distinguished.
Syed Shamim Abbas Bokhari for Petitioner.
Page No. 1 of 3
Syed Maqbool Hussain for Respondents.
Date of hearing: 30th March, 2009.
JUDGMENT
MAULVI ANWARUL HAQ, J.--- On 26-3-1976 the respondents filed a suit

against the petitioner for declaration that they are only legal heirs of Mst. Bai
and that Mutation No.11 attested on 3-12-1961 has wrongly been sanctioned.
They also claimed permanent injunction restraining the petitioners from
interfering with the possession and enjoyment of the suit-land qua the share of
Mst. Bai inherited by them being part of joint holding. The suit was contested. It
was dismissed by the learned trial Court on 20-1-1985. First appeal filed by the
respondents was dismissed by a learned Additional District Judge IV, Okara, on
29-5-1986. Civil Revision No.1934-D/1986 was allowed by this Court on 4-12-
2000 and suit of the respondents was decreed as prayed for. C. P. L. A. filed by
the petitioners was dismissed by the Honourable Supreme Court of Pakistan on
22-11-2000.
2. On 15-1,1-2000 an execution petition was filed praying that the decree be

incorporated in the Revenue Records and further the, possession of the suit-
land be got delivered. On 23-1-2001 the petitioners filed an objection petition;
along with same an application for temporary injunction was filed for recalling
the warrants of possession. This application was dismissed on 30-5-2001.
Against this order the petitioners filed an appeal. It was allowed by a learned
Additional District Judge, Okara, on 17-9-2001, who observed that it was
declaratory decree and warrant of possession cannot be issued. However, an
order can be passed for correction of revenue record in accordance with said
decree. Learned executing Court was accordingly directed to decide the
execution petition in accordance with law. Thereafter somewhere in March,
2002 the respondents filed an application under section 144, C.P.C. They
narrated the history of litigation as stated above. It was added that after the
decision of the trial Court the petitioners changed the possession of the
predecessor-in-interest of the respondents. With this averment they made a
prayer that Mutation No.11 challenged in the suit be got cancelled and fresh
mutation in accordance with the decree begot attested and that the possession
that was changed under the decree of the trial Court be restored to the
respondents. This application was allowed by the learned executing Court on 4-
4-2002 while revision has been dismissed by a learned Additional District
Judge, Okara, on 20-2-2003.
3. Learned counsel for the petitioners contends that the impugned orders are
without lawful authority inasmuch as a case for restitution either under section
144, C.P.C. or the general principles underlying the same is not made out at all,
as admittedly no decree was passed in favour of the petitioners in execution
whereof the possession was obtained, which could be restituted by the learned
executing Court. Learned counsel for the respondents, on the other hand,
supports the impugned order with the contention that since it was dismissal of
the suit by the learned trial Court which prompted the petitioners to take over
the possession, the restitution has been lawfully ordered. He relies on the cases
of Fazal Karim v. Rawal Malik and another 1998 SCMR 1200, Abdul Bari v.
Muhammad Rasheed Khan and 7 others 1995 SCMR 851, Ziaullah v.
Muhammad Hussain Afzal 2003 CLC 1321, Barkat Ali v. Additional District
Page No. 2 of 3
Judge, Faisalabad 2001 MLD 1044 and Mst. Sultan Bibi and 25 others v. Gul
Baran and others PLD 1999 Quetta 56.
4. I have gone through the copies of the relevant records produced by both
parties. The nature of the suit and history of the litigation has already been
stated. There is no manner of doubt in my mind that the le petitioners had
initiated litigation as plaintiffs claiming a decree for declaration and permanent
injunction. The suit was dismissed and so was the case with appeal. Civil
revision, however, was allowed by this Court and the said decree was granted.
The C.P.L.A. before the Apex Court failed. Needless to state that section 144,
C.P.C. is based on fundamental principles of law that an act of Court should
not injure any person. The restitution is ordered against the holder of a decree
who in execution thereof has deprived the opposite party of some benefits and
upon variance or reversal of decree the Court calls upon him to restitute the
said benefit. As noted by me above, it was a case for correction of share in joint
holding of the parties. Under the law if a co-sharer is dispossessed by another
co-sharer then only remedy is either to file a suit under section 9 of the Specific
Relief Act, 1877 or to file a suit for partition. It is not even case of the
respondents that the petitioners took over the possession in disobedience of any
injunctive order in force. Thus, provisions relating to execution of injunction
decree are also not attracted. So far as the contention of the learned counsel for
the respondents are concerned, in the said case of Fazal Karim a decree for
possession by pre-emption was passed and possession obtained in execution
and upon setting aside of the decree the restitution of possession was upheld by
the Honourable Supreme Court. In the said case of Abdul Bari in execution of a
decree for possession the opposite party was dispossessed and upon setting
aside of the said decree the possession was restituted and this was upheld by
the Honourable Supreme Court. In the aforenoted case of Ziaullah a tenant was
dispossessed in execution of an ex parte ejectment order and the learned Rent
Controller was directed to restore the possession of the tenant after setting
aside of the ex parte ejectment order. In the above-mentioned case of Barkat Ali
a suit for specific performance was decreed and sale-deed was registered in
execution upon setting aside of the decree the sale-deed was cancelled. The
order of revisional Court was set aside by this Court on the ground that since
the sale-deed was executed in execution of the decree which had been set aside
the same is liable to be cancelled. In the said case of Mst. Sultan Bibi and 25
others an ex parte award was given and the suit, inter alia, for possession was
decreed and the possession was delivered in execution. Ultimately the
Honourable Supreme Court allowed the appeal of the opposite party and said
decree was set aside. Thereafter an application for restitution was filed and it
was ordered. The appeal was accepted by the learned District Judge. The
learned High Court of Balochistan allowed the civil revision holding that since
the decree has been set aside and possession was taken in execution of the
decree the concerned party is entitled to restitution. The facts of this case are
entirely different from the said cases. No decree capable of execution was
passed neither it was executed by the petitioners and there is no question of
any restitution. Writ petition is accordingly allowed. The impugned orders being
without lawful authority and void are declared as such and are set aside. I am
informed by the learned counsel for the respondents that warrant was issued
and report had been received. If the possession of the petitioners has been
disturbed or changed on the basis of said declaratory decree, the learned trial
Court/executing Court shall take steps to restitute the same in favour of the
petitioners in accordance with law. No order as to cost.
A copy of this judgment be immediately remitted to the learned executing Court.
M.B.A./A-118/L Petition allowed.
Page No. 3 of 3
P L D 2006 Lahore 451
Before Muhammad Muzammal Khan, J
MUHAMMAD IQBAL---Petitioner
Versus
MUHAMMAD SHOAIB and others---Respondents
Writ Petition No.14822 of 2004 and Writ Petition No.11374 of 2005, decided on
22nd March, 2006.
(a) Civil Procedure Code (V of 1908)---
---S. 12(2) & O.VII, R.11---Application under S.12(2), C.P.C.---Applicant had

made out elements of fraud/representation under S.12(2), C.P.C.---Application
under S.12(2), C.P.C. disclosing a cause of action could not be rejected under
O.VII, R.11, C.P.C.
(b) Civil Procedure Code (V of 1908)---
---S. 12(2)---Dispute as to ownership of land---Application under S.12(2), C.P.C.

with an application for review/recall of order passed by the Court---Order
sought to be reviewed was only interlocutory in nature---Such order would
automatically stand vacated on decision of the main application under S.12(2),
C.P.C.---Judgment/decree which was declaratory in nature could not be put to
execution, thus 'its suspension would not affect the decree-holder especially
when he had claimed to be in possession of the suit-land.
(c) Civil Procedure Code (V of 1908)---
----O. XL, R.I & S.12(2)---Qanun-e-Shahadat (10 of 1984), Art.117---

Constitution of Pakistan (1973), Art.199---Constitutional petition---Allegation of
forgery/fraud---Application for appointment of Receiver---Requirements---
Applications, one under Art.117, Qanun-e-Shahadat, 1984 and the other under
O.XL, R.1, C.P.C. by the petitioners---Petitioners had to establish their case by
producing evidence for appointment of Receiver and by fulfilling the pre-
requisites of O.XL, R.1, C.P.C. likewise application praying to require the
petitioner to prove his asserted forgery/fraud in associating/making his sister
as one of the applicants by inscribing her fake signatures, vanished in view of
direction already given by the Trial Court for her appearance in person and to
clarify her impleadment or to refute the same---Course adopted by the Trial
Page No. 1 of 5
Court was just/fair and required no interference by the High Court under its
constitutional jurisdiction.
(d) Constitution of Pakistan (1973)---
----Art. 199---Constitutional jurisdiction---Scope---Lower Courts had not

committed any illegality amenable to constitutional jurisdiction of the High
Court and had decided all the applications by the parties strictly in accordance
with the law applicable and the record---Lawful decision could not be
substituted under the constitutional jurisdiction---Petition being devoid of any
merit was dismissed---Contest in the case being between the real
brothers/sister and being pending since the year 2000, High Court directed
that in the interest of justice, case be concluded expeditiously within a period of
4 months even by undertaking day to day proceedings.
Nemo for Petitioner in W.P.No.11374 of 2005.
Ch. Bashri Ahmad for Petitioner in W.P.No.14822 of 2005 and for the
Respondent in W.P.No.11374 of 2005.
ORDER
MUHAMMAD MUZAMMAL KHAN, J.---This judgment proposes to decide two

constitutional petitions, one in hand and the other W.P. 11374 of 2005, as both
these petitions are directed against the same orders/judgments, raise similar
question of law/facts and are inter the same parties. Petitioners in both these
petitions, challenged the judgments/orders dated 27-5-2003 and 9-8-2004
passed by the learned Senior Civil Judge, and the learned Additional District
Judge Bhakkar, to be declared illegal, void and of no legal consequence whereby
six different applications filed by the parties, and their revision petitions were
dismissed respectively.
2. Succinctly, relevant facts are that land measuring 1240 Kanals 9 Marlas
situated in Chak No.6, Rakh Mankera, District Bhakkar was allotted to one
Muhammad Ayub son of Samand Khan under Tube Well Scheme in the year
1963-64 who appointed one Ch. Ghulam Rasul son of Muhammad Ibrahim as
his general attorney. Ch. Ghualm Rasul the appointed general attorney of the
allottee, was the real father of Muhammad Iqbal writ petitioner of the petition in
hand i.e. W.P. No.14822 of 2004 and that of Muhammad Shoaib Writ Petitioner
of the connected petition i.e. (W.P. No.11374 of 2005) whereas allottee of Tube
Well Grant has also died and is represented through respondents No.7 to 13.
Muhammad Iqbal writ petitioner filed a suit for declaration against the sons of
Muhammad Ayub Khan allottee, and alleged that special attorney, appointed by
Ch. Ghulam Rasul. Namely Sabir Hussain respondent No.7 had agreed to
transfer the suit property vide agreement dated 1-2-1986, for a consideration of
Rs.4,72,714 out of which he received an amount of Rs.3,50,000 as earnest
money. It was further pleaded that under the agreement dated 1-2-1986 it was
settled that remaining instalments and all other dues which were payable to the
Government, thenceforth shall be paid by Muhammad Iqbal writ
petitioner/plaintiff on behalf of the lessee Muhammad Ayub Khan, Muhammad
Iqbal petitioner further averred that physical possession of the suit land was
delivered to him in pursuance of the aforesaid sale agreement with approval of
Page No. 2 of 5
the Board of Revenue vide memo. No.165-76/977 TR-III dated 27-3-1976.
According to him, on conformant of proprietary rights to the allottee, land
subject of agreement was to be transferred in the name of Muhammad Iqbal
petitioner. As per assertions, in the plaint filed by Muhammad Iqbal, the
petitioner, he had paid to Thal Development Authority an amount of
Rs.1,22,714 on account of outstanding instalments due' against the allottee
and this amount was deposited against Bank challans. Muhammad Iqbal
petitioner narrated in the plaint that he spent a huge amount on improvement
of land by plantation of large number of trees, sinking of a tube well raising of
construction and making the land cultivable. Muhammad Ayub Khan, the
allottee died before the conformant of proprietary rights whereafter his
successor refused to honour the agreement to sell allegedly executed by special
attorney appointed by Ch. Ghulam Rasul. On refusal of the heirs/legal
representatives of the allottee Muhammad Ayub Khan to perform their part of
contract on behalf of their father, Muhammad lgbal was forced to file this suit.
3. Respondents Nos. 7 to 13 being defendants in the suit filed by Muhammad

Iqbal, contested the same by filing their written statements whereas Sabir
Hussain the alleged attorney filed his consenting written statement. In view of
controversial pleading of the parties to the suit they were put to trial by framing
of issues. Pending suit, heirs/legal representatives of original allottee
Muhammad Ayub Khan received an amount of Rs.2,50,000 from Muhammad
Iqbal petitioner and deserted contest of the suit which was ultimately decreed
by the then the learned Senior Civil Judge, Bhakkar vide judgment/decree
dated 30-7-1998.
4. Muhammad Shoaib and Mst. Ghazala Yasmeen along with Riaz Ayub their
brother on 24-4-2000 filed an application under section 12(2), C.P.C. before the
learned Senior Civil Judge, Bhakkar which is reported to be pending. Their case
was that their father Ch. Ghulam Rasul had purchased tenancy rights of land
measuring 1240 Kanals, 9 Marlas from the allottee of the tubewell grant i.e.
Muhammad Ayub Khan who after receipt of the entire price executed a general
power of attorney in the name of Ch. Ghulam Rasul which was registered on
21-11-1978. According to them, their father suffered from brain haemorrhage
and was accordingly admitted in Ganga Ram Hospital Lahore on 5-10-1981 and
thus was on death bed till 21-9-1989 was not in a position/capacity to
visualize/understand his good or bad but their brother Muhammad Iqbal
connived with the other respondents in the application under section 12(2),
C.P.C. and manoeuvred a fictitious special power of attorney on 21-1-1986
allegedly executed by their fattier Ch. Ghulam Rasul in favour of Sabir Husain.
These writ petitioners further averred in their application that their fattier used
to sign in English whereas, the alleged special power of attorney in favour of
Sabir Hussian was said to have been thumb marked by him. They further
challenged the agreement to sell dated 1-2-1986 as fake/collusive which was
executed by the special attorney in favour of Muhammad Iqbal petitioner and in
this manner they prayed the judgment/decree dated 30-7-1998 may be
adjudged being tainted with fraud and misrepresentation qua the Court.
5. Parties to the application under section 12(2), C.P.C. filed different six
applications before the learned Senior Civil Judge, cognizant of the same, for
review/recall of the injunctive order dated 10-4-2004 application for deletion of
name of Gohar Ayub Khan respondent No.3 therein; application by Riaz Ayub
for withdrawal of application under section 12(2), C.P.C. to his extent and
application for appointment of receiver of the suit land. The learned Senior Civil
Judge, after getting replies to all these applications and hearing the parties
dismissed all of those vide his consolidated order dated 27-5-2003.
Page No. 3 of 5
6. Parties to the lis were not satisfied with the decision of the trial Court dated
27-5-2003 and they accordingly filed three revision petitions, out of which two
were filed by Muhammad Iqbal and others whereas the third one was filed by
Muhammad Shoaib and others before the learned Additional District Judge
Bhakkar but they remained unsuccessful as all the three revision petitions were
dismissed through consolidated revisional judgment dated 9-8-2004.
Muhammad Iqbal thereafter filed writ petition No.14822 of 2004 whereas
Muhammad Shoaib along with Mst. Ghazala Yasmeen filed Writ Petition
No.11374 of 2005 and respondents in each petition, in response to notice by
this Court have appeared and were represented through their counsel.
7. I have heard the learned counsel for the parties and have examined the
record, appended herewith. Muhammad Iqbal petitioner had moved an
application under Order VII, Rule 11, C.P.C. averring that his brother
Muhammad Shoaib and his sister Mst. Ghazala Yasmeen had no cause of
action/locus standi to file the application under section 12(2),C.P.C. but on this
score by invoking the provisions under examination, application could not be
rejected, as prima facie the applicants thereof being successors of Ch. Ghulam
Rasul had claimed A purchase of tenancy rights by their father and pleaded
that the alleged special attorney namely Sabir Hussain respondent No.14 was
never appointed as special attorney and was not conferred any authority to
enter into an agreement as his principal Ch. Ghulam Rasul being on death bed
was incapacitated to execute any such document. Tentatively, Muhammad
Shoaib etc. the writ petitioners had made out elements of
fraud/misrepresentation qua the Court and their application under section
12(2), C.P.C. did disclose a cause of action, hence the same could not have been
rejected under Order VII, Rule 11, C.P.C.
8. As regards the application for review/recall of the order dated 10-4-2003 filed
by Muhammad Iqbal petitioner, the order sought to be reviewed was only
interlocutory in nature, suspending the judgment/decree dated 30-7-1998 and
would automatically stand vacated on decision of the main petition under
section 12(2), C.P.C. Even otherwise judgment/decree dated 30-7-1998 is
declaratory in nature and cannot be put to execution, thus its suspension
would not effect the decree-holder especially when he claims to be in possession
of the suit land. Concurrent findings returned by the respondents Nos.5 and 6
accept no exception and are accordingly maintained.
9. Coming to other two applications filed by Muhammad Shoaib etc. petitioners,

one under Article 117 Qanun-e-Shahadat, 1984 and the other for appointment
of receiver of the land subject of litigation, Muhammad Iqbal petitioner is in
possession of the land under a C judgment/decree dated 30-7-1998 which has
not been cancelled/set aside or adjudged, so far and at the present, his
possession cannot be disturbed. Muhammad Shoaib etc. in case of their
success in their application under section 12(2), C.P.C. will have a right to
demand rendition of Accounts or recovery of mesne profits by initiating
appropriate proceedings but unless they establish their case by producing
evidence, their prayer of appointment of receiver could not have been accepted
especially when the pre-requisites of Order XL, Rule 1, C.P.C. were not fulfilled.
Likewise their prayer to require Muhammad Iqbal petitioner to prove his
asserted forgery/fraud in associating/making Mst. Ghazala Yasmeen as one of
the applicants by inscribing her fake signatures, vanished in view of direction
already C given by the trial Court to. her to appear in person and to certify her
impleadment or to refute the same. Mst. Ghazala Yasmeen is co-petitioner with
Muhammad Shoaib in W.P. No.11374 of 2005 and in view of it, I am of the
considered view that course adopted by the trial Court is just/fair and requires
no interference by this Court. It goes without saying that Muhammad Iqbal
himself being a respondent to application under section 12(2), C.P.C. cannot
seek deletion of name of Mst. Ghazala Yasmeen especially when the trial Court
is equipped with the powers of deletion names of unnecessary parties as per
Page No. 4 of 5
provisions of Order I, Rule 10, C.P.C. and this exercise will be undertaken on
compliance of order dated 10-4-2003 by the trial Court.
10. For the reasons noted above, none of the respondents Nos.5 and 6
committed any illegality amenable to constitutional jurisdiction of this Court, as
they decided all the applications by the parties strictly in accordance with the
law applicable and the record. Even otherwise a lawful decision rendered within
the ambit of conferred jurisdiction cannot be substituted on this petition which
being devoid of any merit is dismissed with no order as to costs but in view of
contest inter the real brothers/sister, and its pendency since the year 2000 it
will be in the interest of justice to conclude the same expeditiously hence the
trial Court is directed to decide the matter pending before it, within a period of
4 months even by undertaking day to day proceedings. There will be no order as
to costs.
M.B.A./M-182/L Petition dismissed.
Page No. 5 of 5
P L D 2006 Karachi 558
Before Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ
GAHI alias GADA HUSSAIN and others---Petitioners
Versus
SHAMAN and 7 others---Respondents
Constitutional Petition No.140 of 2006, decided on 24th May, 2006.
Constitution of Pakistan (1973)---
----Art.199---Civil Procedure Code (V of 1908), S.47 & O.XXIII, R.3---West

Pakistan Land Revenue Act (XVII of 1967), S.42---Constitutional petition---
Compromise decree---Execution---Grievance of the petitioners/ decree holders
was that they had approached Mukhtiarkar, (Land Revenue) and District Officer
(Revenue) for the mutation in the record of rights according to the compromise
decree in a suit, but they refused the mutation and therefore, it may be
declared that the act of Mukhtiarkar refusing to mutate the entry in the record
of rights in the name of petitioner/decree holders in accordance with the
compromise decree was illegal, mala fide and without lawful authority and that
both the officers be directed to mutate the record in the name of
petitioners/decree holders in accordance with the compromise decree---
Validity---Held, if the decree stopped short with declaring the rights and
sought to be enforced, it was a decree declaratory in nature---Parties, in the
present case, in the compromise decree, had settled the terms and conditions of
compromise and after specifying the survey number and areas, which was to be
held by each party, it had been agreed that after passing of decree the record
shall be prepared accordingly and Mukhtiarkar of the District was a party to
the compromise decree---When there was a specific condition in the
compromise and the compromise decree had been passed in pursuance of the
terms and conditions agreed between the parties containing the condition that
the record shall be prepared accordingly, it was not a decree declaratory in
nature simpliciter and therefore, if Mukhtiarkar being a party to the
compromise decree had refused to act according to the compromise, the decree
holders ought to have approached Civil Court for the execution of the decree---If
there was no dispute about the title of the land, in that case the Revenue
Authorities had no jurisdiction to refuse the mutation in accordance with a
decree of Civil Court on the ground that the suit was barred by time or decree
had become barred by time or the decree passed by the Civil Court was not in
accordance with the law---If, however, the decree was not capable of execution:
for the reason that it was between the parties who had no right in law to enter
into compromise in respect of the properties, for the reason that they were not
owners of the properties, the Revenue Authorities were justified in not mutating
valuable rights and were shown as owners in the record of rights---Such
'questions could be decided by the Civil Court and particularly the point that
the persons, in whose names the lands were mutated in the record of rights,
were bound by the compromise decree being successors-ininterest of the parties
Page No. 1 of 6
to the compromise---All such questions could not be decided in the
constitutional petition by the High Court and therefore, the petitioners may
pursue a remedy through Civil Court seeking clarifications on all such points as
well as execution of decree---Constitutional petition was disposed of in the said
terms by- the High Court.
Muhammad Yousuf v. Abdul Rashid PLD 1973 Kar. 686; Khushi Muhammad v.
Member, Board of Revenue 1992 CLC 125 and Ali Ahmad v. Muhammad Fazal
1972 SCMR 322 ref.
Moohanlal K. Makhijani for Petitioners.
Muhammad Bachal Tonyo, Addl. A.-G. Sindh along with Muhammad Hanif
Pitafi, Mukhtiarkar, Land Revenue, Taluka Bakrani.
Date of hearing: 24th May, 2006.
JUDGMENT
MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The grievance of the Petitioners is

that they approached the respondents Nos. 6 and 7 for the mutation in the
record of rights according to compromise decree in First class Suit No.60 of
1995, but they have refused the mutation and therefore, it may be declared that
the act of respondent A No.6, Mukhtiarkar, refusing to mutate the entry in the
record of rights in the names of the petitioners/decree holders in accordance
with the compromise decree is illegal, mala fide and without lawful authority
and that the respondents Nos. 6 and 7 be directed to mutate the record in the
name of petitioners/decree holders in accordance with the compromise decree.
The respondent No.6, Mukhtiarkar, has filed the parawise comments, stating
therein that respondent No.7, District Officer (Revenue), Larkana sent a letter
dated 18-2-2006 to him with the directions to go through the contents of the
compromise decree passed in First Class Suit No.60.of 1995 and taken further
necessary action in accordance with law. It is further stated that the report of
Tapedar was called, wherein details of the lands and names of Khatedars were
given. It was stated , that there are several survey numbers shown in the
compromise decree in the name of parties to the decree but in the record of
rights those survey numbers are not mutated in the names of such persons.
The Mukhtiarkar has further stated that he has himself gone through the
record and has verified the contents of report of Tapedar. He has stated that the
following survey numbers, which are mentioned in the compromise decree do
not belong to the parties in the compromise decree and their owner according to
the record. are as under:--
S. Nos.
Area
Owners according to R/R
Page No. 2 of 6
274
1-06 acres
Mst. Izzat Khatoon 0-50 Sultan 0-50
231
1-31 acres
Same as above
236
6-32 acres
Ghulam Muhammad Ghulam Ali Ghulam Mujtaba Mst. Ghulam Fiza
277
1-00 acres
Mst. Izzat Khatoon 0-50 Sultan 0-50
279
2-15 acres
=_
289/1
0-15 acres
452
5-11 acres
376
3-11 acres
Page No. 3 of 6
359
1-05 acres
250
7-12 acres
378/2
1-19 acres
379
2-04 acres
The above persons were not joined as parties in the Civil suit and they are not
party to the compromise decree and, therefore, the decree is not binding on the
above persons. He has further submitted that on account of the .above reasons
the compromise decree cannot be executed upon as per terms and conditions
mentioned in the decree. He has explained that he has refused to mutate the
record of rights as per terms and conditions of decree for the reasons that the
parties in the suit are not owners as per record of rights.
We have asked Mr. Moohanlal whether any execution application has been filed
before the civil Court for the execution of decree, to which he has replied that
no execution application has been submitted because the compromise decree is
a declaratory decree, which is not capable of being executed. He has further
submitted that without filing any execution application the petitioners are
entitled to get the mutation in the record of rights in pursuance of the
declaratory decree passed by the civil Court. In support of his contentions he
has placed reliance on a D.B. judgment of this Court in the case of Muhammad
Yousuf v. Abdul Rashid PLD 1973 Karachi 686, wherein it has been held that if
a decree does not contain any absolute direction but has stopped short with
declaring the rights and the obligations of the parties relating to the property
forming the basis of the claim sought to be enforced through execution
proceedings, the decree would be merely declaratory in nature and not capable
of execution. He has further replaced reliance on a single Bench judgment of
the Lahore High Court in the case of Khushi Muhammad v. Member, Board of
Revenue 1992 CLC 125, wherein it has been held that the Revenue Officer is
bound by a decree of the civil Court and has no authority to review or scrutinize
the merits of the decree of the Civil Court and even it is barred by time, the
Revenue authorities are obliged to sanction mutation on the basis of decree of
Page No. 4 of 6
the Civil Court. He has next placed reliance on the judgment of Honourable
Supreme Court in the case of Ali Ahmad v. Muhammad Fazal 1972 SCMR 322,
wherein it has been held that the Revenue authorities are under obligation to
sanction mutation on the basis of a decree.
We have examined the compromise decree and we are not persuaded to agree
with the submission of Mr. Moohanlal that it is a declaratory decree simpliciter.
The test has been laid down in the D.B. judgment of this Court in the case of
Muhammad Yousuf (supra), wherein it has been held that if the decree stops
short with declaring the rights and obligations of the parties relating to the
property forming the basis of the claim sought to be enforced, it was a decree
declaratory in nature. In the compromise decree in first class Suit No.60 of
1995 we find that the parties have settled the terms and conditions of
compromise and after specifying the survey number and the area, which shall
be held by each party, it has been agreed that after passing of decree the record
shall be prepared accordingly. Mukhtiarkar, Larkana was a party to the
compromise decree. Thus, when there is a specific condition in the compromise
and the compromise decree has been passed in pursuance of the terms and
conditions agreed between the parties containing the condition that the record
shall be prepared accordingly, it is not a decree declaratory in nature simpliciter
and therefore, if Mukhtiarkar being a party to the compromise decree has
refused to act according to the compromise, the decree holders ought to have
approached Civil Court for the execution of the decree.
Mr. Muhammad Bachal Tonyo has pointed out that at the time of submitting
compromise application the learned counsel for the plaintiff had filed statement
withdrawing the suit against respondents Nos. 4 to 6 i.e., Mukhtiarkar,
Larkana, S.H.O. Taluka Police Station, Larkana and Government of Sindh
through D.C. Larkana. Even if the suit was withdrawn against the respondents
Nos. 4 to 6, the record was to be mutated by the Revenue Authorities and the
civil Court is competent to get the decree executed. However, if Mr. Moohanlal is
of the view that the decree is declaratory in nature, the relief lies in filing the
suit for execution of a decree, more particularly because the facts are disputed.
According to Tapedar and Mukhtiarkar, the lands are mutated in the names of
persons who were not party to the suit and therefore, the trite law is that
nobody can transfer any right, title or interest in a property which he himself
does not hold in the said property. Mr. Moohanlal has submitted that the lands
are mutated in the names of the persons, whose heirs were party to the
compromise decree. This is also a question of fact and cannot be decided in
exercise of jurisdiction under Article 199 of the Constitution. The ratio of the
judgments, on which Mr. Moohanlal placed reliance, leads us to the conclusion
that if there is no dispute about the title of the land, in that case the Revenue
Authorities have no jurisdiction to refuse the mutation in accordance with a
decree of Civil Court on the ground that the suit was barred by time or decree
had become barred by time or the decree passed by the Civil Court was not in
accordance with the law. However, if the decree is not capable of execution for
the reason that it is between the parties who had no right in law to enter into
compromise in respect of the properties, for the reason that they were not
owner of the properties, the Revenue Authorities are justified in not mutating
valuable rights and are shown as owners in the record of rights. These
questions can be decided by the Civil Court and particularly the point that the
persons, in whose names the lands are mutated in the record of rights, are
bound by the compromise decree being predecessors-in-interest of the patties to
the compromise. All these questions cannot be decided in this petition and
therefore, the petitioner may pursue a remedy through Civil Court seeking
clarifications on all the above points as well as execution of decree. The petition
stands disposed of in the above terms.
M.B.A./G-23/K Order accordingly.
Page No. 5 of 6
2005 S C M R 1604
[Supreme Court of Pakistan]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed
Saeed Ashhad, JJ
Syed ISHAQUE HUSSAIN RIZVI and others---Petitioners
Versus
Sheikh MUBARIK ALI and others---Respondents
Civil Appeals Nos.342 and 351 of 2000, decided on 2nd May, 2005.
(On appeal from a common judgment of Lahore High Court, Lahore, dated 19-1-
2000 passed in R.S.A. No.47 of 1996).
Specific Relief Act (I of 1877)-----
----Ss. 12 & 8---Civil Procedure Code (V of 1908), S.41---Suit for specific

performance of agreement to sell land---Allottees, prior to the acquisition of
proprietary rights, entered into an agreement of sale of land with respondents
and subsequently they also entered into a sale agreement with appellants
through their attorney---Respondents, on coming to know about the
subsequent agreement, filed suit and later the parties in, the suit entered into
compromise on the basis of which, decree was passed in the suit---Agreement
between the parties in respect of the property, subject-matter of decree would
become subservient to said compromise and would lose its independent status
whereas the agreement entered between the parties subsequent to the passing
of the decree, would be entirely independent and on the basis of such
agreement, suit for specific performance and possession of land would be
competent---Right claimed by the respondents under the agreement having not
been created in their favour under the decree would not be determinable in
terms of S.47, C.P.C. and consequently, the suit would not be defeated on the
basis of technical objection---Decree being declaratory in character, would not
be as such capable of execution---Provisions of S.47, C.P.C. even otherwise
would not debar the suit---Sale in favour of appellants having taken place
during pendency of suit, would be hit by principle of its pendens and the
appellants would not. be considered bona fide purchasers---Legal character of
the agreement between the respondents under which they had acquired title in
the suit land to the extent of 2/3rd share under the decree and 1/3rd share on
the basis of agreement to sell, was an independent transaction and view of the
High Court that said agreement was void was contrary to law---Concurrent
findings of the two Courts subordinate, to the High Court on this specific issue,
was not liable to be disturbed by the High Court--Principles.
Page No. 1 of 5
Syed M. Kaleem A. Khurshid, Advocate Supreme Court for Appellants.
Muhammad Hanif Niazi, Advocate Supreme Court for Respondents.
Date of hearing: 2nd May, 2005.
JUDGMENT
MUHAMMAD NAWAZ ABBASI, J.--- These two direct cross-Civil Appeals

bearing Nos.342 of 2000 and 351 of 2000, filed under Article 185(2)(d) of the
Constitution of Islamic Republic of Pakistan by the parties against the
judgment, dated 19-1-2000 passed by Lahore High Court, Lahore in Regular
Second Appeal No.47 of 1996 are hereby disposed of through this consolidated
judgment. The appellants namely Syed Ishaque Hussain Rizvi, deceased
through Syed Hassan Abbas Rizvi and others (in Civil Appeal No.342 of 2000)
and Sheikh Mubarik Ali and others (in Civil Appeal No.351 of 2000) will be
called as appellants and respondents respectively, in this judgment.
2. The facts leading to the filing of above appeals are that the land measuring
349 Kanals, 19 Marlas was allotted to respondents Nos.3 and 4 (Syed Ihtisham
Ali Rizvi (deceased) and Syed Haider Abbas Rizvi), in Chak No.34/RB, District
Sheikhupura. The allottees prior to the acquisition of proprietary rights, entered
into an agreement dated 18-9-1961, of sale of land with respondents Nos.1 and
2 (Sh. Mubarik Ali and Mst. Naimat-un-Nisa Begum (deceased)) and
subsequently, they also on 1-1-1970 entered into a sale agreement of the same
land with the appellants through their attorney, Mst. Shamim Akhtar, wife of
Ishaq Hussain. The respondents Nos.1 and 2 on coming to know about this
subsequent agreement filed a suit on 26-12-1970 and later the parties in the
suit entered into a compromise on the basis of which, decree was passed in the
suit on 25-2-1977 in the following terms:--
urdu 1606
3. Subsequent to the disposal of the above suit, respondents Nos.3 and 4, on

30-7-1980, entered into an agreement of sale of their 1/3rd share in the land
with respondents Nos.1 and 2 and on failure of sellers to give effect to the
agreement, the buyers filed a suit for specific performance of the agreement
with possession of land including the land which fell to their share under
decree, dated 25-2-1977 and pending adjudication of this suit, respondents
Nos.3 and .4 on 13-1-1986, executed a sale-deed in favour of the appellants
whereupon respondents Nos.1 and 2 by way of amendment in the suit, added
the relief of cancellation of sale-deed. The learned trial Judge, however, decreed
the suit to the extent of 1/3rd share of respondents Nos.3 and 4 in the land
vide judgment dated 22-12-1991 but on appeals filed by both the parties a
learned Additional District Judge, Sheikhupura, vide judgment, dated 19-12-
1995, allowed the appeal of the respondents and decreed their suit in full
whereas the appeal of the appellants was dismissed. However, in second appeal
filed by the appellants in the High Court, the learned Judge in Chambers while
modifying the judgment of the Appellate Court, dismissed the suit to the extent
Page No. 2 of 5
of 1/3rd share of respondents Nos.3 and 4 in the land holding the agreement,
dated 10-7-.1980 as void.
4. Learned counsel for the appellants contends that this is settled law that all
questions arising between the parties or their representatives in the suit in
which decree was passed must be determined by the executing Court in terms
of section 47, C.P.C. for the satisfaction of decree and a separate suit is not
maintainable but in the present case all the three Courts erred in law in holding
that suit being not barred by the provisions of section 47, C.P.C. was
competent. Learned counsel next argued that the learned Judge in the High
Court having rightly come to the conclusion that the agreement dated 10-7-
1980, subject-matter of suit, was void, was misled in holding that the
appellants were not bona fide purchasers. The last contention of the learned
counsel was that the appellants were not party in the earlier suit and
consequently, the transaction of sale of land in their favour made by the
original allottee vide sale-deed, dated 13-1-1986, during the pendency of suit,
would not be hit by the principle of lis pendens.
5. Learned counsel for the respondents on the other hand (appellants in the
cross-appeal), contended that the High Court was misdirected in law in coming
to the conclusion that the agreement to sell dated 30-7-1980 was void whereas
it having been executed in consequence to the settlement of dispute vide
consent decree dated 25-2-1977 would be holding the field and on all fours,
was a legal and valid instrument. Learned counsel submitted that respondents
Nos.1 and 2 acquired title in the suit property to the extent of 2/3rd share
under the decree and would get 1/3rd share on the basis of agreement, dated
13-8-1980 which was entirely an independent transaction and remedy of
section 47, C.P.C. for the enforcement of this agreement would not be available
to them.
6. We have heard the learned counsel for the parties at length and also perused
the record with their assistance. The decree dated 25-2-1977 as was passed in
terms of the compromise and the dispute between the original allottee,
(respondents Nos.3 and 4) and Mubarik Ali etc. vendees, (respondents Nos.1
and 2) arising out of the agreement, dated 18-9-1961 was settled. In pursuance
of the decree, the original allottee (respondents Nos.1 and 2) executed an
agreement dated 13-8-1980 with its acknowledgements dated 31-8-1980 and
17-12-1980 for sale of 1/3rd share in the land to Sh. Mubarik Ali etc.
(respondents Nos.1 and 2), therefore, this subsequent agreement would acquire
the status of a valid document creating title in the property and learned Senior
Civil Judge, Sheikhupura, having considered it a legal instrument, decreed the
suit vide judgment, dated 27-12-1984 in the following terms:--
"As a result of my findings on the preceding issues this suit is decreed for
specific performance of the agreement dated 17-12-1980 in the terms that the
plaintiff have paid the entire consideration of 1/3rd of the total suit-land, that
defendants Nos.1 and 2 are directed to execute a sale - deed in favour of
plaintiffs in respect of 1/3rd share of the entire suit-land within a period of one
month, if they failed, the plaintiffs shall be entitled to get the deed executed
through the representative of this Court. The suit of the plaintiffs regarding rest
of the suit-land is dismissed. The sale - deed dated 13-7-1986, made in favour
of defendant No.3 is held ineffective to the rights of the plaintiffs to the extent of
1 /3rd share of the suit-land. The parties are left to bear their own costs. This
decree shall be treated ex parte against the defendants except defendant No.3."
Page No. 3 of 5
The decree passed by the trial Court was however, modified by the learned
Additional District Judge, Sheikhupura, in cross-appeals vide judgment dated
19-12-1995 in the following manner:--
"Under the circumstances, the instant Appeal No.153 filed by Mubarik Ali
plaintiff stands accepted and appeal filed by Syed Ishaque Hussain Rizvi Appeal
No.152 stands dismissed. The impugned judgment and decree dated 22-12-
1991 while dismissing the suit of the plaintiff/appellant of Appeal No.153 to the
extent of 2/3 of the suit-land stands set aside. Consequently, a suit filed by the
plaintiffs Sh. Mubarik Ali and Mst. Umat-un-Nisa shall stand decreed in their
favour and against the defendants in respect of whole of the suit-land. Parties
are left to bear their own costs."
7. We having examined the matter in the light of the contentions raised by the
learned counsel for the parties and decree passed in the previous suit, find that
the learned Judge in Chambers in the High Court was misled in holding that
the agreement dated 13-8-1980 was void. The agreements between the parties
in respect of the property, subject-matter of decree, dated 25-2-1977, would
become subservient to it and lost its independent status whereas the agreement
entered between the parties subsequent to the passing of the decree, would be
entirely independent and on the basis of such agreement, suit for specific
performance and possession of land would be competent. The provisions of
section 47, C.P.C. are analogous to other provisions of C.P.C. and does not as
such debar the remedy rather it regulates the forum for the enforcement of right
arising out of the decree. The civil rights subject to law, can be enforced
through a civil suit except the rights which flow from a decree and thus, a suit
for enforcement of decree is not competent under section 47, C.P.C. but in the
present case, the right claimed by respondents Nos.1 and 2 under the
agreement, dated 13-8-1980 having been not created in their favour under the
decree would not be determinable in terms of section 47, C.P.C. and
consequently, the suit would not be defeated on the basis of technical objection.
The decree dated 25-2-1977 being declaratory in character also would not be as
such capable for execution therefore, provisions of section 47, C.P.C. even
otherwise would not debar the suit. In the light of the position explained above,
we would take no exception to the view of the High Court in the matter.
However, the question relating to the dismissal of suit to the extent of 1/3rd
share in the property purchased by the respondents Nos.1 and 2 through the
agreement in question would need consideration. Ishaq Hussain Rizvi was real
brother of Ihtesham Hussain and Mst. Shamim Akhtar, widow of Ishaq Hussain
Rizvi, was attorney of Ihtesham Hussain. Ishaq Hussain was not party to the
agreement, dated 18-9-1961 and was also not a party in the suit in which
decree was passed in terms of compromise on 25-2-1977, by virtue of which
Mst. Shamim Akhtar was given 1/3rd share in the land for onward transfer in
the name of her husband, Ishaque Hussain, appellant herein, therefore,
notwithstanding the formal execution of decree and acquisition of proprietary
rights of the land by the original allottee, they could competently enter into a
sale agreement in respect of their 1/3rd share in the land and create a valid
title on the basis of which c respondents Nos.1 and 2 asserted their right for a
decree of specific performance with possession of land, including the land the
title of which they derived under the decree dated 25-2-1977 and consequently,
the sale-deed, dated 13-1-1986 executed by respondents Nos.3 and 4 in favour
of appellants would not as such affect their rights. In view of the above, the
observation of the learned Judge in the High Court that the sale in favour of
appellants having taken place during pendency of the suit, would be hit by the
principle of lis pendens and the appellants would not be considered bona fide
purchasers was unexceptional but the view regarding the legal character of the
agreement dated 13-8-1980 was contrary to law and the concurrent finding of
the two Courts subordinate to the High Court on this specific issue, was not
liable to be disturbed.
Page No. 4 of 5
9. In the light of foregoing discussion, we while setting aside the judgment of
the, High Court dismiss Civil Appeal No.342 of 2000 and allow Civil Appeal
No.351 of 2000 as a result of which, the decree, dated 19-12-1995 passed by
the Appellate Court shall stand restored. There will be no order as to costs.
M.B.A./I-113/S Order accordingly.
Page No. 5 of 5
2004 Y L R 1218
[Lahore]
Before Ch. Ijaz Ahmad, J
SALMA AKHTAR BHATTI---Petitioner
Versus
MEHBOOB QADIR SHAH and 5 others---Respondents
Civil Revision No.862 of 2003, decided on 15th January, 2004.
----S. 47 & O.XXI---Kinds of decrees and their execution ---Declaratory decree

is not executable and prohibitory decree can be executed only when it is
violated.
Gladstone, Wyllie & Co. Ltd. v. Badsha Miah PLD 1960 Dacca 305 and Board of
Intermediate & Secondary Education, Lahore and another v. Mrs. Najma
Khurshid and another 2001 MLD 89 ref.
(b) Limitation Act (IX of 1908)---
----Art. 181---Interpretation of Art. 181, Limitation Act, 1908---Prohibitory

decree, execution of---Decree granting permanent injunction that -prohibits
someone from doing an act is not capable of execution, as there is nothing to
execute, until there is a violation of the prohibitory injunction.
Shyam Sundar Prasad v. Ramdas Singh AIR 1946 Patna 392 ref.
----O. XXI, R.32---Constitution of Pakistan (1973), Art.199---Application of

O.XXI, R. 32, C. P. C. ---Order XXI, Rule 32, C. P. C. applies to both mandatory
and prohibitory injunctions accordingly, there is no ground for non-applying
Page No. 1 of 10
the O. XXI, C. P. C. to a case of writ of mandamus issued by the High Court, if
it is in the nature of a mandatory injunction---Application to enforce a decree
granting perpetual or prohibitory injunction is not subject to limitation---If a
prohibitory injunction is disobeyed the fresh cause of action arises for which
remedy is either by issuance of mandatory injunction or in some other way.
Pauls's case AIR 1969 Kerala 232; Subbayya's case AIR 1969 A.P. 92; Murari's
case AIR 1961 A.P. 482; Abdul Rajack's case AIR 1961 A.P. 482; State of Tamil
Nadu v. Messrs National Trading Corporation 1961 L.W. 263; Aram Sinogh v.
Salig Ram AIR 1975 Alaabad 11 and Him's case AIR 1957 A.P.44 ref.
(d) General Clauses Act (X of 1897)-----
----S. 24-A---Application of the petitioner submitted in terms of the judgments

of the Trial and Appellate Courts rejected by the respondents without any
cogent reasons--Duty and obligation of the respondents to decide the
application of the petitioner in accordance with law in view of S.24-A of the
General Clauses Act, 1897.
Messrs Airport Support Service's case 1998 SCMR 2268 ref.
Arif Karim for Petitioner.
Mian Muhammad Sultan Masood for Respondents Nos.2 to 4.
Kh. Muhammad Afzal for Respondent No.5.
Muhammad Hanif Khatana, Additional Advocate-General for Respondent No.6.
Mian Hameed-ud-Din, D.A.-G. and Syed Ali Zafar as Amicus Curiae.
ORDER
The brief facts out of which present revision petition arises are that the
petitioner filed a suit for declaration with consequential relief to the effect that
she is owner in possession of the plot bearing Khasra No.5779/3009/2
measuring 10 Marlas, 6 Square feet, situated in Revenue Estate of Mauza
Nawankot, Lahore. The said plot was purchased by her through registered sale
deeds dated 31-10-1988. According to her, the said deeds were given affect to in
the Revenue Record. Subsequently, the petitioner submitted proposed site-plan
for the constructions of a residential house over the plot in dispute in the year
1989, wherein the objection was raised by present respondent No.5 that the
plot falls in open space/children park and is situated in the sanctioned scheme
known as Nadir Ali Shah and Bashir Ali Shah. Thus, the petitioner-plaintiff
approached the Provincial Government/respondent No.6defendant No. 2
Page No. 2 of 10
through letter dated 17-2-1991 to amend the scheme so that to enable the
petitioner-plaintiff to construct her house in dispute, respondent No.6 directed
respondent No.5 to amend the scheme but respondent No.5 did not pay any
heed and failed to approve the site plan. Subsequently, respondent No.5
rescinded earlier sanction accorded to the petitioner vide letter dated 17-2-1991
through subsequent letter dated 8-6-1993. The petitioner being aggrieved filed a
suit for declaration with consequential relief against respondents Nos.5 and 6 in
the Court of Civil Judge 1st Class, Lahore, on 13-7-1993 on the ground that
withdrawal letter had been issued without affording opportunity of being heard
to the petitioner and since valuable right has accrued to the petitioner for
constructing a house on the plot in question dated 17-2-1991, therefore, the
same cannot be taken away through the impugned letter. That already 16
houses were constructed in that area and the said scheme is not in its original
shape nor is in existence at the spot. The petitioner has already raised
construction, therefore, the same cannot be demolished and the impugned
letter is illegal, void and thus respondents Nos.5 and 6 restrained to demolish
the constructions of the petitioner. Respondent No.5 in the said suit filed
written statement controverting the allegations levelled in the plaint. Out of
pleadings of the parties, the learned trial Court framed the following issues:--
(1) Whether the suit cannot proceed under the law? OPD
(2) Whether the plaintiff has filed this suit without any locus standi and
cause of action? OPD
(3) Whether the plaint is liable to be rejected under Order VII and rule 11,
C.P.C.? OPD
(4) Whether the letter dated 8-6-1993 is illegal, void, inoperative upon the
right of the plaintiff? OPP
(5) Whether the plaintiff is entitled to the decree prayed for? OPP
(6) Relief.
The learned trial Court decreed the suit of the plaintiff-petitioner vide judgment
and decree dated 10-6-1996. Respondent No.5 being aggrieved filed an appeal
before the learned Additional District Judge, Lahore, who dismissed the same
vide judgment and decree dated 17-7-1998. Respondent No.5 being aggrieved
filed Civil Revision vide Diary No. 1602 on 25-11-1998 before this Court, but
the same was returned with certain objection, thereafter the revision petition
was never resubmitted and it became time-barred. The petitioner filed a
Constitutional Petition No. 4978 of 2002 on 21-3-2002 in person with the
prayer that the respondents be directed to sanction the site-plan in terms of the
judgment and decree dated 10-6-1996 passed by the learned trial Court, which
was disposed of by this Court vide order dated 28-3-2002 with the direction to
the petitioner to file execution petition before the learned trial Court/Executing
Court.
Page No. 3 of 10
2. The petitioner filed execution petition before the aforesaid Executing Court
on 27-4-2002. In the meanwhile, respondent No.5 filed an application under
section 47 of C.P.C. read with section 3 and Article 181 of the Limitation Act.
The learned Executing Court dismissed the application of respondent No.5 and
accepted the execution petition of the petitioner vide order dated 28-3-2003
with the direction to respondent No.5 to act in accordance with order dated 19-
3-2003 passed by the Executing Court on the application of the petitioner and
to submit compliance report on 9-4-2003. Respondent No.5 being aggrieved
filed an appeal before the learned Additional District Judge, Lahore, who
accepted the appeal of respondent No.5 and dismissed the execution petition of
the petitioner as time barred, vide judgment dated 30-4-2003, hence the
present revision.
3. The revision petition was fixed before this Court on 23-5-2003 and the
following order was passed:--
"The question which, inter-alia, requires consideration, is whether decree

granting a prohibitory injunction applies by its own force without requiring any
execution and whether Article 181 of the Limitation Act has wrongly been
applied by the First Appellate Court. "
4. Mian Hameed-ud-Din Kasuri, D.A.-G. and Syed Ali War, Advocate, were
directed to assist the Court on the next date of hearing as Amicus curiae.
5. The learned counsel of the petitioner submits that the petitioner approached
respondent No.5 for sanctioning of the site-plan but the official of the
respondents pointed out that respondent No.5 has filed revision petition before
the High Court, therefore, her application would be decided after the decision of
revision petition. He further submits that respondent No.5 had withdrawn the
revision petition from this Court on 26-2-2001, therefor, time would be started
from the date of withdrawal of revision petition filed by respondent No.5 from
this Court, hence the First Appellate Court erred in law to dismiss the execution
petition of the petitioner as time-barred. He further submits that the suit of the
petitioner was accepted and respondents were restrained to demolish the
constructions of the petitioner and also directed the respondents to sanction
the site-plan, therefore, the right of the petitioner is established by virtue of
judgment and decree of the learned trial Court dated 10-6-1996 and the date of
judgment and decree dated 17-7-1998 of the learned Additional District Judge,
Lahore is continuing, therefore, there is no need to file execution petition
separately. He further submits that the petitioner approached respondent No.5
directly time and again and submitted her application in this regard as record
of file of the petitioner had been misplaced by the respondents as is evident
from the contents of the application filed by the petitioner before respondent
No.5. The mandatory injunction has also been granted in favour of the
petitioner, but this fact was hot considered by the First Appellate Court in its
true perspective. He further submits that the First Appellate Court observed in
the impugned judgment in the following terms in Para. No.7:--
"It is unfortunate that the respondent lady could not file an application under
section 5 of the Limitation Act alongwith her execution petition, may be, due to
lack of proper legal assistance. Had she filed such application, the delay caused
in filing of execution application, probably on account of misunderstanding the
processing of memorandum of revision by the office of the Honourable High
Court, it might had been considered as a sufficient cause to condone the delay
under application under section 5 of the Limitation Act. "
Page No. 4 of 10
6. The learned counsel for respondents Nos.2 to 4 submits that the revision
petition filed. by respondent No.5 before this Court was not fixed before any
Court. Office had raised objection on the memorandum of revision petition,
which was returned to respondent No.5, who did not resubmit the same till date
and this Court had not suspended the judgment of Courts below passed in
favour of the petitioner, therefore, time consumed in this Court cannot be
excluded in view of section 15 of Limitation Act. In support of his contention, he
relied upon "Muhammad Hussain and others v. Muhammad Aslam" 1988
SCMR 151. He further submits that the decree is executable; therefore, the
petitioner has to file the execution petition within 3 years in terms of Article 181
of the Limitation Act. The petitioner has not filed execution petition before the
learned trial Court/Executing Court within prescribed period, therefore, the
First Appellate Court was justified to accept the appeal of respondent No.2 as
the petitioner had filed execution petition after 3 years. The execution petition
was fixed on 27-4-2002, which had become time-barred to the extent of 286
days. He further submits that the petitioner failed to explain delay of each day
and did not file an application under section 5 of Limitation Act for condonation
of delay as the petitioner had not filed first application for execution within 3
years, therefore' the petitioner is not entitled under the law to take benefit
under section 48 of C.P.C In support of his contention, he relied upon "National
Bank of Pakistan v. Mien Aziz-ud-Din and others" 1996 SCMR 759.
7. Kh. Muhammad Afzal, Advocate/ legal advisor of respondent No.5 submits

that the petitioner is well within her right to file an application before the
respondent No.5 for sanctioning of site-plan on the basis of two judgments
passed by the lower Courts in her favour.
8. Mian Hameed-ur-Din, D.A.–G as Amicus curiae submits that judgment is

decree composite consisting of declaratory Brits of and prohibitory decree. The
judgment Whole the Courts below must be read as a whole then it is a
simplicitor declaratory decree and consequential relief has been given by the
Courts below to the petitioner, therefore, Article 181 of the Limitation Act, is not
applicable. He further submits that Article 182 of Limitation Act has been
omitted, but this fact was considered by Peshawar High Court. According to
which, the petitioner can file an execution petition within 6 years. In support of
his contention, he relied upon "Raza Muhammad Khan and others v. Jalal-ud-
Din Khan and others" 1988 CLC 30. He further submits that the petitioner even
without filing executing petition is within her right to file an application before
the respondents for sanctioning of site-plan. Coupled with the facts that the
respondents are restrained by the Courts to demolish the constructed house of
the petitioner, therefore, this aspect was not considered in its true perspective
by the First Appellate Court and erred in law to accept the appeal of respondent
No. 2.
9. Syed Ali War, Advocate as Amicus curiae submits that decree is an

executeable as the Courts have granted prohibitory injunction in favour of the
petitioner in view of section 2(2) read with Order 21, rule 10 and Order 32, rule
21, C.P.C. In support of his contention, he relied upon the following
judgments:--
"Burhan-ud-Din Ahmed and others v. Veda Brata Chakaraborti and others"

PLD 1964 Dhacca 661
"Muhammad Hussain and others v. Muhammad Aslam" 1998 SCMR 151
Page No. 5 of 10
"U.C. Darya Khan Sooho, Mirpur v. Messrs Bewan Sugar Mills" 1989 MLD 385
"Muhammad Azam Khan and others v. Nobat Khan and others" 1990 MLD
1450
He further submits that the application of the petitioner was rejected by the
respondents on 16-8-2001, therefore, the First Appellate Court erred in law to
accept the appeal of the respondents and to dismiss the execution petition of
the petitioner as time-barred, without adverting to the wording of Article 181 of
the Limitation Act, wherein the Legislature in its wisdom has specifically
mentioned when the right to apply accrues which right has been accrued to the
petitioner on the rejection of the application of the petitioner on 16-8-2001. In
support of his contention, he relied upon the following judgments:--
"Sheo Lal and another v. L. Devi Dasannd another" AIR 1952 Alaabad 900
"Merla Ramanna v. Nallaparaju and others" AIR 1956 SC 87
"Gyaniram v. Gangabai" AIR 1957 MP 85
"Kartar Singh v. Sultan Singh Patrap Singh" AIR 1967 Punjab 375
"Muhammad Hussain and others v. Muhammad Aslam" 1988 SCMR 151
10. I have given my anxious consideration to the contentions of the learned

counsel of the parties and perused the record.
11. It is better and appropriate to reproduce the basic facts in chronological

orders alongwith the operative part of judgment and decree of the learned trial
Court dated 10-6-1996 and operative part of judgment of First Appellate Court
dated 17-7-1998 to resolve the controversy between the parties:--
(1) The petitioner was allowed to raise constructions over the plot in
question through letter dated 17-9-1991.
(2) The said letter had been withdrawn by the respondents vide order dated
8-6-1993.
Page No. 6 of 10
(3) During this interregnum period, the petitioner had raised constructions
on the plot in question.
(4) The petitioner had also deposited the fee in the month of January,
1989.
(5) The report was called from the Patwari and Patwari submitted report
that scheme was not acted upon and other persons have also raised similar
constructions.
(6) The petitioner filed a suit for declaration with consequential relief in the
Court of Civil Judge 1st Class, Lahore on 13-7-1993.
(7) The said suit was decreed on 10-6-1996.
(8) The respondents filed an appeal before the learned Additional District
Judge, who dismissed the same vide judgment and decree dated 17-7-1998.
(9) The respondents filed civil revision before this Court vide Diary No.
1602 on 25-11-1998.
(10) Office returned the same to the respondents with certain objections.
(11) The respondents never resubmitted the same and it has been become
time-barred.
(12) The petitioner filed herself Constitutional Petition No.4978 of 2002

without attaching all the pleadings of the Courts below alongwith Constitutional
petition in person, which was disposed of vide order dated 28-3-2002 with the
observations that the petitioner has alternative remedy to file an execution
petition before the Executing Court.
(13) The petitioner filed execution petition before the Executing Court on 27-
4-2002; whereas the respondents filed objection petition and the learned
Executing Court decided both by one consolidated order dated 28-3-2003,
wherein the execution petition was accepted and the objection petition was
dismissed.
(14) The respondents filed an appeal before the learned Additional District
Judge, Lahore who accepted the same on the ground that the petitioner did not
file an execution petition within three years which is prescribed under Article
181 of the Limitation Act with the lapsed of 286 days.
Page No. 7 of 10
(i) The operative part of judgment and decree dated 10-6-1996 of the
learned trial Court.
Issue No.4
Whether letter dated 8-6-1993 is illegal, void and ineffective qua the plaintiff's
right? OPP
"So it is proved that the defendants have deviated from the original site-plan.
The defendants in rebuttal have failed to produce any evidence. So this issue is
decided in favour of the plaintiff."
Relief
"Keeping in view of my findings on the above issues, I do hereby pass a decree

in favour of the plaintiff to the effect that the defendants be restrained from
demolishing the constructions of the plaintiff on the plot in dispute, and, to
sanction the site-plan as per rules. The parties are left to bear their own costs. "
(ii) The operative part of judgment and decree dated 17-7-1998 passed by
the First Appellate Court.
"Once the permission having been granted and the plaintiff having raised the
constructions thereon, defendant No.1/MCL was not competent to withdraw the
same in such a slipshod manner especially when the valuable right had
accrued to the plaintiff and she had raised construction thereon. The
defendants have not led any evidence before the learned trial Court that
whether the plaintiff was given any proper opportunity of being heard and in
the absence thereof the impugned notice even otherwise is illegal and cannot be
given effect too. All these aspects have been considered by the learned trial
Court and no exception can be taken to the findings recorded by the learned
trial Court in this behalf nor there is any legal infirmity in the impugned
judgment. "
(iii) It is also better and appropriate to reproduce the contents of the

application of the petitioner filed before the respondents on 6-8-2001, which
was rejected by the respondent on 16-8-2001.
12. In case, the aforesaid operative part of the and decree dated 10-6-1996 be a
whole then, it brings that trial Court has passed in favour of the petitioner
(i) The letter dated 8-6-1993 of the respondents was declared illegal void
while deciding issue No.4. Consequently the letter dated 17-2-1991 was stood
restored automatically.
Page No. 8 of 10
(ii) The respondents were restrained to demolish the constructions of the
petitioner on the plot in question.
(iii) The respondents were directed to sanction the site-plan as per rule.
It is also settled principle of law that simplicitor declaratory decree is not an

executable as per law laid down in "Gladstone, Wyllie & Co. Ltd. v. Badsha
Miah" PLD 1960 Dacca 305 and "Board of Intermediate & Secondary Education,
Lahore and another v. Mrs. Najma Khurshid and another" 2001 MLD 89. It is
also settled principle of law that the prohibitory decree can be executed when
the prohibitory decree is violated. In arriving to this conclusion, I am fortified by
"Shyam Sundar Prasad v. Ramdas Singh" AIR 1946 Patna 392, wherein Article
181 of the Limitation was interpreted in the following terms:--
"Where a decree prohibits the defendant from obstructing a village path it is a

decree granting permanent injunction and is not capable of execution on the
date it is passed or in other words, until an obstruction is caused there is
nothing to execute. In such circumstances, its execution may not be necessary
till after 12 years of the date of its passing. As soon as any obstruction is
caused and the Court's order in that behalf is breached a cause of action for
enforcement of the decree arises. In such cases Article 181 of Limitation Act,
applies and not Article 182 and the decree-holder's right to apply accrued only
when the obstruction is caused. Such a decree is beyond the reach of the bar
provided in section 48, Civil Procedure Code, (21) 8 AIR PC 31".
It is also pertinent to mention here that the respondents did not give any threat
to the petitioner to demolish her constructions over the plot in question. The
respondents had rejected the site plant of the petitioner as directed by the
learned trial Court in the said judgment and decree on 16-8-2001. Order 21,
rule 32 of C.P.C. applies to the injunction both mandatory and prohibitory. In
arriving to this conclusion, I am fortified by the following judgments: --
Pauls's case AIR 1969 Kerala 232
Subbayya's case AIR 1969 A.P. 92
Murari's case AIR 1961 A.P. 482
Abdul Rajack's case AIR 1961 A.P. 482
It is also settled principle of law that there is no ground for non-applying of

Order 21, rule 32 of C.P.C. to a case of writ mandamus issued by this Court, if
such a suit is in the nature of merely a mandatory injunction issued by the
Court. In arriving to this conclusion, I am fortified by "State of Tamil Nadu v.
Messrs National Trading Corporation" 1961 L.W. 263. It is also settled principle
of law that the application to enforce a decree granting perpetual/ prohibitory
injunction is not subject to limitation. In arriving to this conclusion, I am
Page No. 9 of 10
fortified by the law laid down in "Aram Siongh v. Salig Ram" AIR 1975 Ala-abad
11. It is also settled principle of law that if simple prohibitory injunction is
disobeyed the fresh cause of action arises for which remedy either by
mandatory injunction or in some other way has to state for in a suit as per law
laid down by "Him's case" AIR 1957 A.P. 44.
13. In view of what has been discussed above, the judgment of First Appellate
Court is not sustainable in the eye of law.
It is pertinent to mention here that the petitioner had submitted an application

after the judgments of the learned trial Court and the First Appellate Court
before the respondents for sanctioning of the site-plan, which was rejected by
the respondents without any cogent reasons. It is the duty arid obligations of
the respondents to decide the application of the petitioner in accordance with
law in view of section 24-A of the General Clauses Act, as per principle laid
down by the Honourable Supreme Court in "Messrs Airport Support Service's
case" 1998 SCMR 2268. As mentioned above, it is a composite decree, the
respondents have no lawful authority in view of two decrees in favour of the
petitioner, to demolish the constructions over the plot of the petitioner,
therefore, keeping in view the contents of the application of the petitioner,
which was submitted by her for sanctioning of the site plan and that the file of
the petitioner was misplaced, the respondents are directed to sanction the site-
plan of the petitioner in terms of judgment and decree of the learned trial Court
within two months afresh. In case, the respondents reject the site-plan of the
petitioner then the petitioner is well within her right to avail the proper remedy
before the competent authority/Court.
13. At the end, I must put on record my deep sense of appreciation for valuable
assistance of the Court by the learned counsel of rival party and the learned
Amicus curiae Ch. Hameed-ud-Din, D.A.-G. and Syed Ali Zafar, Advocate, who
have taken a lot of pain to assist this Court.
This civil revision is disposed of in view of the aforesaid observations.
W.A.M./S-5/L Order accordingly.
Page No. 10 of 10
2003 S C M R 29
[Supreme Court of Pakistan]
Present: Syyed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ
Syeda TAHIRA BEGUM and another---Petitioners
Versus
Syed AKRAM ALI and another---Respondents
Civil Petition for Leave to Appeal No.52 of 2002, decided on 11th September,
2002.
(On appeal from the judgment of Peshawar High Court, Circuit Bench,
Abbottabad, dated 19-10-2001 passed in Civil Revision No. 12 of 1997).
(a) Civil Procedure Code (V of 1908)----
----O.I, Rr.1 & 3---Impleading a person as party---Object---Purpose of

impleading a person as a party in a case is to provide such person an
opportunity of hearing in the matter.
(b) Civil Procedure Code (V of 1908)----
----S. 47 & O.I, R.10---Constitution of Pakistan (1973), Art.185(3)--Execution

application ---Objection---Misjoinder of necessary party --Declaratory decree
was passed in favour of plaintiff and execution application was filed---
Judgment-debtor was represented through her husband as general attorney---
Husband of judgment-debtor at the the of execution application filed objection
petition on the ground that possession of the suit property was not with the
judgment-debtor, rather it was with him and he was not impleaded as party to
the suit by the plaintiff---Validity---Suit property was purchased by the decree-
holders as far back as 13-12-1972, and more than three decades had gone by
but the decree-holders were still hovering in the Court to get their grievance
redressed---Husband of the judgment-debtor was appearing throughout as
attorney of his wife, if he had any grouse, he could have taken a formal step
when he was defending the suit out of which the present execution petition had
emanated---Supreme Court did not allow the husband of the judgment-debtor
at such late juncture by employing technical objections to frustrate a decree
secured by the decree holders---Objection petitioner in a mala fide manner
through technical objections had been able to impede the course of justice---
High Court had given cogent reasons in the judgment for setting aside the
Page No. 1 of 4
determinations of the two Courts below---Objection petitioner failed to point out
any legal infirmity in the judgment passed by High Court warranting
interference by Supreme Court---Leave to appeal was refused.
(c) Administration of justice---
----Technicalities---Scope---Cases of parties should be decided on merits---If a

party upon evidence brought on record has established his case on merits, then
such party should not be knocked out on technical grounds---Rules and
procedures are framed to foster the cause of justice and should sparingly come
into the way for dispensation of the same on merits.
Adam Khan Jadoon, Advocate Supreme Court for Petitioners.
Nemo for Respondents
Date of hearing: 11th September, 2002
ORDER
TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment

dated 19-10-2001 rendered by the learned Chief Justice of the Peshawar High
Court at Circuit Bench, Abbottabad, accepting Revision Petition No. 12 of 1997
filed by the respondents by setting aside the judgments dated 19-3-1995 and
26-10-1996. passed respectively by the learned Civil Judge, Abbottabd, and the
learned District Judge, Kohistan Camp at Abbottabad.
Briefly stated facts of the case are that the respondents filed a suit on 15-4-
1979 against petitioner No. 1 Syeda Tahira Begum seeking declaration to the
effect that they had purchased Hissadari in the suit land and the
defendant/petitioner No.1 be restrained from interfering in their possession. A
prayer for possession was also made in case the respondents were found to be
out of possession. The learned Civil Judge, Abbottabad, vide his judgment
dated 20-6-1987 granted a declaration and perpetual injunction to the
respondents. However, their prayer for possession of the disputed land was
rejected.
The respondents filed execution proceedings on 7-3-1989 which were objected

to by petitioner No. 1 taking exception to the same on the ground that the
decree, being a declaratory one, was not capable of execution and further she,
being a Pardah Nashin lady, had not interfered with the possession of the
respondents. The learned Executing Court vide its order dated 2-9-1991
rejected the execution petition. The respondents filed an appeal against the
above order which was accepted by the learned District Judge, Abbottabad, vide
his order dated 21-3-1993 and the objection petition was remitted to the
Executing Court to determine the issue if petitioner No. 1 /judgment-debtor has
had an opportunity of obeying the decree and had wilfully failed to obey it.
Page No. 2 of 4
After the remand the learned Executing Court vide its order dated 19-3-1995
rejected the objection petition on the ground that the property under dispute
was in possession of petitioner No.2 Syed Taimoor Shah, husband of petitioner
No. 1/judgment-debtor, who was not impleaded as a party in the original suit.
The respondents filed an appeal against the said order which was rejected by
the learned District Judge, Kohistan Camp at Abbottabad, vide his order dated
26-10-1996. The respondents preferred Civil Revision No.12 of 1997 before the
Peshawar High Court at Abbottabad, which has been accepted by the learned
Chief Justice through his judgment dated 19-10-2001, impugned herein.
Hence, this petition for leave to appeal.
We have considered the contentions raised by the learned counsel for the
petitioners and have perused the entire material placed on record. It must be
stated at the very outset that the respondents purchased the disputed land
measuring 3 Kanals and 8 Marlas vide Mutations Nos.3008 and 3009 attested
on 13-12-1972. The petitioners/defendants claimed ownership in the joint
property vide Mutation No.3912 attested on 14-1-1979. The suit was contested
by petitioner No. 1 Syeda Tahira Begum through her husband and attorney
Syed Taimoor Shah, petitioner No.2. It was never pleaded at that juncture that
the disputed property was in possession of said Syed Taimoor Shah or that he
was not impleaded as a party. He hotly contested this matter and kept mum
regarding his possession as stated by petitioner No. 1 in her objection petition.
However, in order to frustrate the decree in a mala fide manner, this plea was
taken simply to thwart the execution of the decree.
' The plea that Syed Taimoor Shah was not impleaded as a party and was not
afforded an opportunity of hearing is devoid of any force in the circumstances of
the present case. The purpose of impleading a person as a party in a case is
that he shall be provided with. an opportunity of hearing in the matter. In the
case in hand, as reflected from the documents, Syed Taimoor Shah was
appearing throughout as attorney of his wife Syeda Tahira Begum, petitioner
No. 1. Had he any grouse he could have taken a formal step when he was
defending the suit out of which the present execution E petition had emanated.
He at this late juncture by employing these technical objections cannot be
allowed to frustrate a decree secured by the respondents.
It has been stated time and again that the cases of the parties should be
decided on merits. If a party upon evidence brought on record has established
his case on merits, then he should not be knocked out on r technical grounds.
Rules and procedures are framed to foster the cause of justice and should
sparingly come into the way for dispensation of the same on merits. Reliance in
this respect is placed upon Imran Ashraf and 7 others v. The State (2001 SCMR
424), Nazir Ahmed and another v. Muhammad Din and others (2001 SCMR
440), Imtiaz Ahmed v. Ghulam and 2 others (PLD 1963 SC 382) and Manager,
Jammu and Kashmir State. Property in Pakistan v. Khuda Yar and another
(PLD 1975 SC 678).
At the cost of repetition it is stated that the property under dispute was
purchased by the respondents as far back as on 13-12-1972. More than three
decades have gone by but the respondents are still hovering in the .Courts to
get their grievance redressed. The petitioners have successfully, in a mala fide
manner through technical objections, been able to impede the course of justice.
The then learned Chief Justice of the Peshawar High Court has given cogent
reasons in the impugned judgment for setting aside the determinations of the
two Courts below. Learned counsel for the petitioners has failed to point out
any legal infirmity in the impugned judgment warranting interference by, this
Court.
Page No. 3 of 4
Resultantly, for what has been stated above, the instant petition being devoid of
any merit and force is hereby dismissed and leave declined.
Q.M.H./T-45/S Petition dismissed
Page No. 4 of 4
2002 Y L R 2553
[Lahore]
Before Farrukh Lateef, J
MUHAMMAD ASLAM---Petitioner
Versus
DISTRICT OFFICER, REVENUE, SAHIWAL and another---Respondents
Writ Petition No.4417 of 2002, decided on 6th June, 2002.
----Ss.2(2), 47 & O.XXI---Decree, execution of---Scope---Decree in order to be

executed should be capable of execution i.e. it should order the doing or
restraining the doing of an act.
(b) Specific Relief Act (I of 1877)---
----Ss.42 & 55---Constitution of Pakistan (1973), Art.199---Civil Procedure Code

(V of 1908), S.47 & O.XXI --- Constitutional petition---Execution of declaratory
decree--Decree was passed in favour of petitioner declaring him allottee in
possession of suit property---Revenue Authorities declined to implement the
decree by attesting mutation in his favour on the basis of decree---Plea raised
by the petitioner was that the Revenue Authorities were under legal obligation
to attest the Mutation on the basis of such decree---Validity---Ownership of the
petitioner could have been incorporated only if terms of decree contained a
mandatory injunction under S.55 of Specific Relief Act, 1877, to compel
performance of the requisite act---Decree passed in favour of the petitioner was
not executable and application for its execution/implementation was not filed
before the Court which had passed the decree but was moved before the
Revenue Authorities requiring him to do an act which the terms of decree did
not direct to be done by the judgment-debtor and on his reluctance to do the
needful a direction was being sought from High Court through Constitutional
petition for directing the judgment-debtor to do that which he was not required
by law to do--High Court declined to issue any direction to the Revenue
Authorities, for attestation of mutation---Petition was dismissed in limine.
Page No. 1 of 4
----Ss. 2(2), 47 & O. XLVII---Decree, execution of---Extent---Decree is to be
executed in accordance with its terms and conditions without modification.
(d) Civil Procedure Code (V of 1908)---
----S.51---Execution of decree ---Modes--Granting supplementary or alternate

relief---Provisions of S.51(e), C.P.C.---Applicability---Modes to be adopted by a
Court executing decree have been enumerated in S. 51; C. P. C.---Mode of
execution mentioned in cl. (e) of S.51, C. P. C. whereby Executing Court is
empowered to order execution of decree in such other manner as the nature of
relief may require, is a residuary clause and is resorted to when the decree
cannot be executed by any of the means provided by cls. (a) to (d) of S.51, C. P.
C. ---Executing Court is not authorized under cl. (e) of S. 51, C. P. C. to grant
supplementary or alternate relief or a relief not allowed by the decree.
Tariq Muhammad Iqbal for Petitioner.
ORDER
He has been heard; writ petition and its annexures have also been perused.
2. Facts of the writ petition are that Muhammad Aslam son of Nazir Ahmad
filed a suit against Province of Punjab, A.C. Saddar District, Sahiwal and one
Abdul Sattar for a declaration that he is in possession of Plot No.9/1/1/1
measuring 1 marla situated in Jinnah Colony, Tehsil and District Sahiwal, by
virtue of being allottee thereof.
3. By way of consequential relief it was prayed that defendant No.2 be

perpetually restrained from changing entries in the Revenue Record thereby
showing respondent No.3 as owner of the said plot and all the respondents be
restrained from denying his ownership or from interfering with his possession
over the said plot for all times to come.
4. The said suit was decreed on 8-6-1994. On 30-7-1999 decree-holder moved

an application (Annexure F) to the Tehsildar, Sahiwal (respondent No.2), a
functionary of the judgment-debtor for implementing the said decree by
attesting a mutation on the basis thereof in his favour and incorporating his
ownership in the Revenue Record.
5. It is urged that respondent No.2 is bound to implement the said decree but
he is not performing his statutory duty and there is no other remedy available
to the petitioner except to invoke the Constitutional jurisdiction of this Court.
Prayer is that a direction be issued to judgment-debtor (respondent No. 1) to
implement the said decree in the aforesaid manner.
Page No. 2 of 4
6. Through this Constitutional petition, in fact, decree of Civil Court is desired
to be enforced/implemented. The petitioner has got remedy of filing an
execution application before the Court which had passed the decree, under rule
10 of Order XXI Civil Procedure Code which provides that where holder of a
decree desires to execute it, he shall apply to the Court which passed the decree
or to the Court to which it is sent for execution.
7. Decree (Annexure E) which is required to be implemented is purely a

declaratory decree declaring title of the decree holder in the suit property with
consequential relief of perpetual injuction restraining the judgment debtor from
denying his title and from interfering with his possession over the said property.
8. A decree, in order to be executed, should be capable of execution i.e. it

should order the doing or restrain the doing of an act.
9. First portion of the decree is purely declaratory and as such cannot be

executed. Second portion thereof provides preventive relief granted under
section 54 of the Specific Relief Act whereby judgment-debtors have been
restrained from denying ownership of the decree-holder and have been
forbidden to interfere with his possession.
10. It is not complained that any of the judgment-debtors has denied title of or
has interfered with possession of the decree-holder.
11. Demand of the decree holder (petitioner) is that respondent No.2 (Tehsildar)
a functionary of judgment-debtor No. 1 (Province of Punjab) be directed to
implement the decree by attesting a Mutation in favour of the decree-holder and
incorporating his ownership in the Revenue Record. This could have been
possible only if terms of the decree contained a mandatory injuction under
section 55 of the Specific Relief Act to compel performance of the requisite act.
12. Copy of judgment (Annexure B) shows that issuance of mandatory

injunction by way of consequential relief was neither prayed for in the plaint
nor the said relief was granted by the Court. Consequently mandatory
injunction to compel the requisite act was not granted in the decree.
13. A decree is to be executed in accordance with its terms and conditions

without modification.
14. Section 51 of Civil Procedure Code enumerates generally the modes to be

adopted by a Court executing decree. Mode of execution mentioned in clause (e)
of section 51, Civil Procedure Code whereby executing Court is empowered to
order Execution of the decree in such other manner as the nature of relief may
require, is a residuary clause and is resorted to when the decree cannot be
executed by any of the means provided by clauses (a) to (d). Clause (e) does not
authorise granting supplementary or alternate relies or a relief not allowed by
the decree.
Page No. 3 of 4
15. It appears that being mindful of the above situation that decree was not
executable, application for its execution implementation was not tiled before the
Court which had passed the decree but was moved before the Tehsildar
(respondent No.2) requiring him to do an act which the terms of the decree did
not direct to be done by the judgment-debtors and on his reluctance to do the
needful now a direction is being sought from the High Court through this
Constitutional petition for directing respondent No. 1 (judgment-debtor) to do
that which he is not required by the law to do.
16. For the reasons stated above, the direction sought by the petitioner cannot
be issued, writ petition is accordingly dismissed in limine.
Q.M.H./ M.A.K./M-1317/L Petition dismissed.
Page No. 4 of 4
2002 Y L R 1302
[Lahore]
Before Farrukh Lateef, J
MUHAMMAD ASLAM---Petitioner
Versus
MEMBER BOARD OF REVENUE---Respondent
Writ Petition No.4417 of 2002, decided on 6th June, 2002.
----O.XXI---Execution of decree---Decree in order to be executed should be

capable of execution i.e. it should order doing or restraining the doing of an act.
(b) Specific Relief Act (I of 1877)---
----Ss.42 & 54---Civil Procedure Code (V of 1908), S. 38---Suit for declaration

and perpetual injunction---Execution of decree--Scope---Portion of decree which
is purely declaratory cannot be executed.
(c) Specific Relief Act (1 of 1877)---
----S.55---West Pakistan Land Revenue Act (XVII of 1967), S.42---Civil

Procedure Code (V of 1908), S.38---Mandatory injunction--Attestation of
mutation---Execution of decree---Decree-holder wanted direction to functionary
of judgment-debtor to implement the decree by attesting mutation in favour of
the decree-holder and incorporating his ownership in Revenue Record---
Validity--Such direction could have been possible only if the terms of decree
contained a mandatory injunction under S.55 of Specific Relief Act, 1877, to
compel performance of the requisite act.
(d) Civil Procedure Code (V of 1908)---
Page No. 1 of 4
----O.XXI---Execution of decree---Decree is to be executed in accordance with
its terms and conditions without modification.
(e) Civil Procedure Code (V of 1908)---
----S. 51 (e)---Enforcement of decree--Granting of supplementary or alternate

relief---Powers of Executing Court---Scope--Executing Court is empowered to
order execution of decree under the provisions of S.57 (e), C. P. C. in such
manner as the nature of relief may require---Provision being a residuary clause,
the same is resorted to when the decree cannot be executed by any of the
means provided by cls. (a) to (d) of S. 51 C.P.C---Executing Court is not
authorized under S. 51(e), C. P. C. to grant supplementary or alternate relief or
a relief not allowed by the decree.
(f) Specific Relief Act (I of 1877)---
----S. 42---Civil Procedure Code (V of 1908), S.38---Constitution of Pakistan

(1973), Art. 199---Constitutional petition---Execution of decree ---Declaratory
decree was passed in favour of petitioner whereby title of the suit property was
declared in his favour--Petitioner instead of filing execution petition before the
Executing Court, applied to Revenue Authorities for making entries in Revenue
Record on the basis of the decree--Revenue Authorities refused implementation
of the decree---Validity---Decree being not executable, application for its
execution/implementation was not filed before the Court which had passed the
decree but was moved before the Revenue Authorities (Tehsildar) requiring him
to do an act which the terms of the decree did not direct to be done by the
judgment-debtors and on his reluctance to do the needful, a direction was being
sought from High Court through the Constitutional petition for directing the
Revenue Authorities to do that which he was not required by law to do--High
Court declined to issue direction sought by the petitioner under, Constitutional
jurisdiction---Petition was dismissed in circumstances.
Tariq Muhammad Iqbal for Petitioner.
ORDER
He has been heard; writ petition and its Annexures have also been persued.
2. Facts of the writ petition are that Muhammad Aslam son of Nazir Ahmad
filed a suit, against Province of Punjab, A.C. Saddar District, Sahiwal and one
Abdul Sattar for a declaration that he is in possession of Plot No.9/1/1/1
measuring 1 Marla situated in Jinnah Colony, Tehsil and District, Sahiwal, by
virtue of being allottee thereof.
3. By way of consequential relief it was prayed that defendant No.2 be

perpetually restrained from changing entries in the Revenue Record thereby
showing respondent No.3 as owner of the said plot and all the respondents be
Page No. 2 of 4
restrained from denying his ownership or from interfering with his possession
over the said plot for all times to come.
4. The said suit was decreed on 8-6-1994. On 30-7-1999 decree-holder moved

an application (Annexure F) to the Tehsildar, Sahiwal (respondent No.2), a
functionary of the judgment-debtor for implementing the said decree by
attesting a mutation on the basis thereof in his favour and incorporating his
ownership in the Revenue Record.
5. It is urged that respondent No.2 is bound to implement the said decree but
he is not performing his statutory duty and there is no other remedy available
to the petitioner except to invoke the Constitutional jurisdiction of this Court.
Prayer is that a direction be issued to judgment-debtor (respondent No. 1) to
implement the said decree in the aforesaid manner.
6. Through this Constitutional petition, in fact, decree of civil Court is desired

to be enforced/implemented. The petitioner has got remedy of filing an
execution application before the Court which had passed the decree, under rule
10 of Order XXI, C.P.C. which provides that where holder of a decree desire to
execute it, he shall apply to the Court which passed the decree or to die Court
to which it is sent for execution.
7. Decree (Annexure E) which is required to be implemented is purely a

declaratory decree declaring title of the decree-holder in the suit property with
consequential relief of perpetual injunction restraining the judgment debtors
from denying his title and from interfering with his possession over the said
property.
8. A decree, in order to be executed, should be capable of execution i.e. it

should order the doing or restrain the doing of an act.
9. First portion of the decree is purely declaratory and as such cannot be

executed. Second portion thereof provides preventive relief granted under
section 54 of the Specific Relief Act whereby judgment-debtors have been
restrained from denying ownership of the decree-holder and have peen
forbidden to interfere with his possession.
10. It is not complained that any of the judgment-debtors has denied title of or
has interfered with possession of the decree-holder.
11. Demand of the decree-holder (petitioner) is that respondent No.2 (Tehsildar)

a functionary of judgment-debtor No. 1 (Province of Punjab) be directed to
implement the decree by attesting a mutation in favour of the decree-holder and
incorporating his ownership in the Revenue Record. This could have been
possible only if terms of the decree contained a mandatory injunction under
section 55 of the Specific Relief Act to compel performance of the requisite act.
Page No. 3 of 4
12. Copy of Judgment (Annexure B) shows that issuance of mandatory
injunction by way of consequential relief was neither prayed for in the plaint
nor the said relief was granted by the Court. Consequently mandatory
injunction to compel the requisite act was not granted in the decree.
13. A decree is to be executed in accordance with its terms and conditions

without modification.
14. Section 51 of C.P.C. enumerates generally the modes to be adopted by a

Court executing decree. Mode of execution mentioned in clause (e) of section 51,
C.P.C. whereby executing Court is empowered to order execution of the decree
in such other manner as the nature of relief may require, is a residuary clause
and is resorted to when the decree cannot be executed by any of the means
provided by clauses (a) to (d). Clause (e) does not authorise granting
supplementary or alternate relief or a relief not allowed by the decree.
15. It appears that being mindful of the above situation that decree was not
executable, application for its execution/implementation was not filed before
the Court which had passed the decree but was moved before the Tehsildar
(respondent No.2) requiring him to do an act which the terms of the decree did
not direct to be done by the judgment-debtors and on his reluctance to do the
needful now a direction is being sought from the High Court through this
Constitutional petition for directing respondent No.1 (judgment-debtor) to do
that which he is not required by the law to do.
16. For the reasons stated above, the direction sought by the petitioner cannot
be issued, writ petition is accordingly dismissed in limine.
Q.M.H./M.A.K./M-1267/L Petition dismissed.
Page No. 4 of 4
1997 M L D 745
[Chief Court Gilgit]
Before Muhammad Khurshid Khan, Member II
Raja SHAH ZAMAN and others---Appellants
versus
ZAMINDARAN BIRGAL through Representatives---Respondent
J.C. C.S.A. No. 6 of 1994, decided on 8th October, 1995.
Specific Relief Act (I of 1877)---
----S.42---Arbitration' Act (X of 1940), S.17---Civil Procedure Code (V of 1908),

S.47--Declaratory decree---Possession through execution of declaratory
decree---Validity---Suit for declaration and consequential relief wherein no relief
for possession of suit property was sought---Matter in controversy was referred
to Arbitrator who gave award in support of respective rights of parties and same
subsequently became rule of Court---Plaintiff thereafter, filed another suit
wherein he sought possession of land in question but such suit could not
succeed---Plaintiff ultimately filed execution application against declaratory
decree---Effect--Remedy which was neither claimed in suit nor granted either by
Arbitrator or by Court could not be executed during execution proceedings, for
Executing Court could not grant any remedy which was not included in
decree---Only remedy for plaintiff was to file suit for possession---Plaintiff,
however, filed such suit but same was rejected by Trial Court---Plaintiff could
again seek such remedy if same was available to him---Plaintiff in his
application for execution had claimed that he was in possession of land in
question, but was dispossessed---Such fact although was not brought on
record, if true, would also support filing of fresh suit and not for possession
through execution of declaratory decree---Orders of Courts below executing
declaratory decree were set aside and plaintiff's application for execution was
dismissed in circumstances.
PLD 1963 SC 265; PLD 1973 Kar. 686; PLD 1968 SC 342 and PLD 1985 Kar.
705 ref.
Muzaffar Ali and Shafqat Wali for Appellants
Mir Ghulam Sarwar for Respondents.
Page No. 1 of 3
JUDGMENT
The brief facts of the case are that the present appellant Raja Shah Zaman, filed
a civil suit in the Court of Civil Judge, Gupis against the present respondents.
During the pendency of the suit the parties agreed to refer the matter for
arbitration and accordingly the matter was referred to the arbitrators appointed
by the parties. The arbitrators after consideration submitted their award on 30-
8-1983 before the Civil Court Gupis. The trial Judge asked objections against
the award. The present appellant filed objections against the award which were
rejected by the Civil Judge and he cannot succeed right to the Court of Judicial
Commissioner and the award which was made rule of the Court by the Civil
Judge become final.
2. When the first round of litigation was exhausted the present appellant filed a
fresh suit against the respondents before the Civil Judge Gupis on 24-2-1991.
The suit was filed for declaration with consequential relief for possession. The
said suit was decided against the appellant, then he filed the present execution
application. The respondents filed objections which were turned down by both
the Courts below. Hence this appeal.
3. I have gone through the record of the case and have heard the learned
counsel for the parties at length. Admittedly the decree under reference is based
on award and the arbitrators have simply determined the rights of the parties in
respect of the disputed land. The appellant who was himself plaintiff in the
litigation had filed a suit which was purely for declaration with consequential
relief for permanent injunction. There was absolutely no prayer for possession
The arbitrators accordingly passed award in which only rights of the parties
were determined and no decree for possession was awarded in favour of the
plaintiff or defendants. The main contention of the learned counsel for the
appellant was that the declaratory decree based on the award of the arbitration
is not executable and on this basis the decree-holder cannot claim the
possession. They relied on the following case-laws:---
(1) PLD 1963 SC page 265.
(2) PLD 1973 Karachi page 686.
(3) PLD 1968 SC page 342.
(4) PLD 1985 Karachi page 705.
It is held in these case-laws that the decree should be executed in spirit of its
terms and conditions and not in derogation of such terms the executing Court
neither to go behind of what decree stands for nor it to modify those terms.
4. The remedy which is neither claimed in the suit nor granted either by the
arbitrator or by the Court cannot be executed during the execution proceedings
Page No. 2 of 3
because the executing Court cannot grant a remedy which is not in the decree.
The only remedy for the appellant was to file an independent suit for
possession. He did it but the same was rejected by the Trial Court. He can again
seek such remedy if the remedy is available for him.
5. The appellant in his application for execution has claimed that he was in
possession of the land in dispute but subsequently he was dispossessed. This
fact although is not brought on record, if true it also supports for a fresh suit
not for the possession through execution of a declaratory decree.
6. I, therefore, in the light of the above discussions accept this appeal and set
aside the orders of both the Courts below and dismiss the application of the
appellant for execution. Parties to bear their own costs.
A.A./20-G Appeal accepted.
Page No. 3 of 3
1991 M L D 1681
[Lahore]
Before Mian Allah Nawaz, J
KABIR HUSSAIN and 3 others---Petitioners
versus
Mst. IQBAL BIBI and 2 others---Respondents
Civil Revision No.170-D of 1991, decided on 22nd April, 1991.
(a) Muhammadan Law---
----Inheritance---Deceased was survived by one daughter, two widows and one

sister---Parties being Sunni, daughter and widows of deceased were his legal
heirs while his sister was a residuary---In presence of sister, paternal cousins of
deceased were excluded from inheritance as being residuaries of remoter degree
qua sister of deceased.
(b) Civil Procedure Code (V of 1908)---
----S. 115---Muhammadan Law ---Inheritance---Revisional jurisdiction, exercise

of---Finding of Appellate Court was eminently just and in accordance with well-
known principle of Muslim Jurisprudence---Mutation in question, was
incorrectly attested, and rights of parties were brazenly ignored---Finding of
Appellate Court not suffering from any illegality or any factual infirmity, would
not call for interference in revisional jurisdiction.
----S. 47---Specific Relief Act (I of 1877), S.42---Provisions of S.47, Civil

Procedure Code, 1908, pertaining to execution, discharge or satisfaction of
executable decree were not applicable to declaratory decrees passed under
S.42, Specific Relief Act, 1877.
Section 47 of the Civil Procedure Code, 1908, indicates that this section relates
to questions pertaining to execution, discharge or satisfaction of the decree
Page No. 1 of 7
which were executable. In such cases whenever question had arisen between
the parties to decree in respect of execution, discharge or satisfaction of the
decree, the executing Court had been given power to adjudicate such question.
Section 47 of the Civil Procedure Code was not applicable to declaratory decrees
passed under section 42 of the Specific Relief Act, 1877. Such decrees had the
effect of rendering declaration of legal character or any right in property which
was binding on all parties to the suit or persons claiming through them
respectively. From a comparative examination of section 42 of the Specific Relief
Act and section 47 of the Civil Procedure Code it was quite clear that whenever
the right of a party in a property was invaded by erroneous or a fraudulent
entry in revenue record, the said party is entitled to sue for seeking declaration
in respect of his right in such property. Applying these principles to the facts of
the case, it was quite clear that mutation in question, was attested 'incorrectly
against the plaintiffs and so respondents' suit was competent under section 42
of the Specific Relief Act.
(d) Specific Relief Act (I of 1877)---
----S. 42---Limitation Act (IX of 1908), Art.95---Suit for declaration under S.42,
Specific Relief Act, 1877---Plaintiffs grievance was against entry of mutation
incorporated in mutation register---Provisions of Art.95, Limitation Act, 1908
would be applicable when suit was filed for setting aside a decree obtained by
fraud---Plaintiffs suit being for rectification of entries of mutation, Art. 95,
Limitation Act, 1908 was not applicable and suit was filed within limitation.
(e) Specific Relief Act (I of 1877)---
----S. 42---Civil Procedure Code (V of 1908), S.115---Petitioners were not

entitled to inheritance of deceased---Petitioners having involved legal heirs of
deceased in protracted litigation, had obtained part of land from them through
compromise and still feeling unsatisfied got the mutation in question, wrongly
attested depriving lawful heirs of what was left with them ---Revisional
jurisdiction being discretionary in nature, could not be exercised in favour of
petitioners who had come to Court with unclean hands---Revision was
dismissed in circumstances.
Mian M. Zafar Yasin for Petitioners.
ORDER
The dispute in this revision petition pertains to devolution of agricultural land

measuring 115 Bighas situated in Mauza Billi Wala tehsil and District, Multan,
left by late Zahoor Ahmad.
2. Zahoor Ahmad was murdered in year, 1974 and the land was mutated in
favour of following heirs:--
(1)
Mst. Iqbal Bibi (daughter)
1/2 shares
Page No. 2 of 7
(2)
Mst. Hakim Bibi (since dead, widow)
1/6 shares
(3)
Mst. Mumtaz Begum (as a widow)
1/6 shares
(4)
Mst. Sarwar Bibi (as a sister)
1/6 shares
(5)
Kabir Hussain
5/6 shares out of 3/8 share as paternal-cousin of the deceased as residuary).
(6)
Allah Ditta
(7)
Mst. Iqbal Bibi (daughter)
This mutation bearing No.108, dated 20-12-1971 was attested.
3. Against this situation Mst. Hakim Bibi, Mst. Sarwar (herein respondents)
filed appeal before the Collector, while Kabir Hussain, Allah Ditta and
Hafizullah (herein petitioners) filed a suit for declaration to the effect that Mst.
Hakim Bibi was divorced by propositus Zahoor Ahmad in his lifetime, that
neither Mst. Iqbal Bibi was the daughter of Zahoor Ahmad nor Mst. Sarwar Bibi
was his sister. The suit was contested by Mst. Hakim Bibi, Mst. Iqbal Bibi and
Mst. Sarwar Bibi, who took up the position that they were the legal heirs of
Zahoor Ahmad and plaintiffs were not entitled to inherit from the legacy left by
the propositus.
4. During the pendency of the suit, the parties arrived at compromise. The
compromise deed was submitted before the Court on 4-5-1972. The main
feature f the compromise were as follows:--
This deed of compromise was signed by Kabir Hussain, Allah Ditta and
Hafizullah and carried the thumb-impressions of Mst. Hakim Bibi, Mst. Sarwar
Bibi and Muhammad Hussain as a general attorney of Mst. Iqbal Bibi. The
signatures of Advocates of the parties were also appended. The learned trial
Court in accordance with the terms of the compromise deed noted above
decreed the suit. The Revenue Officer attested Mutation No.108 in the following
terms:--
5. On 15-7-1976 Mst. Hakim Bibi (since dead), Mst. Iqbal Bibi and Mst. Sarwar
Bibi brought suit for declaration to the effect that the compromise deed dated 4-
5-1972 was obtained by Kabir Hussain, Allah Ditta, and Hafizullah through
fraud and deception; that Mutation No.108 was, even otherwise, in violation of
compromise deed.
Page No. 3 of 7
6. The suit was contended. The following issues were framed:--
(1) Whether the description of the suit property given in the plaint is incorrect?
O.P.D.
(2) Whether the suit is time-barred? O.P.D.
(3) Whether the plaintiffs are estopped to bring the present suit by their own
conduct? O.P.D.
(4) Whether the suit has not been correctly valued for the purposes of court fee
and jurisdiction? if not, what is the correct valuation? O.P.D.
(5) Whether the suit is barred by the principle of res judicata? O.P.D.
(6) Whether the impugned Mutation No.108 dated 20-12-1971 and the
impugned decree, dated 4-5-1971 are illegal, void and outcome of fraud and are
ineffective against the rights of the plaintiff? O.P.P.
(7) Whether the plaintiffs are the owners in possession of the suit property and
the defendants have no concern with it? O.P.P.
(8) Relief.
7. The learned Civil Judge by judgment and decree, dated 20-1-1988 dismissed
the suit by coming to the conclusion that the suit was barred by time; that the
plaintiffs were estopped to bring the present suit; that suit was barred by
principle of res judicata, that the disputed mutation was correctly attested.
8. Feeling aggrieved, Mst. Hakim Bibi's legal heirs namely, Mst. Iqbal Bibi and
Mst. Sarwar Bibi lodged appeal which was accepted by the District Judge by
means of impugned judgment, dated 13-4-1991. The learned District Judge
concluded that the compromise deed noted above was unexceptionable; that
Mutation No.108 was not attested in accordance with the terms of the
compromise deed noted above; that Kabir Hussain, Hafizullah and Allah Ditta
were entitled to 16 Bighas only and Mst. Mumtaz Begum was entitled to 7
Bighas of the land, while the rest was to be given to parties in accordance with
the principle of Sunni Muslim Law of Inheritance. Learned District Judge held
that the suit was within time and was not hit by the principle of res judicata.
Hence this revision petition.
9. In disputing the correctness of the decree of the first appellate Court, the
learned counsel for the petitioners submitted his arguments on two grounds:--
Page No. 4 of 7
(1) In the first instance, it was argued that the respondents had filed suit
wherein the terms of the compromise/decree, dated 4-5-1972 were impeached.
It was submitted that such suit was not competent in view of the clear bar
contained in section 47 of the C.P.C. According to him the question regarding
discharge, execution and satisfaction of the decree could be only challenged
before the executing Court and not by bringing separate suit. Reliance was
placed on Sri Raja Hommadayara Nagunna Naidu Bahadur Zamindar Oaru and
another v. Ravi Venkatapayya and others A I R 1923 Privy Council 167).
(2) In the second instance it was argued that the suit was governed by Article
95 of Limitation Act, 1908 (IX of 1908) and not by Article 120. According to the
learned counsel the respondents were party to the compromise deed. The
mutation was attested in consonance with the terms of consent decree; that the
suit was filed after the expiry of three years and so was time-barred. Help was
sought from Muhammad Inayat v. Ghulam Murtaza P L D 1987 Lah. 537,
Abdul Wahid v. Abdul Ghani and others P L D 1963 (W.P.) Kar. 990. The
Rawalpindi Central Cooperative Bank Ltd., Rawalpindi v. Raja Muhammad Riaz
Khan PLD 1966 (W.P.) Lah. 912 and Meral Ramanna v. Nallaparaju and others
PLD 1956 SC (India) 220.
10. I have heard the learned counsel for the petitioners at considerable length
and gone through the record with his assistance, and carefully examined the
case-law cited by him. After taking into consideration the contentions of the
learned counsel, the facts of the case, I do not find any force in these
contentions. The facts of the cage from which this revision has arisen, are not
much in dispute. It is uncontested that the dispute relates to legacy of Zahoor
Ahmad; that he was survived by Mst. Iqbal Bibi, Mst. Hakim Bibi, Mst. Mumtaz
Begum and Mst. Sarwar Bibi who were his daughter, widows, and sister,
respectively. The parties are Sunni; that according to the Sunni law of
Inheritance Mst. Iqbal Bibi, Mst. Hakim Bibi, and Mst. Mumtaz Begum were
legal heirs while Mst. Sarwar Bibi was a residuary; that in presence of Mst.
Sarwar Bibi, Kabir Hussain, Allah Ditta and Hafeezullah were excluded from
inheritance as being residuaries of remoter degree qua Mst. Sarwar Bibi. It is
also uncontested that they got instituted a suit in which relationship of legal
heirs was disputed and in such circumstances the compromise deed was
executed on 4-5-1972 wherein these petitioners were successful in having a
share from the legacy of Manzoor Ahmad. From the terms of the compromise it
is clear that they were given 16 Bighas. There is no statement of Mst. Hakim
Bibi and Mst. Iqbal Bibi and Mst. Sarwar Bibi indicating the relinquishment of
their right in favour of anybody; that Mutation No.108 was attested in which
Mst. Iqbal Bibi, Mst. Hakim Bibi and Mst. Sarwar Bibi were excluded. After
taking into consideration these circumstances of the case, the learned District
Judge dealt with the question of rights of the parties in following terms:--
"In view of what has been discussed above I fully agree with the learned counsel
for the applicants that the true and correct import of agreement, Exh.P.19, is
that Mutation No.108 was set at naught by the parties themselves and then
they mutually gave 16 Bighas of the land to respondents Nos.1 to 3 irrespective
of the fact that that they were not entitled to any inheritance. (The learned
counsel for the appellants has called this share as `Jagga Tax' it may be so);
seven Bighas were given to respondent No.5 irrespective whether the appellants
disputed her Nikah with the deceased or not and remaining was left for the
appellants according to their Sharai shares. Consequent to above discussion, I
reverse the findings of learned Civil Judge on issue No.6 and answer it in the
terms mentioned above:'
Page No. 5 of 7
12. Viewed from the aforesaid facts and circumstances of the case, I have no
difficulty in reaching the conclusion that the finding of the learned District
Judge was eminently just and in accordance with well-known principle of
Muslim Jurisprudence. It is quite clear to me that the disputed mutation was
incorrectly attested and the rights of the legal heirs were brazenly ignored. I am,
therefore, of the view that the finding of the learned District Judge does not
suffer from any illegality or any factual infirmity.
13. Having determined the rights of the parties on merits, I proceed to

determine the legal contentions of the learned counsel for the petitioners. In
order to appreciate the legal contentions regarding the unmaintainability of the
suit in view of section 47 of the C.P.C. It is appropriate to examine section 47 of
C.P.C. as well as sections 42 and 43 of the Specific Relief Act, 1877. They are as
follows:-
Section 47.--- (1) All questions arising between the parties to the suit in which
the decree was passed or their representatives, and relating to the execution,
discharge or satisfaction of the decree, shall be determined by the Court
executing the decree and not by a separate suit.
(2) The Court may, subject to any objection as to limitation or jurisdiction, treat
a proceeding under the section as a suit or a suit as a proceeding and may, if
necessary, order payment of any additional court-fees.
(3) Where a question arises as to whether any person is or is not the

representative of a party, such question shall, for the purpose of this section, be
determined by the Court.
Explanation.---For the purposes of this section, a plaintiff whose suit has been
dismissed and a defendant against whom a suit has been dismissed, are parties
to the suit.
Section 42.--- Any person entitled to any legal character, or to any right as to
any property, may institute a suit against any person denying, or interested to
deny, his title to such character or right, and the Court may in its discretion
make therein a declaration that he is so entitled, and the plaintiff need not in
such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff,
being able to seek further relief than mere declaration of title, omits to do so.
Explanation.-- A trustee of property is a person interested to deny a title

adverse to the title of some one who is not in existence, and for whom, if in
existence, he would be a trustee.
Section 43-A.-- A declaration made under this Chapter is binding only on the
parties to the suit, persons claiming through them respectively, and, where any
Page No. 6 of 7
of the parties are trustees, on the persons for whom, if in existence at the date
of the declaration, such parties would be trustees.
14. A bare look at section 47 of the C.P.C., indicates that this section relates to
questions pertaining to execution, discharge or satisfaction of the decree which
are executable. In such cases whenever question arises between the parties to
decree in respect of execution, discharge or satisfaction of the decree, the
executing Court has been given power to adjudicate such questions. Section 47
of the Civil Procedure Code, is not applicable to declaratory decrees passed
under section 42 of the Specific Relief Act, 1877 (1 of 1877). Such decrees have
the effect of rendering declaration of legal character or any right in property
which is binding on all parties to the suit or persons claiming through them
respectively. From a comparative examination of section 42 of the Specific Relief
Act and section 47 of the Civil Procedure Code it is quite clear that whenever
the right of a party in a property is invaded by erroneous or a fraudulent entry
in Revenue Record, the said party is entitled to sue for seeking declaration in
respect of his right in such property. Applying these principles to the facts of
the case, it is quite clear that mutation No.108 was attested incorrectly against
the plaintiffs and so respondents' suit was competent under section 42 of the
Specific Relief Act.
16. As regards the contentions relating to limitation I do not find any force in
it. The suit was filed for declaration under section 42 of the specific Relief Act; it
pertained to a grievance against entry of mutation incorporated in mutation
register; from a bare reference to Article 95 of Limitation Act, it is evident that
this Article is applicable when the suit is filed for setting aside a decree
obtained by fraud. In this case the grievance was two-fold that the consent
decree was based upon fraud and secondly the mutation was not attested in
consonance with the decree.
17. From the perusal of Article 95 of the Limitation Act, 1908 (IX of 1908), it is
quite clear that this Article is only applicable where the relief is for setting aside
the decree obtained by fraud or for further relief on the ground of fraud, and
not otherwise. As shown above, this suit included the relief of declaration that
Mutation No.108 was illegal.
18. Even otherwise, this revision petition is to be looked from another angle, the
revisional jurisdiction is discretionary in nature. In this case, the petitioners
had come to Court with unclean hands. In fact they had no right of inheritance
in the legacy .of Zahoor Ahmad. They have, in fact, involved the legal heirs in
protracted litigation. In this way they have obtained 16 Bighas; still they seem
to be unsatisfied and are dragging the legal heirs in litigation. I am, therefore,
clear in my mind that the petitioners are not entitled to grant of relief in
revisional jurisdiction of this Court.
19. In the light of foregoing analysis I find no merit in this revision petition. In
result, this revision petition fails and is dismissed in limine.
H.B.T./K-330/L Revision dismissed.
Page No. 7 of 7
P L D 1973 Karachi 686
Before Ghulam Rasool K. Shaikh and Agha Ali Hyder, JJ
Khawaja MUHAMMAD YOUSUF-Appellant
Versus
Khawaja ABDUL RASHID AND 2 OTHERS---Respondents
Letters Patent Appeal No. 299 of 1966, decided on 27th June 1973.
Civil Procedure Code (V of 1908)------
------S. 47-Declaratory decree, execution of-Declaratory decree, and executory

decree-Decree not containing any absolute direction but stopping short with
declaring rights and obligations of parties-Decree declaratory in nature and
incapable of execution.
A decree will be declaratory, if it merely declares or creates the right, while in an

executory decree, there is a definite order to a definite person to do or refrain
from doing a certain thing, either forthwith or at a given future date or to the
happening of a certain event.
Where it was clear from the terms of the decree that the decree did not contain
any absolute direction but stopped short with declaring the rights sad the
sought to be enforced through execution proceedings it was held that the decree
under the circumstances would be just declaratory in nature, and, therefore,
incapable of execution.
Mst. Lachmi Bai v. Asudomal 1 S L R 184 ; Gokaldas Divarkadas v. Otandas 2

S L R 33; Lalibai v. Yaliram Ghanshamdas and others 7 S L R 192 ; Bannumal
v. Paras Ram and another A I R 1930 Lah. 110 ; S. Pillai and another v. L.
Pettar and others A I R 1928 Mad. 474 ; Siraj Bakhsh v. Ganga Bakhsh A I R
1927 Oudh 457 ; J Rustomy v. Guranditta Mal A I R 1915 Lah. 207; Gangaram
v. M. Bhatta and another A I R 1937 Mad. 879 1 G. Sanmukhmal v. Mst.
Bhambo A I R 1943 Sind II and Ramanand and others v. Jai Ram and others I L
R 43 All. 170 ref.
H. B. Tayabji for Appellant.
Page No. 1 of 1
A. K. Brohi and Iqbal Ahmad for Respondents.
Dates of hearing: 29th and 30th May 1973.
JUDGMENT
AGHA ALI HYDER, J.-This appeal has arisen out of execution proceedings in
the following circumstances.
2. The appellant and the respondents Nos. 1 and 2 are brothers inter se. The
respondent No. 3 is their father. They jointly owned substantial properties and
business concerns in Pakistan and outside. Differences having arisen in the
family, they decided to refer their dispute to Haji Fazal Karim. as sole arbitrator.
The said arbitrator, with the approval of the parties, made his award on 1-6-
1963. An objection was filed, but the award was made a rule of the Court by a
learned Single Judge, and accordingly a decree was passed on 6-2-1966. As a
result of it, certain specific properties and business fell to the share of the
appellant. In order to make the distribution of the business and immovable
properties equitable, certain specific sums also were awarded to the appellant.
These sums were made payable out of the amounts due to the parties from the
Karachi Development Authority, the Karachi Municipal Corporation and the
Military Engineering Service. Paragraphs 2, 12 & 13 of the decree which are
pertinent In that context read as under :-
"2. (I) The Factory Yousuf Iron & Pipe Mills, Karachi, (2) Kohinoor & Co., and a
house In Machuwa Bazar, Calcutta, and (3) House No. III-A 1/18 situated in
Nazimabad, shall, each of the three, be considered to be the property of the
party of the second part. The party of the 1st part shall nave no proprietary
rights in or business concern with any of these three properties.
12. The party of the second part shall be entitled to the rents and income of
Kohinoor & Co., Calcutta and the douse situated in Machuwa Bazar after April
1961.
13. In addition to the properties and business hereby already awarded to the
party of the second part by this Award, the party of the first part shall pay a
further lump sum or Rs. 60,000 (in Pakistani currency) to Muhammad Yousuf
the party of the second part. In full settlement on account of the cessation of
his interest in the firms and properties mentioned above. The sum of Rs. 60,000
(Rupees sixty thousand only) shall be paid in the following manner: When all
the final payments of the K. D. A. bills are made, and the fixed deposit of Rs.
50,000 is refunded, at that time the party of the first part shall pay the
aforementioned amount to the party of the second part. Besides this amount
and the amount shown in clause 14 below, no party shall claim any thing
against any other party."
3. The appellant in Execution Application No. 17 of 1966, filed on 3-3-1966,

applied for the attachment of the sums payable to the parties by the garnishees
Page No. 2 of 1
and also of the properties of the respondents, as he claimed a sum of Rs.
5,30,000 on account of the rents and profits of Kohinoor Co., and the House in
Machuwa Bazar. Calcutta. It was further stated that 1n due course, an
application would be mad: to the Court to determine the actual amount due
from the respondents.
4. The learned Single Judge allowed the application for the attachment of the
sums in the hands of the garnishees and the payments there-from of the sums
payable to the appellant, but he disallowed the appellant's claim for the
recovery of the amounts by way of rent and profits of the business and the
house awarded under paras. 2 and 12, on the ground that these parts of the
decree were merely declaratory and therefore inexecutable, resulting in this
appeal. The respondents fled a cross-objection, but in the events that have
followed, and need not be re-counted, it is not necessary to advert to the same.
All that remains to see is whether, paras. 2 and 12 of the decree were
declaratory or executory.
5. Mr. Tayabji, learned counsel for the appellant, in the course of his address,
referred us to the following cases-Mst. Lachmi Bai v. Asudomal (1 S L R 184),
Gokaldas Divarkadas v. Otandas (2 S L R 33), Lalibai v. Valiram Ghanshamdus
and others (7 S L R 192), Bannumal v. Paras Ram and another (A I R 1930 Lah.
110), S. Pilloi and another v. L. Petter & others (A I R 1928 Mad. 474), Siraj
Bakhsh v. Ganga Bakhsh (A I R 1927 Orrisa 457.), J. Rustomji v. Guranditta
Mal (A I R 1915 Lah. 207), Gangaram v. M. Bhatta and another (A I R 1937
Mad. 879), G. Sanmukhmal v. Mst. Bhombo (A I R 1943 Sind 11) and
Ramanand and others v. Jai Ram arid others (I L R 43 All. 170). The rule
deducible there from is that decree will be declaratory, if it merely declares or
creates the right, while in an executory decree, "there is a definite order to a
definite person to do or refrain from doing a certain thing, either forthwith or at
a given future date or to the happening of a certain event". The matter is
therefore to be examined in the light of the aforesaid test.
6. It is clear from the terms of the decree set out earlier, that the decree did not
contain any absolute direction. It stopped short with declaring the rights and
the obligations of the parties relating to the property forming the basis of the
claim sought to be enforced through these execution proceedings. There was no
provision therein that the rights so fixed were to be enforced by execution
proceedings much less against the respondents. The decree under the
circumstances would be just declaratory in nature, and, therefore, incapable of
execution.
7. Even on merits, the claim is not sustainable. The learned Single Judge, from
that point of view, considered it expedient In the interest of justice to record the
statement of Khawaja Abdul Rashid, respondent No. 2 before us. No objection
was taken to this step at that time. The appellant did not even indicate his
desire to enter the witness-box himself or produce any body else on his behalf,
to give any other version of the affairs in controversy. No grievance was made of
it in the Memorandum of Appeal either, though Mr. Tayabji, learned counsel for
the appellant has now chosen to find fault with the course adopted. It is rather
belated.
8. Khawaja Abdul Rashid has stated that the rent of the house in Machuwa
Bazar used to be collected by Said Ali and Abdur Rauf, who are Indian
nationals and the business of Kohinoor & Co. was looked after by its employees,
who did not make any remittances to them.
Page No. 3 of 1
9. In the result, I will dismiss the appeal with costs.
GHULAM RASOOL K. SHEIKH, J.-I agree.
K. B. A. Appeal dismissed.
Page No. 4 of 1
Page No. 5 of 1

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